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EXHIBIT 10.2  






$180,000,000

 

CREDIT AGREEMENT

 

among

 

DEARBORN HOLDINGS CORPORATION,



INFRASOURCE INCORPORATED,



as Borrower,



The Several Lenders from Time to Time Parties Hereto,



LASALLE BANK NATIONAL ASSOCIATION,



as Syndication Agent,



and



BARCLAYS BANK PLC,

 

as Administrative Agent

 

Dated as of September 24, 2003 




 

BARCLAYS CAPITAL, as Lead Arranger and Bookrunner 






  



 
 

TABLE OF CONTENTS    
    



	 
	 	 
	 	Page

	SECTION 1. DEFINITIONS
	 	1.1	 	Defined Terms	 	1
	 	1.2	 	Other Definitional Provisions	 	20
	

SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
	 	
 2.1	
 	

Term Commitments	
 	

20
	 	2.2	 	Procedure for Term Loan Borrowing	 	20
	 	2.3	 	Repayment of Term Loans	 	21
	 	2.4	 	Revolving Commitments	 	21
	 	2.5	 	Procedure for Revolving Loan Borrowing	 	21
	 	2.6	 	Swingline Commitment	 	22
	 	2.7	 	Procedure for Swingline Borrowing; Refunding of Swingline Loans	 	22
	 	2.8	 	Commitment Fees, etc.	 	24
	 	2.9	 	Termination or Reduction of Revolving Commitments	 	24
	 	2.10	 	Optional Prepayments	 	24
	 	2.11	 	Mandatory Prepayments and Commitment Reductions	 	24
	 	2.12	 	Conversion and Continuation Options	 	25
	 	2.13	 	Limitations on Eurodollar Tranches	 	26
	 	2.14	 	Interest Rates and Payment Dates	 	26
	 	2.15	 	Computation of Interest and Fees	 	27
	 	2.16	 	Inability to Determine Interest Rate	 	27
	 	2.17	 	Pro Rata Treatment and Payments	 	27
	 	2.18	 	Requirements of Law	 	28
	 	2.19	 	Taxes	 	29
	 	2.20	 	Indemnity	 	31
	 	2.21	 	Change of Lending Office	 	31
	 	2.22	 	Replacement of Lenders	 	32
	 	2.23	 	Prepayment Fees	 	32
	

SECTION 3. LETTERS OF CREDIT
	 	
 3.1	
 	

L/C Commitment	
 	

33
	 	3.2	 	Procedure for Issuance of Letter of Credit	 	33
	 	3.3	 	Fees and Other Charges	 	33
	 	3.4	 	L/C Participations	 	34
	 	3.5	 	Reimbursement Obligation of the Borrower	 	34
	 	3.6	 	Obligations Absolute	 	35
	 	3.7	 	Letter of Credit Payments	 	35
	 	3.8	 	Applications	 	35
	

SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	
 4.1	
 	

Financial Condition	
 	

35
	 	4.2	 	No Change	 	36
	 	4.3	 	Existence; Compliance with Law	 	36
	 	4.4	 	Power; Authorization; Enforceable Obligations	 	36
	 	4.5	 	No Legal Bar	 	37



ii





 

	 	4.6	 	Litigation	 	37
	 	4.7	 	No Default	 	37
	 	4.8	 	Ownership of Property; Liens	 	37
	 	4.9	 	Intellectual Property	 	37
	 	4.10	 	Taxes	 	37
	 	4.11	 	Federal Regulations	 	38
	 	4.12	 	Labor Matters	 	38
	 	4.13	 	ERISA	 	38
	 	4.14	 	Investment Company Act; Other Regulations	 	38
	 	4.15	 	Subsidiaries	 	38
	 	4.16	 	Use of Proceeds	 	38
	 	4.17	 	Environmental Matters	 	39
	 	4.18	 	Accuracy of Information, etc	 	39
	 	4.19	 	Security Documents	 	40
	 	4.20	 	Solvency	 	40
	 	4.21	 	Regulation H	 	40
	 	4.22	 	Certain Documents	 	40
	

SECTION 5. CONDITIONS PRECEDENT
	 	
 5.1	
 	

Conditions to Initial Extension of Credit	
 	

41
	 	5.2	 	Conditions to Each Extension of Credit	 	44
	

SECTION 6. AFFIRMATIVE COVENANTS
	 	
 6.1	
 	

Financial Statements	
 	

44
	 	6.2	 	Certificates; Other Information	 	45
	 	6.3	 	Payment of Obligations	 	47
	 	6.4	 	Maintenance of Existence; Compliance	 	47
	 	6.5	 	Maintenance of Property; Insurance	 	47
	 	6.6	 	Inspection of Property; Books and Records; Discussions	 	47
	 	6.7	 	Notices. Promptly give notice to the Administrative Agent and each Lender of:	 	47
	 	6.8	 	Environmental Laws	 	48
	 	6.9	 	Interest Rate Protection	 	48
	 	6.10	 	Additional Collateral, etc.	 	49
	 	6.11	 	Surveys	 	50
	 	6.12	 	Vehicles	 	50
	 	6.13	 	Flood Insurance	 	51
	

SECTION 7. NEGATIVE COVENANTS
	 	
 7.1	
 	

Financial Condition Covenants.	
 	

51
	 	7.2	 	Indebtedness	 	52
	 	7.3	 	Liens	 	52
	 	7.4	 	Fundamental Changes	 	54
	 	7.5	 	Disposition of Property	 	54
	 	7.6	 	Restricted Payments	 	55
	 	7.7	 	Capital Expenditures	 	55
	 	7.8	 	Investments	 	56
	 	7.9	 	Optional Payments and Modifications of Certain Debt Instruments	 	57





iii





 

	 	7.10	 	Transactions with Affiliates	 	57
	 	7.11	 	Sales and Leasebacks	 	57
	 	7.12	 	Swap Agreements	 	57
	 	7.13	 	Changes in Fiscal Periods	 	57
	 	7.14	 	Negative Pledge Clauses	 	57
	 	7.15	 	Clauses Restricting Subsidiary Distributions	 	58
	 	7.16	 	Lines of Business	 	58
	 	7.17	 	Amendments to Acquisition Documents	 	58
	

SECTION 8. EVENTS OF DEFAULT
	

SECTION 9. THE AGENTS
	 	
 9.1	
 	

Appointment	
 	

62
	 	9.2	 	Delegation of Duties	 	62
	 	9.3	 	Exculpatory Provisions	 	62
	 	9.4	 	Reliance by Administrative Agent	 	63
	 	9.5	 	Notice of Default	 	63
	 	9.6	 	Non-Reliance on Agents and Other Lenders	 	63
	 	9.7	 	Indemnification	 	64
	 	9.8	 	Agent in Its Individual Capacity	 	64
	 	9.9	 	Successor Administrative Agent	 	64
	 	9.10	 	Syndication Agent	 	65
	

SECTION 10. MISCELLANEOUS
	 	
 10.1	
 	

Amendments and Waivers	
 	

65
	 	10.2	 	Notices	 	66
	 	10.3	 	No Waiver; Cumulative Remedies	 	67
	 	10.4	 	Survival of Representations and Warranties	 	67
	 	10.5	 	Payment of Expenses and Taxes	 	67
	 	10.6	 	Successors and Assigns; Participations and Assignments	 	68
	 	10.7	 	Adjustments; Set-off	 	72
	 	10.8	 	Counterparts	 	72
	 	10.9	 	Severability	 	72
	 	10.10	 	Integration	 	72
	 	10.11	 	GOVERNING LAW	 	72
	 	10.12	 	Submission To Jurisdiction; Waivers	 	72
	 	10.13	 	Acknowledgements	 	73
	 	10.14	 	Releases of Guarantees and Liens	 	73
	 	10.15	 	Confidentiality	 	73
	 	10.16	 	WAIVERS OF JURY TRIAL	 	74




iv





 


	SCHEDULES:
	1.1A	 	Commitments
	1.1B	 	Mortgaged Property
	4.4	 	Consents, Authorizations, Filings and Notices
	4.5	 	Orders and Decrees
	4.15	 	Subsidiaries
	4.19(a)	 	UCC Filing Jurisdictions
	4.19(b)	 	Mortgage Filing Jurisdictions
	7.2(d)	 	Existing Indebtedness
	7.3(f)	 	Existing Liens
	7.5(g)	 	Disposed Property
	
EXHIBITS:
	A	 	Form of Guarantee and Collateral Agreement
	B	 	Form of Compliance Certificate
	C	 	Form of Closing Certificate
	D	 	Form of Mortgage
	E	 	Form of Assignment and Assumption
	F	 	Form of Legal Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
	G	 	Form of Exemption Certificate




v








        CREDIT AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this "Agreement"), dated as of
September 24, 2003, among DEARBORN HOLDINGS CORPORATION, a Delaware corporation ("Holdings"), INFRASOURCE INCORPORATED, a Delaware corporation
(the "Borrower"), the several banks and other financial institutions or entities from time to time parties to this Agreement (the
"Lenders"), LASALLE BANK NATIONAL ASSOCIATION, as syndication agent (in such capacity, the "Syndication
Agent"), and BARCLAYS BANK PLC, as administrative agent. 


        The
parties hereto hereby agree as follows: 


SECTION
1. DEFINITIONS 


        1.1    Defined Terms.    As used in this Agreement, the terms listed in this Section 1.1 shall have the
respective meanings set forth in this Section 1.1. 


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


        "ABR Loans": Loans the rate of interest applicable to which is based upon the ABR. 


        "Acquisition": the acquisition by Holdings of the Borrower and certain businesses and assets of the Borrower from the Seller pursuant to
the Acquisition Documentation. 


        "Acquisition Agreement": the Agreement and Plan of Merger, dated as of June 17, 2003 (as amended pursuant to a letter agreement,
dated as of September 24, 2003), among Holdings, Merger Sub, the Borrower and the Seller. 


        "Acquisition Documentation": collectively, the Acquisition Agreement and all schedules, exhibits and annexes thereto and all side letters
and agreements affecting the terms thereof or entered into in connection therewith, including, without limitation, the Volume Agreement and the Seller Note. 



        "Adjustment Date": as defined in the Pricing Grid. 


        "Administrative Agent": Barclays Bank PLC, as the administrative agent for the Lenders under this Agreement and the other Loan Documents,
together with any of its successors. 


        "Affiliate": as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary
voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether
by contract or otherwise. 


        "Agents": the collective reference to the Syndication Agent and the Administrative Agent. 


        "Aggregate Exposure": with respect to any Lender at any time, an amount equal to (a) until the Closing Date, the aggregate amount
of such Lender's Commitments at such time and (b) thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender's Term Loans and (ii) the amount of such
Lender's Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender's Revolving Extensions of Credit then outstanding. 


        "Aggregate Exposure Percentage": with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such time. 


        "Agreement": as defined in the preamble hereto. 





 



        "Applicable Margin": for each Type of Loan, the rate per annum set forth under the relevant column heading below: 



	 
	 	ABR Loans
	 	Eurodollar Loans

	Revolving Loans and Swingline Loans	 	2.50%	 	3.50%
	Term Loans	 	3.50%	 	4.50%;






provided, that on and after the first Adjustment Date occurring after the completion of two full fiscal quarters of the Borrower after the Closing Date,
the Applicable Margin with respect to Revolving Loans and Swingline Loans will be determined pursuant to the Pricing Grid. 


        "Application": an application and agreement, in such form as the Issuing Lender may specify from time to time, requesting the Issuing
Lender to open one or more Letters of Credit and, subject to Section 3.8, governing one or more such Letters of Credit. 


        "Approved Fund": as defined in Section 10.6(b). 


        "Asset Sale": any Disposition of property or series of related Dispositions of property (excluding any such Disposition permitted by
clause (a), (b), (c), (d), (e), (f), (h) or, to the extent the Net Cash Proceeds thereof do not exceed $5,000,000 in the aggregate, (g)) of Section 7.5) that yields gross proceeds
to any Group Member (valued at the initial 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) in excess of $75,000. 


        "Assignee": as defined in Section 10.6(b). 


        "Assignment and Assumption": an Assignment and Assumption, substantially in the form of Exhibit E. 


        "Available Revolving Commitment": as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Revolving Commitment then in effect minus (b) such Lender's Revolving Extensions of Credit then outstanding;  provided, that in calculating
any Lender's Revolving Extensions of Credit for the purpose of determining such Lender's Available Revolving Commitment
pursuant to Section 2.8(a), the aggregate principal amount of Swingline Loans then outstanding shall be deemed to be zero. 


        "Benefitted Lender": as defined in Section 10.7(a). 


        "Board": the Board of Governors of the Federal Reserve System of the United States (or any successor). 


        "Bonded Contracts": as defined in Section 7.3(s). 


        "Borrower": as defined in the preamble hereto. 


        "Borrowing Date": any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans
hereunder. 


        "Business Day": a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by
law to close, provided, that with respect to notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans,
such day is also a day for trading by and between banks in Dollar deposits in the interbank Eurodollar market. 


        "Capital Expenditures": for any period, with respect to any Person, the aggregate of all expenditures by such Person and its Subsidiaries
for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that
should be capitalized under GAAP on a consolidated 


2





 



balance
sheet of such Person and its Subsidiaries. Notwithstanding the foregoing, Capital Expenditures shall not include (i) expenditures with Net Cash Proceeds of substantially concurrent
sales or issuances of Capital Stock to the extent such Net Cash Proceeds are not required to prepay the Loans or reduce the Revolving Commitments (and are not used for other permitted purposes),
(ii) expenditures with Reinvestment Deferred Amounts, (iii) amounts expended in connection with Permitted Acquisitions, (iv) equipment or other property purchased simultaneously
or substantially concurrently with the trade-in of existing equipment or property owned by the Borrower and its Subsidiaries to the extent of the trade-in credit with respect
to the equipment or property being traded-in, and (v) expenditures made with then available Free Excess Cash Flow. 


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


        "Capital Stock": any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing. 


        "Cash Equivalents": (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time
deposits, eurodollar time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-1 (or the
equivalent) by S&P or P-1 (or the equivalent) by Moody's, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease
publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank
satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United
States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by
any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A (or the equivalent) by S&P or A (or the equivalent) by Moody's; (f) securities with maturities of six months or
less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; (g) money
market mutual or similar funds that invest primarily in assets satisfying the requirements of clauses (a) through (f) of this definition; or (h) money market funds that
(i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA (or the equivalent) by S&P and Aaa (or
the equivalent) by Moody's and (iii) have portfolio assets of at least $5,000,000,000. If any asset described in this definition which constitutes a Cash Equivalent on the date of acquisition
thereof by the Borrower or any Subsidiary thereof shall thereafter cease to satisfy any of the applicable criteria described above in this definition (the date on which such cessation shall occur, the
"Non-Qualification Date"), such asset shall, nevertheless, be deemed to constitute a Cash Equivalent until the date which is thirty days
after a Responsible Officer of the Borrower obtains knowledge of such Non-Qualification Date. 


3





 



        "Closing Date": the date on which the conditions precedent set forth in Section 5.1 shall have been satisfied, which date is
September 24, 2003. 


        "Code": the Internal Revenue Code of 1986, as amended from time to time. 


        "Collateral": all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any
Security Document. 


        "Commitment": as to any Lender, the sum of the Term Commitment and the Revolving Commitment of such Lender. 


        "Commitment Fee Rate": 1/2 of 1% per annum. 



        "Commonly Controlled Entity": an entity, whether or not incorporated, that is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group that includes the Borrower and that is treated as a single employer under Section 414 of the Code. 


        "Compliance Certificate": a certificate duly executed by a Responsible Officer substantially in the form of Exhibit B. 


        "Conduit Lender": any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise
required to be made by such Lender and designated by such Lender in a written instrument; provided, that the designation by any Lender of a Conduit
Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating
Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender, and  provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount
pursuant to Section 2.18, 2.19, 2.20 or 10.5 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b) be
deemed to have any Commitment. 


        "Confidential Information Memorandum": the Confidential Information Memorandum dated July 2003 and furnished to certain Lenders. 


        "Connecticut Mortgage: the Open-End Mortgage, Security Agreement, Assignment of Leases and Rents, and Fixture Filing, dated as
of September 24, 2003, made by Electric Services, Inc., as mortgagor, in favor of the Administrative Agent. 


        "Consolidated Adjusted EBITDA": for any period, Consolidated Net Income for such period  plus, without duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period, the sum of
(a) income tax expense, (b) interest expense, amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with
Indebtedness (including the Loans), (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill (including any writedown of
goodwill pursuant to FASB 142)) and organization costs, (e) any extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such period, losses on sales of assets outside of the ordinary course of business),  provided, that the amounts referred to in this
clause (e) shall not, in the aggregate, exceed $10,000,000 for any fiscal year of the Borrower,
(f) expenses or fees incurred in connection with the Acquisition and any Permitted Acquisitions, (g) losses or expenses associated with the extinguishment of Indebtedness,
(h) expenses relating to the grant of stock options or payments or distributions in compliance with Section 7.6(b), (i) severance costs and one-time retention bonuses
payable in connection with the Acquisition, and (j) for any period that includes any or all of the fiscal quarters ended March 31, 2003, June 30, 2003 or September 30,
2003, $1,600,000, $1,600,000 and $1,600,000, respectively, and minus, to the extent included in the statement of such Consolidated Net Income for such
period, the sum of (i) interest income, (ii) any extraordinary, unusual or non-recurring 


4





 



income
or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of the
ordinary course of business) and (iii) income tax credits (to the extent not netted from income tax expense), all as determined on a consolidated basis. For the purposes of calculating
Consolidated Adjusted EBITDA for any period of four consecutive fiscal quarters (each, a "Reference Period"), (i) if at any time during such
Reference Period the Borrower or any Subsidiary shall have made any Material Disposition, the Consolidated Adjusted EBITDA for such Reference Period shall be reduced by an amount equal to the
Consolidated Adjusted EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such Reference Period or increased by an amount equal to the Consolidated
Adjusted EBITDA (if negative) attributable thereto for such Reference Period, in each case calculated as if such Material Disposition occurred on the first day of such Reference Period and
(ii) if during such Reference Period the Borrower or any Subsidiary shall have made a Material Acquisition, Consolidated Adjusted EBITDA for such Reference Period shall be calculated after
giving pro forma effect thereto (including pro forma effect to any Permitted Cost-Savings) as if such Material Acquisition occurred on the
first day of such Reference Period. As used in this definition, "Material Acquisition" means any acquisition of property or series of related
acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration by the Borrower and its Subsidiaries in excess of $500,000; and "Material Disposition" means
any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of $500,000. Notwithstanding anything
contained herein to the contrary, expenses incurred by Holdings under employment contracts referred to in Section 7.6(c)(iv) shall, for the purposes of calculating Consolidated Adjusted
EBITDA of the Borrower and its Subsidiaries, be deemed to constitute expenses of the Borrower. 


        "Consolidated Current Assets": at any date, all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date. 



        "Consolidated Current Liabilities": at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date, but excluding (a) the current portion of any Funded Debt of the
Borrower and its Subsidiaries and (b) without duplication of clause (a) above, all Indebtedness consisting of Revolving Loans or Swingline Loans to the extent otherwise included therein. 


        "Consolidated Fixed Charge Coverage Ratio": for any period, the ratio of (a) Consolidated Adjusted EBITDA for such period less
(i) the aggregate amount actually paid by the Borrower and its Subsidiaries during such period on account of Capital Expenditures (excluding the principal amount of Indebtedness incurred in
connection with such expenditures), (ii) taxes paid in cash during such period, and (iii) any increases in Consolidated Working Capital for such period and plus any decreases in
Consolidated Working Capital during such period to (b) Consolidated Fixed Charges for such period. 


        "Consolidated Fixed Charges": for any period, the sum (without duplication) of (a) Consolidated Interest Expense for such period,
(b) Consolidated Lease Expense for such period and (c) scheduled payments made during such period on account of principal of Indebtedness of the Borrower or any of its Subsidiaries
(including scheduled principal payments in respect of the Term Loans). 


        "Consolidated Interest Coverage Ratio": for any period, the ratio of (a) Consolidated Adjusted EBITDA for such period to
(b) Consolidated Interest Expense for such period. 


        "Consolidated Interest Expense": for any period, total cash interest expense (including that attributable to Capital Lease Obligations) of
the Borrower and its Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries (including all commissions, 


5





 



discounts
and other fees and charges owed with respect to letters of credit and bankers' acceptance financing and net costs under Swap Agreements in respect of interest rates to the extent such net
costs are allocable to such period in accordance with GAAP) minus total cash interest income of the Borrower and its Subsidiaries for such period, all as determined on a consolidated basis in
accordance with GAAP; for any four-quarter period that commences prior to the Closing Date, Consolidated Interest Expense shall be computed for the period (the
"Stub Period") from the first day of such four-quarter period to (but not including) the Closing Date on the assumption that all
Indebtedness incurred on the Closing Date was incurred on the first day of the Stub Period and that the rate of interest applicable thereto on the Closing Date was in effect throughout the Stub
Period. 


        "Consolidated Lease Expense": for any period, the aggregate amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries for such period with respect to leases of real and personal property, determined on a consolidated basis in accordance with GAAP. 



        "Consolidated Leverage Ratio": as at the last day of any period, the ratio of (a) Consolidated Total Debt on such day to
(b) Consolidated Adjusted EBITDA for such period. 


        "Consolidated Net Income": for any period, the consolidated net income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary
of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the
form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary. 


        "Consolidated Total Debt": at any date, the aggregate principal amount of all Indebtedness of the Borrower and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP (excluding (a) surety bonds (and Guarantee Obligations relating thereto), other than those not reimbursed by the Borrower or a
Subsidiary thereof within five (5) Business Days of a drawing thereunder and (b) the obligation of the Borrower to pay an aggregate amount not to exceed $6,000,000 pursuant to the
"earnout" provisions of the Stock Purchase Agreement, dated as of November 15, 2000, among the Borrower, Blair Park Services, Inc., Sunesys, Inc. and the shareholders named
therein). 


        "Consolidated Working Capital": at any date, the excess of Consolidated Current Assets on such date  minus Consolidated Current Liabilities on such date. 



        "Continuing Directors": the directors of Holdings on the Closing Date, after giving effect to the Acquisition and the other transactions
contemplated hereby, and each other director, if, in each case, such other director's nomination for election to the board of directors of Holdings is recommended by a majority of the then Continuing
Directors or such other director receives the vote of the Permitted Investors in his or her election by the shareholders of Holdings. 


        "Contractual Obligation": as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its property is bound. 



        "Control Investment Affiliate": as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person and (b) is organized by such Person primarily for the purpose of making equity or debt investments in one or more companies. For purposes of
this definition, "control" of a Person means the power, directly or indirectly, to direct 


6





 



or
cause the direction of the management and policies of such Person whether by contract or otherwise. 



        "Default": any of the events specified in Section 8, whether or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied. 


        "Disposition": with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition
thereof (provided that the granting of a Lien permitted hereunder shall not constitute a Disposition). The terms "Dispose" and
"Disposed of" shall have correlative meanings. 



        "Dollars" and "$": dollars in lawful currency of the United States. 


        "Domestic Subsidiary": any Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States. 


        "ECF Percentage": 75%; provided, that, with respect to each fiscal year of the Borrower
ending on or after December 31, 2004, the ECF Percentage shall be reduced to 50% if the Consolidated Leverage Ratio as of the last day of such fiscal year is not greater than 2.0 to 1.0. 



        "Environmental Laws": any and all laws, rules, orders, regulations, statutes, ordinances, codes, decrees, enforceable guidelines,
requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, governing or imposing liability or standards of conduct for protection of human health or the
environment, or of employee health and safety insofar as it governs exposure to deleterious or allegedly harmful substances, as has been, is now, or at any time hereafter is in effect. 


        "Environmental Permits": any and all permits, licenses, approvals, registrations, notifications, exemptions and any other authorization
pursuant to any Environmental Law. 


        "ERISA": the Employee Retirement Income Security Act of 1974, as amended from time to time. 


        "Eurocurrency Reserve Requirements": for any day as applied to a Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves) under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve System. 


        "Eurodollar Base Rate": with respect to each day during each Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Page 3750 of the Telerate screen
as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period. In the event that such rate does not appear on Page 3750 of the Telerate screen (or otherwise on
such screen), the "Eurodollar Base Rate" shall be determined by reference to such other comparable publicly available service for displaying eurodollar
rates as may be selected by the Administrative Agent or, in the absence of such availability, by reference to the rate at which the Administrative Agent is offered Dollar deposits at or about
11:00 A.M., New York City time, two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where its eurodollar and foreign currency and exchange
operations are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein. 



        "Eurodollar Loans": Loans the rate of interest applicable to which is based upon the Eurodollar Rate. 


7





 



        "Eurodollar Rate": with respect to each day during each Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the nearest 1/100th of 1%): 



	 	 	Eurodollar Base Rate
 1.00-Eurocurrency Reserve Requirements	 	 





        "Eurodollar Tranche": the collective reference to Eurodollar Loans under a particular Facility the then current Interest Periods with
respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day). 


        "Event of Default": any of the events specified in Section 8, provided that any
requirement for the giving of notice, the lapse of time, or both, has been satisfied. 



        "Excess Cash Flow": for any fiscal year of the Borrower (or, in the case of the fiscal year ended December 31, 2003, for the period
from the Closing Date to December 31, 2003), the excess, if any, of (a) the sum, without duplication, of (i) Consolidated Net Income for such fiscal year (or other period),
(ii) the amount of all non-cash charges (including depreciation and amortization) deducted in arriving at such Consolidated Net Income (excluding any non-cash charge
which is reasonably expected to be paid in cash within 12 months following the date of incurrence thereof), (iii) for each fiscal year of the Borrower commencing on or after
January 1, 2004, decreases in Consolidated Working Capital for such fiscal year (or other period), and (iv) the aggregate net amount of non-cash loss on the Disposition of
property by the Borrower and its Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net
Income minus (b) the sum, without duplication, of (i) the amount of all non-cash credits included in arriving at such
Consolidated Net Income, (ii) the aggregate amount actually paid by the Borrower and its Subsidiaries in cash during such fiscal year (or other period) on account of Capital Expenditures
(excluding the principal amount of Indebtedness incurred in connection with such expenditures), (iii) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such
fiscal year to the extent accompanying permanent optional reductions of the Revolving Commitments and all optional prepayments of Funded Debt of the Borrower and its Subsidiaries (including the Term
Loans and the principal component of Capital Lease Obligations) during such fiscal year (or other period), (iv) the aggregate amount of all regularly scheduled principal payments of Funded Debt
(including the Term Loans) of the Borrower and its Subsidiaries made during such fiscal year (or other period) (other than in respect of any revolving credit facility to the extent there is not an
equivalent permanent reduction in commitments thereunder), (v) for each fiscal year of the Borrower commencing on or after January 1, 2004, increases in Consolidated Working Capital for
such fiscal year (or other period), (vi) the aggregate net amount of non-cash gain on the Disposition of property by the Borrower and its Subsidiaries during such fiscal year (or
other period) (other than sales of inventory in the ordinary course of business), to the extent included in arriving at such Consolidated Net Income, (vii) the aggregate amount included in
Consolidated Net Income for such fiscal year (or other period) in respect of any termination payment pursuant to the Volume Agreement with respect to which a mandatory prepayment is required pursuant
to Section 2.11(e), (viii) distributions paid to Holdings during such fiscal year (or other period) pursuant to Section 7.6, (ix) amounts paid in respect of Permitted
Acquisitions (except to the extent financed with Funded Debt) and (x) the amount of cash (but in no event more than $5,000,000 per year) expended in respect of Investments permitted under
Section 7.8(m). 


        "Excess Cash Flow Application Date": as defined in Section 2.11(d). 


        "Excluded Proceeds": as defined in Section 2.11(c). 


8





 



        "Existing Capital Leases": the Capital Lease Obligations of the Borrower and its Subsidiaries existing on the Closing Date, in an
aggregate principal amount not to exceed $500,000. 


        "Facility": each of (a) the Term Commitments and the Term Loans made thereunder and (b) the Revolving Commitments and the
extensions of credit made thereunder (the "Revolving Facility"). 


        "Federal Funds Effective Rate": for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by Barclays Bank PLC from three federal funds
brokers of recognized standing selected by it. 


        "Fee Payment Date": (a) the third Business Day following the last day of each March, June, September and December and
(b) the last day of the Revolving Commitment Period. 


        "Foreign Subsidiary": any Subsidiary of the Borrower that is not a Domestic Subsidiary. 



        "Free Excess Cash Flow": for any fiscal year of the Borrower, the aggregate amount of Excess Cash Flow for all prior fiscal years (or, in
the case of the fiscal year ending December 31, 2003, for the period commencing on the Closing Date and ending on December 31, 2003) of the Borrower not required to be used to prepay the
Term Loans and reduce Revolving Commitments in accordance with Section 2.11(d), provided that the aggregate amount of Excess Cash Flow that shall
be included in Free Excess Cash Flow shall in no event exceed $30,000,000 and provided, further, that
the amount of Free Excess Cash Flow available at any time shall be reduced by the aggregate amount thereof theretofore used for expenditures that would constitute Capital Expenditures but for
clause (v) of the definition of Capital Expenditures or Investments pursuant to Section 7.8(m)(ii). 


        "Funded Debt": as to any Person, all Indebtedness of such Person that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of more than one year from such date, including all current maturities and current sinking fund payments
in respect of such Indebtedness whether or not required to be paid within one year from the date of its creation and, in the case of the Borrower, Indebtedness in respect of the Loans. 


        "Funding Office": the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from
time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders. 


        "GAAP": generally accepted accounting principles in the United States as in effect from time to time, except that for purposes of
Section 7.1, GAAP shall be determined on the basis of such principles in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial
statements referred to in Section 4.1(b). In the event that any "Accounting Change" (as defined below) shall occur and such change results in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then the Borrower and the Administrative Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to reflect
equitably such Accounting Changes with the desired result that the criteria for evaluating the Borrower's financial condition shall be the same after such Accounting Changes as if such Accounting
Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. "Accounting Changes" refers to changes in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial 


9





 



Accounting
Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC. 


        "GFI": GFI Energy Ventures, LLC. 


        "Governmental Authority": any nation or government, any state or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any
securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners). 


        "Group Members": the collective reference to Holdings, the Borrower and their respective Subsidiaries. 



        "Guarantee and Collateral Agreement": the Guarantee and Collateral Agreement to be executed and delivered by Holdings, the Borrower and
each Subsidiary Guarantor, substantially in the form of Exhibit A. 


        "Guarantee Obligation": as to any Person (the "guaranteeing person"), any obligation,
including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation
by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof;  provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to
the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable,
in which case the amount of such Guarantee Obligation shall be such guaranteeing person's maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith. 



        "Guarantors": the collective reference to Holdings and the Subsidiary Guarantors. 


        "Holdings": as defined in the preamble hereto. 


        "Holdings Common Stock": the common stock of Holdings, $.001 par value per share. 


        "Holdings Initial Shares": the Holdings Common Stock owned by the Sponsors in the aggregate on the Closing Date or any successor security
issued in respect thereof. 


        "Immaterial Subsidiary": at any time, any Subsidiary of the Borrower then having assets with a fair market value of less than $1,000,000;  provided, that if the aggregate
fair market value of all assets then owned by all Subsidiaries of the Borrower that would otherwise constitute
Immaterial Subsidiaries shall exceed $10,000,000, only those such Subsidiaries as shall not then have assets the aggregate fair market value of which is greater than $10,000,000 and as shall be
designated in writing by the Borrower to the Administrative Agent as Immaterial Subsidiaries shall be deemed to constitute Immaterial Subsidiaries. 


10





 



        "Indebtedness": of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables incurred in the ordinary course of such Person's business) to the
extent required to be recorded as a liability on a balance sheet of such Person in accordance with GAAP, (c) all obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations of such Person,
(f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements (unless
cash collateralized with cash and/or Cash Equivalents in a manner permitted by Section 7.3), (g) the liquidation value of all mandatorily redeemable preferred Capital Stock of such
Person, to the extent the holder thereof has a right to cause such preferred Capital Stock to be redeemed by such Person for cash prior to December 31, 2010 (other than as a result of asset
sales and change of control events), (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above,
(i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation (other
than obligations described in clause (f) above secured by cash and/or Cash Equivalents), and (j) for the purposes of Section 8(e) only, all obligations of such Person in respect
of Swap Agreements. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is
liable therefor as a result of such Person's ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not
liable therefor. 


        "Insolvency": with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245
of ERISA. 


        "Insolvent": pertaining to a condition of Insolvency. 



        "Intellectual Property": the collective reference to all rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, technology,
know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom. 


        "Interest Payment Date": (a) as to any ABR Loan (other than any Swingline Loan), the last day of each March, June, September and
December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period, (d) as to any Loan (other than any Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any repayment or prepayment
made in respect thereof and (e) as to any Swingline Loan, the day that such Loan is required to be repaid. 


        "Interest Period": as to any Eurodollar Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case
may be, with respect to such Eurodollar Loan and ending one week (to the extent provided for in Section 2.2) or one, two, three or six months thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest 


11





 



Period
applicable to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than
11:00 A.M., New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto;  provided that, all of the foregoing
provisions relating to Interest Periods are subject to the following: 


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



        the
Borrower may not select an Interest Period (x) for Revolving Loans that would extend beyond the Revolving Termination Date or (y) for Term Loans that would extend
beyond the date final payment is due on the Term Loans; 


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


        the
Borrower shall select Interest Periods so as not to require a payment or prepayment of any Eurodollar Loan during an Interest Period for such Loan. 


        "Investments": as defined in Section 7.8. 


        "Issuing Lender": LaSalle Bank National Association or any affiliate thereof, in its capacity as issuer of any Letter of Credit. 


        "L/C Commitment": $25,000,000. 


        "L/C Obligations": at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5. 


        "L/C Participants": the collective reference to all the Revolving Lenders other than the Issuing Lender. 


        "Lenders": as defined in the preamble hereto; provided, that unless the context otherwise
requires, each reference herein to the Lenders shall be deemed to include any Conduit Lender. 


        "Letters of Credit": as defined in Section 3.1(a). 



        "Lien": any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge or other
security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention
agreement and any capital lease having substantially the same economic effect as any of the foregoing). 


        "Loan": any loan made by any Lender pursuant to this Agreement. 



        "Loan Documents": this Agreement, the Security Documents, the Notes and any amendment, waiver, supplement or other modification to any of
the foregoing. 


        "Loan Parties": each Group Member that is a party to a Loan Document. 


        "Majority Facility Lenders": with respect to either Facility, the holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans or the Total Revolving Extensions of Credit, as the case may be, outstanding under such Facility (or, in the case of the Revolving Facility, prior to any termination of the Revolving
Commitments, the holders of more than 50% of the Total Revolving Commitments). 


12





 



        "Material Adverse Effect": a material adverse effect on (a) the Acquisition, (b) the business, property, operations or
condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole or (c) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights
or remedies of the Administrative Agent or the Lenders hereunder or thereunder. 


        "Materials of Environmental Concern": any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation, molds, pollutants, contaminants, radioactivity, radiofrequency radiation or any other radiation associated with or
allegedly associated with the telecommunications business, and any other substance of any kind that is regulated pursuant to or gives rise to liability under any applicable Environmental Law. 



        "Merger Sub": Dearborn Merger Sub Inc., a Delaware corporation. 


        "Moody's": Moody's Investors Services Inc. 


        "Mortgaged Properties": the real properties listed on Schedule 1.1B, as to which the Administrative Agent for the benefit of the
Secured Parties shall be granted a Lien pursuant to the Mortgages. 


        "Mortgages": each of the mortgages and deeds of trust made by any Loan Party in favor of, or for the benefit of, the Administrative Agent
for the benefit of the Secured Parties, substantially in the form of Exhibit D (with such changes thereto as shall be advisable under the law of the jurisdiction in which such mortgage or deed
of trust is to be recorded). 


        "Multiemployer Plan": a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA. 


        "Net Cash Proceeds": (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as
and when received) of such Asset Sale or Recovery Event, net of attorneys' fees, accountants' fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by
a Lien permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other customary fees, commissions and
expenses actually incurred in connection therewith and net of taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions
and any tax sharing arrangements), and reserves for purchase price adjustments and retained liabilities reasonably expected to be payable by the Borrower and its Subsidiaries within six months of such
Asset Sale, and, solely with respect to any Asset Sale
consummated by a Subsidiary, the pro rata portion of any such proceeds required to be distributed, directly or indirectly, to holders of the Capital Stock of such Subsidiary (other than the Borrower
or any of its Subsidiaries) and (b) in connection with any issuance or sale of Capital Stock or any incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net
of attorneys' fees, investment banking fees, accountants' fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith;  provided, that Net
Cash Proceeds shall not include any trade-in-credits or purchase price reductions received by the Borrower or
any of its Subsidiaries in connection with an exchange of equipment for replacement equipment that is the functional equivalent of such exchanged equipment. 



        "Non-Excluded Taxes": as defined in Section 2.19(a). 


        "Non-U.S. Lender": as defined in Section 2.19(d). 


        "Notes": the collective reference to any promissory note evidencing Loans. 


13





 



        "Obligations": the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to the Administrative Agent
or to any Lender (or, in the case of Specified Swap Agreements, any affiliate of any Lender), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Swap Agreement or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise. 


        "OCM": Oaktree Capital Management, LLC. 


        "Other Taxes": any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document. 


        "Participant": as defined in Section 10.6(c). 


        "PBGC": the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor). 


        "Performance Bonds": performance bonds posted by the Borrower and its Subsidiaries in the ordinary course of business. 



        "Permitted Acquisition": an acquisition by the Borrower or any of its Wholly Owned Subsidiaries of (i) all or substantially all of
the assets, (ii) the assets constituting a line of business or (iii) all or substantially all of the Capital Stock, of any other Person where (a) no Default or Event of Default
shall have occurred and be continuing on the date such Permitted Acquisition is consummated, before or after giving effect thereto, (b) the business acquired (or Person acquired) is principally
engaged in the same line of business (or a business reasonably related thereto) as the Borrower and its Subsidiaries, (c) the Borrower shall be in compliance with the covenants set forth in
Section 7.1 on a pro forma basis (calculated for the relevant period set forth in Section 7.1 as of the date of such acquisition as if such acquisition had occurred on the first day of
the relevant period), for the most recent full fiscal quarter immediately preceding such consummation date for which the relevant financial information has been delivered pursuant to
Section 6.1, (d) the aggregate consideration paid (excluding amounts financed with the Net Cash Proceeds of a substantially concurrent issuance of Capital Stock of Holdings or with
Capital Stock of Holdings as consideration therefor, but including the amount of any Indebtedness or other obligations or liabilities assumed or acquired;  provided, that any earn-out to be paid upon the
satisfaction of conditions not obviously achievable shall not be "consideration paid" until
actually earned and paid) in connection with such Permitted Acquisition, together with the aggregate amount of such consideration paid in connection with all other Permitted Acquisitions during the
term of this Agreement, shall not be in excess of $30,000,000 and (e) after giving effect to such Permitted Acquisition, the sum of (i) the then Available Revolving Commitments plus
(ii) the aggregate amount of cash and Cash Equivalents then held by the Borrower and its Subsidiaries shall be no less than $15,000,000. 


        "Permitted Cost-Savings": in connection with any Permitted Acquisition or Investment, those demonstrable
cost-savings reasonably anticipated by the Borrower as of any date of determination to be achieved in connection with such Permitted Acquisition or Investment, as the case may be, for the 


14





 



12-month
period following the consummation of such Permitted Acquisition or Investment, which cost-savings shall be estimated by the Borrower on a good faith basis as of each
date of determination prior to the inclusion of the applicable cost-savings in the calculation of Permitted Cost-Savings and which Permitted Cost-Savings shall only
be permitted hereunder to the extent they are calculated in accordance with (and would be permitted under) Regulation S-X of the Exchange Act; it is understood and agreed that, for
the avoidance of duplication, no anticipated cost-savings shall be included in the calculation of Permitted Cost-Savings for any period to the extent such anticipated
cost-savings are otherwise reflected in Consolidated Adjusted EBITDA for such period by virtue of the achievement of actual cost-savings that were part of the
cost-savings anticipated to be achieved. 


        "Permitted Investors": the collective reference to the Sponsors and their Control Investment Affiliates. 


        "Person": an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever nature. 



        "Plan": at a particular time, any employee benefit plan that is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA. 


        "Pricing Grid": the table set forth below. 



	Consolidated Leverage Ratio
 
	 	Applicable Margin for

Eurodollar Loans (that are

Revolving Loans or

Swingline Loans)
	 	Applicable Margin for ABR

Loans (that are Revolving

Loans or Swingline Loans)

	32.50 to 1.00	 	3.50%	 	2.50%
	

32.25 to 1.00 but < 2.50 to 1.00	
 	

3.00%	
 	

2.00%
	

32.00 to 1.00 but < 2.25 to 1.00	
 	

2.75%	
 	

1.75%
	

<2.00 to 1.00	
 	

2.50%	
 	

1.50%






For
the purposes of the Pricing Grid, changes in the Applicable Margin resulting from changes in the Consolidated Leverage Ratio shall become effective on the date (the
"Adjustment Date") that is three Business Days after the date on which financial statements are delivered to the Lenders pursuant to Section 6.1
and shall remain in effect until the next change to be effected pursuant to this paragraph. If any financial statements referred to above are not delivered within the time periods specified in
Section 6.1, then, until the date that is three Business Days after the date on which such financial statements are delivered, the highest rate set forth in each column of the Pricing Grid
shall apply. In addition, at all times while an Event of Default shall have occurred and be continuing, the highest rate set forth in each column of the Pricing Grid shall apply. Each determination of
the Consolidated Leverage Ratio pursuant to the Pricing Grid shall be made in a manner consistent with the determination thereof pursuant to Section 7.1. 


        "Pro Forma Balance Sheet": as defined in Section 4.1(a). 


        "Projections": as defined in Section 6.2(c). 



        "Recovery Event": any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding
relating to any asset of any Group Member. 


        "Refunded Swingline Loans": as defined in Section 2.7(b). 


        "Register": as defined in Section 10.6(b). 


15





 



        "Regulation U": Regulation U of the Board as in effect from time to time. 


        "Reimbursement Obligation": the obligation of the Borrower to reimburse the Issuing Lender pursuant to Section 3.5 for amounts
drawn under Letters of Credit. 


        "Reinvestment Deferred Amount": with respect to any Reinvestment Event, an amount equal to the aggregate Net Cash Proceeds received by any
Group Member in connection therewith that are not applied to prepay the Term Loans or reduce the Revolving Commitments pursuant to Section 2.11(c) as a result of the delivery of a Reinvestment
Notice. 


        "Reinvestment Event": any Asset Sale or Recovery Event in respect of which the Borrower has delivered a Reinvestment Notice. 


        "Reinvestment Notice": a written notice executed by a Responsible Officer stating that no Event of Default has occurred and is continuing
and that the Borrower (directly or indirectly through a Subsidiary) intends and expects to use an amount equal to all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event
to acquire or repair assets useful in its business. 


        "Reinvestment Prepayment Amount": with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to acquire or repair assets useful in the Borrower's or its Subsidiaries' business. 


        "Reinvestment Prepayment Date": with respect to any Reinvestment Event, the earlier of (a) the date occurring twelve months after
such Reinvestment Event and (b) the date on which the Borrower (directly or indirectly through a Subsidiary) shall have determined not to, or shall have otherwise
ceased to, acquire or repair assets useful in the Borrower's or its Subsidiaries' business with all or any portion of the relevant Reinvestment Deferred Amount. 


        "Reorganization": with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA. 


        "Reportable Event": any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043. 


        "Required Lenders": at any time, the holders of more than 50% of (a) until the Closing Date, the Commitments then in effect and
(b) thereafter, the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding and (ii) the Total Revolving Commitments then in effect or, if the
Revolving Commitments have been terminated, the Total Revolving Extensions of Credit then outstanding. 



        "Requirement of Law": as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject. 


        "Responsible Officer": the chief executive officer, president or chief financial officer or treasurer of the Borrower, but in any event,
with respect to financial matters, the chief financial officer or treasurer of the Borrower. 


16









   
        "Restricted Payments": as defined in Section 7.6. 


        "Revolving Commitment": as to any Lender, the obligation of such Lender, if any, to make Revolving Loans and participate in Swingline
Loans and Letters of Credit in an aggregate principal and/or face amount not to exceed the amount set forth under the heading "Revolving Commitment" opposite such Lender's name on Schedule 1.1A
or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The original amount of the Total
Revolving Commitments is $40,000,000. 


        "Revolving Commitment Period": the period from and including the Closing Date to the Revolving Termination Date. 


        "Revolving Extensions of Credit": as to any Revolving Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Loans held by such Lender then outstanding, (b) such Lender's Revolving Percentage of the L/C Obligations then outstanding and (c) such Lender's Revolving
Percentage of the aggregate principal amount of Swingline Loans then outstanding. 


        "Revolving Lender": each Lender that has a Revolving Commitment or that holds Revolving Loans. 


        "Revolving Loans": as defined in Section 2.4(a). 


        "Revolving Percentage": as to any Revolving Lender at any time, the percentage which such Lender's Revolving Commitment then constitutes
of the Total Revolving Commitments or, at any time after the Revolving Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender's Revolving
Loans then outstanding constitutes of the aggregate principal amount of the Revolving Loans then outstanding, provided, that, in the event that the
Revolving Loans are paid in full prior to the reduction to zero of the Total Revolving Extensions of Credit, the Revolving Percentages shall be determined in a manner designed to ensure that the other
outstanding Revolving Extensions of Credit shall be held by the Revolving Lenders on a comparable basis. 


        "Revolving Termination Date": September 24, 2009. 


        "S&P": Standard & Poor's Ratings Services (a division of McGraw-Hill Companies, Inc.). 


        "SEC": the Securities and Exchange Commission, any successor thereto and any analogous Governmental Authority. 


        "Secured Parties": as such term is defined in the Guarantee and Collateral Agreement. 



        "Security Documents": the collective reference to the Guarantee and Collateral Agreement, the Mortgages and all other security documents
hereafter delivered to the Administrative Agent granting a Lien on any property of any Person to secure the obligations and liabilities of any Loan Party under any Loan Document. 


        "Seller": Exelon Enterprises Company, LLC, a Pennsylvania limited liability company. 


        "Seller Note": the Subordinated Promissory Note in a principal amount not to exceed $30,000,000 (plus any accretions resulting from the
payment of interest in kind), dated the Closing Date, made by Holdings to the order of the Seller. 


        "Single Employer Plan": any Plan that is covered by Title IV of ERISA, but that is not a Multiemployer Plan. 


        "Solvent": when used with respect to any Person, means that, as of any date of determination, (a) the amount of the "present fair
saleable value" of the assets of such Person will, as of such date, exceed the amount of all "liabilities of such Person, contingent or otherwise", as of such date, as such 


17





 



quoted
terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such
Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will
not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this
definition, (i) "debt" means liability on a "claim", and (ii) "claim" means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a
right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured. The amount of any
contingent claim at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an
actual or matured claim. 


        "Specified Swap Agreement": any Swap Agreement entered into by the Borrower and any Lender or affiliate thereof in respect of interest
rates. 


        "Sponsors": GFI, OCM or one or more of their respective Affiliates. 


        "Subsidiary": as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or
more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower. 


        "Subsidiary Guarantor": each Subsidiary of the Borrower other than any Foreign Subsidiary. 


        "Surety": as defined in Section 7.3(s). 



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



        "Swingline Commitment": the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.6 in an aggregate
principal amount at any one time outstanding not to exceed $5,000,000. 


        "Swingline Lender": Barclays Bank PLC, in its capacity as the lender of Swingline Loans. 


        "Swingline Loans": as defined in Section 2.6(a). 


        "Swingline Participation Amount": as defined in Section 2.7(c). 


        "Syndication Agent": as defined in the preamble hereto. 


        "Telecommunications Subsidiaries": the collective reference to Sunesys, Inc., Sunesys of Virginia, Inc., Blair Park
Services, Inc. and RJE Telecom Inc. 


18





 



        "Term Commitment": as to any Lender, the obligation of such Lender, if any, to make a Term Loan to the Borrower in a principal amount not
to exceed the amount set forth under the heading "Term Commitment" opposite such Lender's name on Schedule 1.1A. The original aggregate amount of the Term Commitments is $140,000,000. 


        "Term Lender": each Lender that has a Term Commitment or that holds a Term Loan. 


        "Term Loan": as defined in Section 2.1. 



        "Term Percentage": as to any Term Lender at any time, the percentage which such Lender's Term Commitment then constitutes of the aggregate
Term Commitments (or, at any time after the Closing Date, the percentage which the aggregate principal amount of such Lender's Term Loans then outstanding constitutes of the aggregate principal amount
of the Term Loans then outstanding). 


        "Title Insurance Company": as defined in Section 6.11. 


        "Total Revolving Commitments": at any time, the aggregate amount of the Revolving Commitments then in effect. 



        "Total Revolving Extensions of Credit": at any time, the aggregate amount of the Revolving Extensions of Credit of the Revolving Lenders
outstanding at such time. 


        "Transferee": any Assignee or Participant. 


        "Type": as to any Loan, its nature as an ABR Loan or a Eurodollar Loan. 


        "United States": the United States of America. 


        "Vehicles": as defined in the Guarantee and Collateral Agreement. 


        "Volume Agreement": the Volume Agreement, dated as of the Closing Date, between the Seller and Holdings, substantially in the form of
Exhibit C to the Acquisition Agreement. 


        "Wholly Owned Subsidiary": as to any Person, any other Person all of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries. 



        "Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower. 


        1.2    Other Definitional Provisions.    



        (a)   Unless
otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto. 


        (b)   As
used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating
to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP,
(ii) the words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation", (iii) the word "incur" shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words "incurred" and "incurrence" shall have correlative meanings), (iv) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold
interests and contract rights, and (v) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual
Obligations as amended, supplemented, restated or otherwise modified from time to time. 



19





 




        (c)   The
words "hereof", "herein" and "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified. 


        (d)   The
meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. 



SECTION 2.    AMOUNT AND TERMS OF COMMITMENTS 



        2.1    Term Commitments.    Subject to the terms and conditions hereof, each Term Lender severally agrees to make a
term loan (a "Term Loan") to the Borrower on the Closing Date in an amount not to exceed the amount of the Term Commitment of such Lender. The Term Loans may from time to time be Eurodollar Loans or
ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.12. 


        2.2    Procedure for Term Loan Borrowing.    The Borrower shall give the Administrative Agent irrevocable notice by
telecopy or electronic mail (which electronic mail shall include a PDF copy of such notice executed by a Responsible Officer) (which notice must be received by the Administrative Agent prior to
10:00 A.M., New York City time, one Business Day prior to the anticipated Closing Date) requesting that the Term Lenders make the Term Loans on the Closing Date and specifying the amount to be
borrowed. The Term Loans made on the Closing Date shall initially be ABR Loans, and, unless otherwise agreed by the Administrative Agent in its sole discretion, no Term Loan may be converted into or
continued as a Eurodollar Loan having an Interest Period in excess of one week prior to the date that is 60 days after the Closing Date. Upon receipt of such notice the Administrative Agent
shall promptly notify each Term Lender thereof. Not later than 12:00 Noon, New York City time, on the Closing Date each Term Lender shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds equal to the Term Loan or Term Loans to be made by such Lender. The Administrative Agent shall credit the account of the Borrower on the books of such
office of the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by the Term Lenders in immediately available funds. 


20





 

        2.3    Repayment of Term Loans.    



        (a)   The
Term Loan of each Term Lender shall mature in 28 consecutive quarterly installments, each of which shall be in an amount equal to such Lender's Term Percentage
multiplied by the amount set forth below opposite such installment: 



	Installment
 
	 	Principal Amount

	December 31, 2003	 	$	350,000
	March 31, 2004	 	$	350,000
	June 30, 2004	 	$	350,000
	September 30, 2004	 	$	350,000
	December 31, 2004	 	$	350,000
	March 31, 2005	 	$	350,000
	June 30, 2005	 	$	350,000
	September 30, 2005	 	$	350,000
	December 31, 2005	 	$	350,000
	March 31, 2006	 	$	350,000
	June 30, 2006	 	$	350,000
	September 30, 2006	 	$	350,000
	December 31, 2006	 	$	350,000
	March 31, 2007	 	$	350,000
	June 30, 2007	 	$	350,000
	September 30, 2007	 	$	350,000
	December 31, 2007	 	$	350,000
	March 31, 2008	 	$	350,000
	June 30, 2008	 	$	350,000
	September 30, 2008	 	$	350,000
	December 31, 2008	 	$	350,000
	March 31, 2009	 	$	350,000
	June 30, 2009	 	$	350,000
	September 30, 2009	 	$	350,000
	December 31, 2009	 	$	350,000
	March 31, 2010	 	$	350,000
	June 30, 2010	 	$	350,000
	September 30, 2010	 	$	130,550,000






        2.4    Revolving Commitments.    



        (a)   Subject
to the terms and conditions hereof, each Revolving Lender severally agrees to make revolving credit loans ("Revolving Loans") to the Borrower from time to time
during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added
to such Lender's Revolving Percentage of the sum of (i) the L/C Obligations then outstanding and (ii) the aggregate principal amount of the Swingline Loans then outstanding (in each
case, after giving effect to such Revolving Loans), does not exceed the amount of such Lender's Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving
Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and 2.12. 


        (b)   The
Borrower shall repay all outstanding Revolving Loans on the Revolving Termination Date. 



21





 





        2.5    Procedure for Revolving Loan Borrowing.    The Borrower may borrow under the Revolving Commitments during the
Revolving Commitment Period on any Business Day, provided that the Borrower shall give the Administrative Agent irrevocable notice by telecopy or electronic mail (which electronic mail shall include a
PDF copy of such notice executed by a Responsible Officer) (which notice must be received by the Administrative Agent prior to 11:00 A.M., New York City time, (a) three Business Days
prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date, in the case of ABR Loans) (provided that any such notice
of a borrowing of ABR Loans under the Revolving Facility to finance payments required by Section 3.5 may be given not later than 11:00 A.M., New York City time, on the date of the
proposed borrowing), specifying (i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the initial Interest Period therefor. Any Revolving Loans made on the Closing Date shall initially be ABR Loans. Each
borrowing under the Revolving Commitments shall be in an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if the then aggregate
Available Revolving Commitments are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof; provided,
that the Swingline Lender may request, on behalf of the Borrower, borrowings under the Revolving Commitments that are ABR Loans in other amounts pursuant to Section 2.7. Upon receipt of any
such notice from the Borrower, the Administrative Agent shall promptly notify each Revolving Lender thereof. Each Revolving Lender will make the amount of its pro rata share of each borrowing
available to the Administrative Agent for the account of the Borrower at the Funding Office prior to 12:00 Noon, New York City time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available to the Administrative Agent by the Revolving Lenders and in like funds as received by the Administrative Agent. 


        2.6    Swingline Commitment.    



        (a)   Subject
to the terms and conditions hereof, the Swingline Lender agrees to make a portion of the credit otherwise available to the Borrower under the Revolving
Commitments from time to time during the Revolving Commitment Period by making swing line loans ("Swingline Loans") to the Borrower; provided that (i) the aggregate principal amount of
Swingline Loans outstanding at any time shall not exceed the Swingline Commitment then in effect (notwithstanding that the Swingline Loans outstanding at any time, when aggregated with the Swingline
Lender's other outstanding Revolving Loans, may exceed the Swingline Commitment then in effect) and (ii) the Borrower shall not request, and the Swingline Lender shall not make, any Swingline
Loan if, after giving effect to the making of such Swingline Loan, the aggregate amount of the Available Revolving Commitments would be less than zero. During the Revolving Commitment Period, the
Borrower may use the Swingline Commitment by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof. Swingline Loans shall be ABR Loans only. 



        (b)   The
Borrower shall repay to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Termination Date and the first
date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least five Business Days after such Swingline Loan is made;  provided that on each date that a Revolving
Loan is borrowed, the Borrower shall repay all Swingline Loans then outstanding. 



22





 





        2.7    Procedure for Swingline Borrowing; Refunding of Swingline Loans.    



        (a)   Whenever
the Borrower desires that the Swingline Lender make Swingline Loans it shall give the Swingline Lender irrevocable telephonic notice confirmed promptly in
writing (which telephonic notice must be received by the Swingline Lender not later than 1:00 P.M., New York City time, on the proposed Borrowing Date), specifying (i) the amount to be
borrowed and (ii) the requested Borrowing Date (which shall be a Business Day during the Revolving Commitment Period). Each borrowing under the Swingline Commitment shall be in an amount equal
to $500,000 or a whole multiple of $100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on the Borrowing Date specified in a notice in respect of Swingline Loans, the
Swingline Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of the Swingline Loan to be made by the Swingline
Lender. The Administrative Agent shall transmit such funds to the Borrower on or before 4:00 P.M., New York City time, on such Borrowing Date (the account in which such funds shall be deposited
shall be designated in writing to the Administrative Agent). 


        (b)   The
Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the
Swingline Lender to act on its behalf), on one Business Day's notice given by the Swingline Lender no later than 12:00 Noon, New York City time, request each Revolving Lender to make, and each
Revolving Lender hereby agrees to make, a Revolving Loan, in an amount equal to such Revolving Lender's Revolving Percentage of the aggregate amount of the Swingline Loans (the  "Refunded Swingline Loans") outstanding on the date of such notice, to repay the Swingline Lender. Each Revolving Lender shall make the amount of such
Revolving Loan available to the Administrative Agent at the Funding Office in immediately available funds, not later than 11:00 A.M., New York City time, one Business Day after the date of such
notice. The proceeds of such Revolving Loans shall be immediately made available by the Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the
Refunded Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to charge the Borrower's accounts with the Administrative Agent (up to the amount available in each such account) in
order to immediately pay the amount of such Refunded Swingline Loans to the extent amounts received from the Revolving Lenders are not sufficient to repay in full such Refunded Swingline Loans. 


        (c)   If
prior to the time a Revolving Loan would have otherwise been made pursuant to Section 2.7(b), one of the events described in Section 8(g) shall have
occurred and be continuing with respect to the Borrower or if for any other reason, as determined by the Swingline Lender in its sole discretion, Revolving Loans may not be made as contemplated by
Section 2.7(b), each Revolving Lender shall, on the date such Revolving Loan was to have been made pursuant to the notice referred to in Section 2.7(b), purchase for cash an undivided
participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the "Swingline Participation Amount") equal
to (i) such Revolving Lender's Revolving Percentage times (ii) the sum of the aggregate principal amount of Swingline Loans then
outstanding that were to have been repaid with such Revolving Loans. 


        (d)   Whenever,
at any time after the Swingline Lender has received from any Revolving Lender such Lender's Swingline Participation Amount, the Swingline Lender receives any
payment on account of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender's  pro rata portion of such
payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due);  provided, however, that in the event that
such payment received by the Swingline 



23





 




Lender
is required to be returned, such Revolving Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender. 


        (e)   Each
Revolving Lender's obligation to make the Loans referred to in Section 2.7(b) and to purchase participating interests pursuant to Section 2.7(c) shall
be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Revolving Lender or the
Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure
to satisfy any of the other conditions specified in Section 5, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this
Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Revolving Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing. 




        2.8    Commitment Fees, etc.    



        (a)   The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a commitment fee for the period from and including the date hereof to the
last day of the Revolving Commitment Period, computed at the Commitment Fee Rate on the average daily amount of the Available Revolving Commitment of such Lender during the period for which payment is
made, payable quarterly in arrears on each Fee Payment Date, commencing on the first such date to occur after the date hereof. 


        (b)   The
Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates as set forth in any fee agreements with the Administrative Agent and to
perform any other obligations contained therein. 




        2.9    Termination or Reduction of Revolving Commitments.    The Borrower shall have the right, upon not less than
three Business Days' notice to the Administrative Agent, to terminate the Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments; provided that no such
termination or reduction of Revolving Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Loans and Swingline Loans made on the effective date
thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving Commitments. Any such reduction shall be in an amount equal to $500,000, or a whole multiple thereof (unless such
reduction is with respect to all remaining Revolving Commitments or pursuant to Section 2.11(f)), and shall reduce permanently the Revolving Commitments then in effect. 



        2.10    Optional Prepayments.    The Borrower may at any time and from time to time prepay the Loans, in whole or in
part, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent no later than 11:00 A.M., New York City time, three Business Days prior thereto, in the case of
Eurodollar Loans, and no later than 11:00 A.M., New York City time, one Business Day prior thereto, in the case of ABR Loans, which notice shall specify the date and amount of prepayment,
whether the prepayment is of Eurodollar Loans or ABR Loans and whether the prepayment is of Revolving Loans or Term Loans; provided, that if a Eurodollar Loan is prepaid on any day other than the last
day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.20 and, provided, further, that the provisions of Section 2.23 shall be
applicable to certain prepayments of the Term Loans made pursuant to this Section prior to the second anniversary of the Closing Date to the extent required by such Section 2.23. Upon receipt
of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans
and Revolving Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple of 


24





 



$500,000
in excess thereof. Partial prepayments of Swingline Loans shall be in an aggregate principal amount of $100,000 or a whole multiple thereof. 


        2.11    Mandatory Prepayments and Commitment Reductions.    



        (a)   If
any Capital Stock shall be issued by any Group Member in an initial public offering, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied no later
than three Business Days after the date of such issuance toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(f). 


        (b)   If
any Indebtedness shall be incurred by any Group Member (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net
Cash Proceeds thereof shall be applied no later than three Business Days after the date of such incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set
forth in Section 2.11(f); provided, that the provisions of Section 2.23 shall be applicable to prepayments of the Term Loans required to
be made pursuant to this paragraph prior to the second anniversary of the Closing Date. 


        (c)   If
on any date any Group Member shall receive Net Cash Proceeds (other than Excluded Proceeds (as defined below)) from any Asset Sale or Recovery Event then, unless a
Reinvestment Notice shall be delivered in respect thereof within ten Business Days after such receipt, such Net Cash Proceeds shall be applied no later than ten Business Days after such receipt toward
the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(f); provided, that, notwithstanding
the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed
$5,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment
Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(f). Notwithstanding anything contained in this
paragraph (c) to the contrary, no mandatory prepayment of Term Loans or reduction of the Revolving Commitments shall be required for the first $5,000,000 of aggregate Net Cash Proceeds received
by the Group Members from Asset Sales and Recovery Events subsequent to the Closing Date (the "Excluded Proceeds"). The provisions of
Section 2.23 shall be applicable to certain prepayments of the Term Loans required to be made pursuant to this paragraph prior to the second anniversary of the Closing Date to the extent
required by such Section 2.23. 


        (d)   If,
for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2003 (or, in the case of the fiscal year ended December 31,
2003, for the period from the Closing Date to December 31, 2003), there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF
Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(f). Each such prepayment and commitment
reduction shall be made on a date (an "Excess Cash Flow Application Date") no later than five Business Days after the earlier of (i) the date on
which the financial statements of the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and
(ii) the date such financial statements are actually delivered. 


        (e)   If
on any date Holdings shall receive a termination payment from the Seller pursuant to Section 1 or Section 2 of the Volume Agreement, an amount equal to
75% of such payment shall be applied no later than five Business Days after the date of such payment toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth
in Section 2.11(f). 



25





 




        (f)    Amounts
to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.11 shall be applied,  first, to the prepayment of the Term Loans in accordance with
Section 2.17(b) and, second, to
reduce permanently the Revolving Commitments. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any,
that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate
principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the
extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of
the Secured Parties on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.11 shall be made,  first, to ABR Loans and,
second, to Eurodollar Loans. Each prepayment of the Loans under this
Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. 




        2.12    Conversion and Continuation Options.    



        (a)   The
Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by giving the Administrative Agent prior irrevocable notice of such election no later
than 11:00 A.M., New York City time, on the Business Day preceding the proposed conversion date, provided that any such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent prior irrevocable notice of such election no
later than 11:00 A.M., New York City time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor),
provided that no ABR Loan under a particular Facility may be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority
Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such conversions. Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof. 


        (b)   Any
Eurodollar Loan may be rolled over as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to
the Administrative Agent, in accordance with the applicable provisions of the term "Interest Period" set forth in Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan under a particular Facility may be rolled over as such when any Event of Default has occurred and is continuing
and the Administrative Agent has or the Majority Facility Lenders in respect of such Facility
have determined in its or their sole discretion not to permit such continuations, and provided, further,
that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. 




        2.13    Limitations on Eurodollar Tranches.    Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions and continuations of Eurodollar Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after giving
effect thereto, the aggregate principal amount of (i) the Revolving Loans that are Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $1,000,000 or a whole multiple of
$500,000 in excess thereof and (ii) the Term Loans that are Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $3,000,000 or a whole multiple of $500,000 in excess thereof
and (b) no more than ten Eurodollar Tranches shall be outstanding at any one time. 


26





 

        2.14    Interest Rates and Payment Dates.    



        (a)   Each
Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for
such day plus the Applicable Margin. 


        (b)   Each
ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable Margin. 


        (c)   (i) If
all or a portion of the principal amount of any Loan or Reimbursement Obligation shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to (x) in the case of the Loans, the rate that would otherwise be applicable thereto pursuant to
the foregoing provisions of this Section plus 2% or (y) in the case of Reimbursement Obligations, the rate applicable to ABR Loans under the
Revolving Facility plus 2%, and (ii) if all or a portion of any interest payable on any Loan or Reimbursement Obligation or any commitment fee or
other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate
then applicable to ABR Loans under the relevant Facility plus 2% (or, in the case of any such other amounts that do not relate to a particular Facility,
the rate then applicable to ABR Loans under the Revolving Facility plus 2%), in each case, with respect to clauses (i) and (ii) above,
from the date of such non-payment until such amount is paid in full (as well after as before judgment). 


        (d)   Interest
shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to
paragraph (c) of this Section shall be payable from time to time on demand. 




        2.15    Computation of Interest and Fees.    



        (a)   Interest
and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to ABR
Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements shall become effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate. 


        (b)   Each
determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the
Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.14(a). 




        2.16    Inability to Determine Interest Rate.    


        If
prior to the first day of any Interest Period: 



        (a)   the
Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or 



        (b)   the
Administrative Agent shall have received notice from the Majority Facility Lenders in respect of the relevant Facility that the Eurodollar Rate determined or to be
determined for such 



27





 




Interest
Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as ABR Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be converted,
on the last day of the then-current Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to convert Loans under the relevant Facility to Eurodollar Loans. 




        2.17    Pro Rata Treatment and Payments.    



        (a)   Each
borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the
Lenders shall be made pro rata according to the respective Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders. 


        (b)   Each
payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro
rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans shall
be applied to reduce the then remaining installments of the Term Loans, pro rata based upon the respective then remaining principal amounts thereof,
except that mandatory prepayments made pursuant to Section 2.11(d) shall be applied to reduce the then remaining installments of the Term Loans in the direct order of their stated maturity.
Amounts prepaid on account of the Term Loans may not be reborrowed. 


        (c)   Each
payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders. 


        (d)   All
payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds
as received. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the
result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension
of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension. 



        (e)   Unless
the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute
its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time
on 



28





 




the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective
Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans under the relevant Facility, on demand, from the Borrower. 


        (f)    Unless
the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the
Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be
required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment
is not made to the Administrative Agent by the Borrower within three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any
amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower. 




        2.18    Requirements of Law.    



        (a)   If
the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof: 



          (i)  shall
subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by Section 2.19 and changes in the rate of tax on the overall net
income of such Lender); 


         (ii)  shall
impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or
for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the
Eurodollar Rate; or 


        (iii)  shall
impose on such Lender any other condition; 





and
the result of any of the foregoing is to increase the cost (other than taxes that are not Non-Excluded Taxes) to such Lender, by an amount that such Lender deems to be material, of
making, converting into, continuing or maintaining Eurodollar Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such
case, the Borrower shall promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable. If any Lender
becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has
become so entitled. 


29





 

        (b)   If
any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application
thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender's or such corporation's capital as a consequence of its obligations hereunder or under
or in respect of any Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower
(with a copy to the Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for
such reduction. 


        (c)   A
certificate setting forth in reasonable detail any additional amounts payable pursuant to this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section, the Borrower shall not be required to compensate a Lender pursuant
to this Section for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower of such Lender's intention to claim compensation therefor;  provided that, if the
circumstances giving rise to such claim have a retroactive effect, then such six-month period shall be extended to
include the period of such retroactive effect. The obligations of the Borrower pursuant to this Section shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder. 




        2.19    Taxes.    



        (a)   All
payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes (including branch profits taxes) and franchise taxes imposed on the Administrative Agent or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other
Loan Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") or Other Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any Lender hereunder, (i) the Borrower shall be entitled to make such deduction, (ii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law and (iii) the amounts so payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement, provided, however, that the Borrower shall not be required to increase any such amounts payable to any Lender with respect to any
Non-Excluded Taxes (i) that are attributable to such Lender's failure to comply with the requirements of paragraph (d) or (e) of this Section or (ii) that are
United States withholding taxes imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement, except to the extent that such Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph. 



30





 

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


        (c)   Whenever
any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as reasonably possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of the relevant Lender, as the case may be, a certified copy of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts
or other required documentary evidence, the Borrower shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. 


        (d)   Each
Lender (or Transferee) that is not a "U.S. Person" as defined in Section 7701(a)(30) of the Code (a "Non-U.S.
Lender") shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio interest", a statement substantially in the form of Exhibit G and a
Form W-8BEN, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or
a reduced rate of, U.S. federal withholding tax on all payments by the Borrower under this Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation). In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender
shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant to
this paragraph that such Non-U.S. Lender is not legally able to deliver. 


        (e)   A
Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located,
or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender's
judgment such completion, execution or submission would not materially prejudice the legal position of such Lender. 


        (f)    If
the Administrative Agent or any Lender determines, in its sole discretion, that it has received a refund or credit in respect of any Non-Excluded Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.19, it shall as promptly as
reasonably possible pay over such refund or credit to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.19 with
respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund or credit), net of all out-of-pocket expenses of the Administrative Agent or such Lender
and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund or credit); provided, that the
Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the 



31





 




amount
paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require the Administrative Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other Person. 



        (g)   The
agreements in this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. 




        2.20    Indemnity.    The Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from, any
reasonable loss or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar Loans
after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from
Eurodollar Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of Eurodollar Loans on a day that is not the
last day of an Interest Period with respect thereto. Such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest that would have accrued on the amount
so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period (or,
in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein, if any) minus (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. A certificate as to any amounts payable pursuant to this
Section submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder. 


        2.21    Change of Lending Office.    Each Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.18 or 2.19(a) with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the object of avoiding the
consequences of such event; provided, that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.18
or 2.19(a). 


        2.22    Replacement of Lenders.    The Borrower shall be permitted to replace with a replacement financial institution
any Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.18 or 2.19(a), (b) defaults in its obligation to make Loans hereunder, or (c) fails to
consent to a requested waiver, amendment, supplement or other modification to any of the Loan Documents that, specifically or effectively, requires, to become effective, the consent of each of the
Lenders or each of the Lenders holding Term Loans or each of the Lenders holding Revolving Extensions of Credit or the consent of each Lender directly affected thereby pursuant to the proviso to the
second sentence of Section 10.1; provided that (i) such replacement does not conflict with any Requirement of Law, (ii) no Event of Default shall have occurred and be continuing
at the time of such replacement, (iii) prior to any such replacement as a result of clause (a) above, such Lender shall have taken no action under Section 2.21 so as to eliminate
the continued need for payment of amounts owing pursuant to Section 2.18 or 2.19(a), (iv) the replacement financial institution shall purchase, at par, all Loans and other amounts owing
to such replaced Lender on or prior to the date of replacement, (v) the Borrower shall be liable to such replaced Lender under Section 2.20 if any Eurodollar Loan 


32





 



owing
to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (vi) the replacement financial institution, if not already a Lender, shall
be reasonably satisfactory to the Administrative Agent and, if such replacement financial institution is replacing a Revolving Lender, the Issuing Lender, (vii) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section 10.6 (provided that the Borrower shall be obligated to pay the registration and processing fee referred to
therein), (viii) until such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 2.18 or 2.19(a), as the
case may be, and (ix) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced
Lender. In the event that a replaced Lender does not execute an Assignment and Assumption pursuant to Section 10.6 within three Business Days after receipt by such replaced Lender of notice of
replacement pursuant to this Section 2.22 and presentation to such replaced Lender of an Assignment and Assumption evidencing an assignment pursuant to this Section 2.22, the Borrower
shall be entitled (but not obligated) to execute such an Assignment and Assumption on behalf of such replaced Lender, and any such Assignment and Assumption so executed by the Borrower, the
replacement Lender and, to the extent required pursuant to Section 10.6, the Administrative Agent and the Issuing Lender, shall be effective for purposes of this Section 2.22 and
Section 10.6. Upon any such assignment, such replaced Lender shall no longer constitute a "Lender" for purposes hereof; provided, that any rights of such replaced Lender to indemnification
hereunder shall survive as to such replaced Lender. 


        2.23    Prepayment Fees.    In the event of any prepayment of the Term Loans pursuant to Section 2.10 (in
connection with the sale of all or substantially all of the Capital Stock or assets of Holdings or the Borrower), Section 2.11(b) or, in connection with a Disposition of all or substantially
all of the assets of the Borrower, Section 2.11(c), occurring prior to the second anniversary of the Closing Date, the Borrower shall pay to each Term Lender a fee in an amount equal to the
product of (a) 1.00% and (b) the principal amount of the Term Loans of such Term Lender so prepaid. 


33








  



 
 

SECTION 3. LETTERS OF CREDIT    



        3.1    L/C Commitment.    



        (a)   Subject
to the terms and conditions hereof, the Issuing Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees
to issue letters of credit ("Letters of Credit") for the account of the Borrower on any Business Day during the Revolving Commitment Period in such form as may be approved from time to time by the
Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the aggregate amount of the Available Revolving Commitments would be less than zero; and provided further that notwithstanding that any Letter of Credit may state that it is
issued on behalf of a Guarantor and notwithstanding that any Application is executed by a Guarantor, each Letter of Credit is hereby deemed to be issued for the account of Borrower. Each Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five
Business Days prior to the Revolving Termination Date, provided that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause (y) above). 


        (b)   The
Issuing Lender shall not at any time be obligated to issue any Letter of Credit if such issuance would conflict with, or cause the Issuing Lender or any L/C
Participant to exceed any limits imposed by, any applicable Requirement of Law. 




        3.2    Procedure for Issuance of Letter of Credit.    The Borrower may from time to time request that the Issuing
Lender issue a Letter of Credit by delivering (i) to the Issuing Lender at its address for notices specified herein an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the Issuing Lender may request, and (ii) to the Administrative Agent copies of all such Applications, certificates,
documents, and other papers and information. Upon receipt of any Application or copy thereof, (a) the Administrative Agent shall inform the Issuing Lender of the aggregate amount of Revolving
Loans and Swingline Loans then outstanding and (b) the Issuing Lender will process such Application and the certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than five Business Days after
its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by the Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower promptly following the
issuance thereof. The Issuing Lender shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit (including
the amount thereof). The Issuing Lender shall also promptly notify the Administrative Agent of any other event that results in a change in the outstanding amount of the L/C Obligations. 


        3.3    Fees and Other Charges.    



        (a)   The
Borrower will pay a fee on all outstanding Letters of Credit at a per annum rate equal to the Applicable Margin then in effect with respect to Eurodollar Loans under
the Revolving Facility, shared ratably among the Revolving Lenders and payable quarterly in arrears on each Fee Payment Date after the issuance date. In addition, the Borrower shall pay to the Issuing
Lender for its own account a fronting fee of 0.25% per annum on the undrawn and unexpired amount of each Letter of Credit, payable quarterly in arrears on each Fee Payment Date after the issuance
date. 



34





 

        (b)   In
addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing Lender for such normal and customary costs and expenses as are incurred or charged by
the Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit. 




        3.4    L/C Participations.    



        (a)   The
Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce the Issuing Lender to issue Letters of Credit, each L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender, on the terms and conditions set forth below, for such L/C Participant's own account and
risk an undivided interest equal to such L/C Participant's Revolving Percentage in the Issuing Lender's obligations and rights under and in respect of each Letter of Credit and all amounts paid by the
Issuing Lender thereunder. Each L/C Participant agrees with the Issuing Lender that, if a payment is made under any Letter of Credit for which the Issuing Lender is not reimbursed in full by the
Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at the Issuing Lender's address for notices specified herein an amount equal
to such L/C Participant's Revolving Percentage of the amount of such payment, or any part thereof, that is not so reimbursed. Each L/C Participant's obligation to pay such amount shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such L/C Participant may have against the Issuing
Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions
specified in Section 5, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other L/C Participant or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. 


        (b)   If
any amount required to be paid by any L/C Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment
made by the Issuing Lender under any Letter of Credit is paid to the Issuing Lender within three Business Days after the date such payment is due, such L/C Participant shall pay to the Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period from and including the date such payment is
required to the date on which such payment is immediately available to the Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is not made available to the Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, the Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to ABR Loans under the Revolving Facility. A certificate of the Issuing Lender submitted to any L/C Participant with respect to any amounts owing under
this Section shall be conclusive in the absence of manifest error. 


        (c)   Whenever,
at any time after the Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with Section 3.4(a), the Issuing Lender receives any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by the Issuing Lender), or any payment of interest on account thereof, the Issuing Lender will distribute to such L/C
Participant its pro rata share thereof; provided,  however, that in the event that any such payment received
by the Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously distributed by the Issuing Lender to it. 



35





 





        3.5    Reimbursement Obligation of the Borrower.    If any payment is made under any Letter of Credit, the Borrower
shall reimburse the Issuing Lender for the amount of (a) the payment so made and (b) any taxes, fees, charges or other costs or expenses incurred by the Issuing Lender in connection with
such payment, not later than 12:00 Noon, New York City time, on (i) the Business Day that the Borrower receives notice of such payment, if such notice is received on such day prior to 12:00
Noon, New York City time, or (ii) if clause (i) above does not apply, the Business Day immediately following the day that the Borrower receives such notice. Each such reimbursement
payment shall be made to the Issuing Lender at its address for notices referred to herein in Dollars and in immediately available funds. Interest shall be payable on any such amounts from the date on
which the relevant payment under the Letter of Credit is made until payment in full at the rate set forth in (x) until the Business Day next succeeding the date of the relevant notice,
Section 2.14(b) and (y) thereafter, Section 2.14(c). The Borrower may request that such payment be financed with an ABR Loan of an equivalent amount, and, to the extent so
financed, the Borrower's obligation to make such payment shall be discharged and be replaced by such ABR Loan. 


        3.6    Obligations Absolute.    The Borrower's obligations under this Section 3 shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing Lender that the Issuing Lender shall not be responsible for, and the Borrower's Reimbursement Obligations under
Section 3.5 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims
whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee. The Issuing Lender shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions that resulted from the gross negligence, bad
faith or willful misconduct of the Issuing Lender. The Borrower agrees that any action taken or omitted by the Issuing Lender under or in connection with any Letter of Credit, the related documents or
payment thereunder shall be binding on the Borrower and shall not result in any liability of the Issuing Lender to the Borrower except to the extent caused by the gross negligence or willful
misconduct of the Issuing Lender. 


        3.7    Letter of Credit Payments.    If any draft shall be presented for payment under any Letter of Credit, the
Issuing Lender shall promptly notify the Borrower of the date and amount thereof. The responsibility of the Issuing Lender to the Borrower in connection with any draft presented for payment under any
Letter of Credit shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit. 


        3.8    Applications.    To the extent that any provision of any Application related to any Letter of Credit is
inconsistent with the provisions of this Section 3, the provisions of this Section 3 shall apply. 


 
 

SECTION 4. REPRESENTATIONS AND WARRANTIES    



        To
induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Loans and issue or participate in the Letters of Credit, Holdings and the Borrower hereby
jointly and severally represent and warrant to the Administrative Agent and each Lender that: 


        4.1    Financial Condition.    



        (a)   The
unaudited pro forma consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at August 31, 2003 (including the notes thereto) (the "Pro
Forma Balance Sheet"), 



36





 

copies
of which have heretofore been furnished to each Lender, has been prepared giving effect (as if such events had occurred on such date) to (i) the consummation of the Acquisition,
(ii) the Loans to be made on the Closing Date and the use of proceeds thereof and (iii) the payment of fees and expenses in connection with the foregoing. The Pro Forma Balance Sheet has
been prepared based on the best information available to the Borrower as of the date of delivery thereof, and presents fairly on a pro forma basis the estimated financial position of the Borrower and
its consolidated Subsidiaries as at August 31, 2003, assuming that the events specified in the preceding sentence had actually occurred at such date. 


        (b)   The
audited consolidated balance sheets of the Borrower as at December 31, 2000, December 31, 2001 and December 31, 2002, and the related
consolidated statements of income and of cash flows for the fiscal years ended on such dates, reported on by and accompanied by an unqualified report from PricewaterhouseCoopers LLP, present fairly
the consolidated financial condition of the Borrower as at such date, and the consolidated results of its operations and its consolidated cash flows for the respective fiscal years then ended. The
unaudited consolidated balance sheet of the Borrower as at June 30, 2003, and the related unaudited consolidated statements of income and cash flows for the six-month period ended
on such date, present fairly the consolidated financial condition of the Borrower as at such date, and the consolidated results of its operations and its consolidated cash flows for the
six-month period then ended (subject to normal year-end audit adjustments and the absence of footnotes). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein). As
of the Closing Date, no Group Member has any material Guarantee Obligations, contingent liabilities and liabilities for taxes, or any long-term leases or unusual forward or
long-term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the most recent
financial statements referred to in this paragraph other than obligations in respect of surety bonds entered into in the ordinary course of business and Guarantee Obligations in respect thereof.
During the period from December 31, 2002 to and including the Closing Date there has been no Disposition by any Group Member of any material part of its business or property other than in
connection with the Acquisition. 




        4.2    No Change.    Since December 31, 2002, there has been no development or event that has had or could
reasonably be expected to have a Material Adverse Effect (taking into account that, as previously disclosed to the Lenders in the Confidential Information Memorandum, Consolidated Adjusted EBITDA for
the third and fourth quarter of 2002 was extraordinarily high and is not likely to be repeated). 


        4.3    Existence; Compliance with Law.    Each Group Member (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the power and authority, and the legal right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse Effect, (c) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its business requires such qualification, except in jurisdictions where the failure to be so qualified or in good standing could
not be reasonably expected to have a Material Adverse Effect, and (d) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect. 



        4.4    Power; Authorization; Enforceable Obligations.    Each Loan Party has the power and authority, and the legal
right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain extensions of credit hereunder. Each Loan Party has taken all necessary 


37





 



organizational
action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the extensions of credit on the
terms and conditions of this Agreement. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in
connection with the Acquisition and the extensions of credit hereunder or with the execution, delivery, performance, validity or enforceability of this Agreement or any of the Loan Documents, except
(i) consents, authorizations, filings and notices described in Schedule 4.4, which consents, authorizations, filings and notices have been obtained or made and are in full force and
effect, (ii) the filings referred to in Section 4.19 and (iii) consents, approvals, registrations, filings or actions the failure of which to be obtained or performed could not
reasonably be expected to have a Material Adverse Effect. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. This Agreement constitutes, and each other
Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law). 


        4.5    No Legal Bar.    The execution, delivery and performance of this Agreement and the other Loan Documents, the
issuance of Letters of Credit, the borrowings hereunder and the use of the proceeds thereof will not violate any Requirement of Law or any Contractual Obligation of any Group Member and will not
result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or any such Contractual Obligation (other than the
Liens created by the Security Documents). No Requirement of Law or Contractual Obligation applicable to the Borrower or any of its Subsidiaries could reasonably be expected to have a Material Adverse
Effect. As of the Closing Date, the only material orders or decrees of Governmental Authorities to which any Group Member is subject are listed on Schedule 4.5. 


        4.6    Litigation.    No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority
is pending or, to the knowledge of Holdings or the Borrower, threatened by or against any Group Member or against any of their respective properties or revenues (a) with respect to any of the
Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse Effect. 


        4.7    No Default.    No Group Member is in default under or with respect to any of its Contractual Obligations in any
respect that could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing. 



        4.8    Ownership of Property; Liens.    Each Group Member has title in fee simple to, or a valid leasehold interest in
or other valid rights to use, all its material real property, and good title to, or a valid leasehold interest in or other valid rights to use, all its other property material to its business, except
for (a) Liens permitted under Section 7.3, and (b) minor irregularities or deficiencies in title that, individually or in the aggregate, do not materially adversely affect the
value of such real property, or interfere with the ability of such Group Member to conduct its business as currently conducted or to utilize such properties for their intended purposes, and none of
such property is subject to any Lien except as permitted by Section 7.3. 



        4.9    Intellectual Property.    Each Group Member owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, nor does Holdings or the Borrower know of any valid basis for any such claim, in each case, to the extent such claim could reasonably be expected to result
in a Material Adverse Effect. The use of Intellectual Property by each Group Member does not, to its knowledge, infringe on the rights of any Person in any material respect. 


38





 



        4.10    Taxes.    Each Group Member has filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other material taxes, fees or
other charges imposed on it or any of its property by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Group Member); no material tax Lien has been filed, and, to the knowledge of Holdings and the
Borrower, no material claim is being asserted, with respect to any such tax, fee or other charge. 


        4.11    Federal Regulations.    No part of the proceeds of any Loans, and no other extensions of credit hereunder,
will be used for "buying" or "carrying" any "margin stock" within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect or for
any purpose that violates the provisions of the Regulations of the Board. If requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender
a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U. 


        4.12    Labor Matters.    Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge of Holdings or the Borrower, threatened; (b) hours worked by and payment
made to employees of each Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due
from any Group Member on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant Group Member. 


        4.13    ERISA.    Neither a Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to the date on which this representation is made or deemed made with respect
to any Plan, and each Plan has complied in all respects with the applicable provisions of ERISA and the Code. No termination of a Single Employer Plan has occurred, and no Lien in favor of the PBGC or
a Plan has arisen, during such five-year period. The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as
of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits by a material
amount. Neither the Borrower nor any Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan that has resulted in a material liability under ERISA, and, to the
Borrower's knowledge, neither the Borrower nor any Commonly Controlled Entity would become subject to any material liability under ERISA if the Borrower or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent which Reorganization or Insolvency would subject the Borrower or any Commonly Controlled Entity to any material liability under ERISA or the Code. 



        4.14    Investment Company Act; Other Regulations.    No Loan Party is an "investment company", or a company
"controlled" by a company required to be registered as an "investment company", within the meaning of the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) that limits its ability to incur Indebtedness. 


        4.15    Subsidiaries.    Except as disclosed to the Administrative Agent by the Borrower in writing from time to time
after the Closing Date, (a) Schedule 4.15 sets forth the name and jurisdiction of organization of each Subsidiary of the Borrower and, as to each such Subsidiary, the percentage of 


39





 



each
class of Capital Stock owned by any Loan Party and (b) there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options
granted to employees or directors and directors' qualifying shares) of any nature relating to any Capital Stock of the Borrower or any Subsidiary, except as created by the Loan Documents. 



        4.16    Use of Proceeds.    The proceeds of the Term Loans shall be used to finance a portion of the Acquisition and
to pay related fees and expenses. The proceeds of the Revolving Loans and the
Swingline Loans, and the Letters of Credit, shall be used for general corporate purposes, including working capital purposes and acquisitions permitted by Section 7.8. 


        4.17    Environmental Matters.    Other than exceptions to any of the following that could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect: 



        (a)   each
Group Member: (i) is, and to the knowledge of any Group Member within the period of all applicable statutes of limitation has been, in compliance with all
applicable Environmental Laws; (ii) holds all Environmental Permits (each of which is in full force and effect) required for its current operations or for it with respect to any property owned,
leased, or otherwise operated by it; (iii) is, and to the knowledge of any Group Member within the period of all applicable statutes of limitation has been, in compliance with all of its
Environmental Permits; and (iv) reasonably believes that: its Environmental Permits will be timely renewed and complied with, without significant expense; any additional Environmental Permits
that may be required of it will be timely obtained and complied with, without significant expense; and compliance with any Environmental Law that is or is expected to become applicable to it will be
timely attained and maintained, without significant expense; 


        (b)   Materials
of Environmental Concern are not present at, on, under, in, or about any real property now or formerly owned, leased or operated by any Group Member, or at any
other location (including, without limitation, any location to which Materials of Environmental Concern have been sent for re-use or recycling or for treatment, storage, or disposal) which
could reasonably be expected to (i) give rise to liability of any Group Member under any applicable Environmental Law or otherwise result in costs to any Group Member, or (ii) interfere
with any Group Member's continued operations, or (iii) impair the fair saleable value of any real property owned or leased by any Group Member in light of such property's current use; 


        (c)   There
is no judicial, administrative, or arbitral proceeding (including any notice of violation or alleged violation) under or relating to any Environmental Law to which
any Group Member is, or to the knowledge of any Group Member will be, named as a party that is pending or, to the knowledge of any Group Member, threatened; and to the knowledge of any Group Member,
there are no judicial, administrative, or arbitral proceedings under or relating to any Environmental Law pending or threatened against any Person, other than any Group Member, that could reasonably
be expected to affect any Group Member; 


        (d)   No
Group Member has received any written request for information, or been notified that it is a potentially responsible party under or relating to the federal
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") or any similar Environmental Law, or with respect
to any Materials of Environmental Concern; 


        (e)   No
Group Member has entered into or agreed to any consent decree, order, or settlement or similar agreement, or is subject to any judgment, decree, or order or other
agreement, in any judicial,
administrative, arbitral, or other forum for dispute resolution, relating to compliance with or liability under any Environmental Law; and 


        (f)    no
Group Member has assumed or retained, by contract or, to the knowledge of any Group Member, by operation of law, any liabilities of any kind, fixed or contingent,
under any Environmental Law or with respect to any Materials of Environmental Concern. 



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        4.18    Accuracy of Information, etc.    No statement or information (excluding projections and pro forma financial
information) contained in this Agreement, any other Loan Document, the Confidential Information Memorandum or any other document, certificate or statement furnished in writing by or on behalf of any
Loan Party to the Administrative Agent or the Lenders, or any of them, for use in connection with the transactions contemplated by this Agreement or the other Loan Documents, when taken as a whole,
contained as of the date such statement, information, document or certificate was so furnished (or, in the case of the Confidential Information Memorandum (as supplemented by written information
provided to the Lenders prior to the Closing Date), as of the date of this Agreement), any untrue statement of a material fact or omitted to state a material fact necessary to make the statements
contained herein or therein not materially misleading. The projections and pro forma financial information contained in the materials referenced above are based upon good faith estimates and
assumptions believed by management of the Borrower to be reasonable at the time made, it being recognized by the Lenders that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount. As of the
Closing Date, there is no fact known to any Loan Party that could reasonably be expected to have a Material Adverse Effect that has not been expressly disclosed herein, in the other Loan Documents, in
the Confidential Information Memorandum or in any other documents, certificates and statements furnished in writing to the Administrative Agent and the Lenders for use in connection with the
transactions contemplated hereby and by the other Loan Documents. 


        4.19    Security Documents.    



        (a)   The
Guarantee and Collateral Agreement is effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds thereof. In the case of the Pledged Stock described in the Guarantee and Collateral Agreement, when stock certificates
representing such Pledged Stock are delivered to the Administrative Agent, and in the case of the other Collateral described in the Guarantee and Collateral Agreement, when financing statements and
other filings and actions specified on Schedule 4.19(a) in appropriate form are filed in the offices specified on Schedule 4.19(a), the Guarantee and Collateral Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof (other than such Collateral in which a
security interest cannot be perfected under the Uniform Commercial Code or other applicable law as in effect at the relevant time in the relevant jurisdiction by the filing of financing statements and
other filings and actions described in Schedule 4.19(a)), as security for the Obligations (as defined in the
Guarantee and Collateral Agreement), in each case prior and superior in right to any other Person (except, in the case of Collateral other than Pledged Stock, Liens permitted by Section 7.3). 


        (b)   Each
of the Mortgages is effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable Lien on the
Mortgaged Properties described therein and proceeds thereof, and when the Mortgages are filed in the offices specified on Schedule 4.19(b), each such Mortgage shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the Loan Parties in the Mortgaged Properties and the proceeds thereof, as security for the Obligations (as defined in the relevant
Mortgage), in each case prior and superior in right to any other Person (other than Liens permitted under Section 7.3 that have priority by operation of law or Liens permitted under
Section 7.3(e) or 7.3(g)). Schedule 1.1B lists, as of the Closing Date, each parcel of owned real property located in the United States and held by the Borrower or any of its
Subsidiaries that has a value, in the reasonable opinion of the Borrower, in excess of $500,000. 



41





 





        4.20    Solvency.    The Loan Parties are, taken as a whole, and after giving effect to the Acquisition and the
incurrence of all Indebtedness and obligations being incurred in connection herewith and therewith will be and will continue to be, Solvent. 


        4.21    Regulation H.    No Mortgage (other than the Connecticut Mortgage) encumbers improved real property
that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards and in which flood insurance has been made available under
the National Flood Insurance Act of 1968, as amended. 


        4.22    Certain Documents.    The Borrower has delivered to the Administrative Agent a complete and correct copy of
the Acquisition Documentation, including any amendments, supplements or modifications with respect to any of the foregoing. 


 
 

SECTION 5. CONDITIONS PRECEDENT    



        5.1    Conditions to Initial Extension of Credit.    The agreement of each Lender to make the initial extension of
credit requested to be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent: 



        (a)   Credit Agreement; Guarantee and Collateral Agreement. The Administrative Agent shall have received (i) this
Agreement, executed and delivered by the Administrative Agent, Holdings, the Borrower and each Person listed on Schedule 1.1A, (ii) the Guarantee and Collateral Agreement, executed and
delivered by Holdings, the Borrower and each Subsidiary Guarantor, and (iii) an Acknowledgement and Consent in the form attached to the Guarantee and Collateral Agreement, executed and
delivered by each Issuer (as defined therein), if any, that is not a Loan Party. 


        (b)   Acquisition, etc. The following transactions shall have been consummated: 



          (i)  No
provision of the Acquisition Documentation shall have been waived, amended, supplemented or otherwise modified in any respect that is material and adverse to the
Lenders without the approval of the Administrative Agent; 


         (ii)  Holdings
shall have received at least $93,750,000 in cash from the issuance of its common stock to the Sponsors and management, and such proceeds shall have been
contributed to the Borrower in a manner reasonably satisfactory to the Administrative Agent; 



        (iii)  The
Administrative Agent shall have received satisfactory evidence that the Acquisition shall have been completed in accordance with the terms and conditions of the
Acquisition Agreement and applicable law; 


        (iv)  The
Administrative Agent shall have received satisfactory 4rdence that the fees and expenses to be incurred in connection with the Acquisition and the financing thereof
shall not exceed $10,000,000; 


         (v)  (A)
The Administrative Agent shall have received satisfactory evidence that all of the then existing Indebtedness of the Borrower (other than (i) the Existing
Capital Leases, (ii) Indebtedness owing by the Borrower to its Subsidiaries and (iii) surety bonds and Guarantee Obligations in connection therewith) shall have been paid in full and all
commitments to lend in connection therewith shall have been terminated and (B) satisfactory arrangements shall have been made for the termination of all Liens granted in connection therewith;
and 


        (vi)  The
Seller Note shall be in form and substance reasonably satisfactory to the Administrative Agent. 




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        (c)   Pro Forma Balance Sheet; Financial Statements. The Lenders shall have received (i) the Pro Forma Balance Sheet,
(ii) audited consolidated financial statements of the Borrower for the 2000, 2001 and 2002 fiscal years and (iii) unaudited interim consolidated financial statements of the Borrower for
each fiscal month and quarter ended after the date of the latest applicable financial statements delivered pursuant to clause (ii) of this paragraph as to which such financial statements are
available, and such financial statements shall not, in the reasonable judgment of the Lenders, reflect any material adverse change in the consolidated financial condition of the Borrower, as reflected
in the financial statements or projections contained in the Confidential Information Memorandum. 


        (d)   Projections. The Lenders shall have received projections of the Borrower through the 2010 fiscal year, in form and
substance reasonably satisfactory to the Administrative Agent. 


        (e)   Approvals. All governmental and third party approvals necessary or, in the discretion of the Administrative Agent,
advisable in connection with the Acquisition, the continuing operations of the Group Members and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the
Acquisition or the financing contemplated hereby. 


        (f)    Lien Searches. The Administrative Agent shall have received the results of a recent lien search in each of the
jurisdictions where assets of the Loan Parties are located, and such search shall reveal no liens on any of the assets of the Loan Parties except for liens permitted by Section 7.3 or
discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent. 


        (g)   Environmental Reports. The Administrative Agent shall have received all environmental assessment reports pertaining to
any Group Member that are in the possession or control of the Borrower and/or any of its Subsidiaries, which in form, scope, and substance are reasonably satisfactory to the Administrative Agent, and
which by their terms or pursuant to other written documentation satisfactory to the Administrative Agent, permit the Administrative Agent and each Lender to rely on such environmental assessment
reports as if addressed to and prepared for each of them. 


        (h)   Fees. The Lenders and the Administrative Agent shall have received all fees required to be paid, and all expenses for
which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date. All such amounts will be paid with proceeds of Loans made on the
Closing Date and will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or before the Closing Date. 



        (i)    Closing Certificate; Certified Certificate of Incorporation; Good Standing Certificates. The Administrative Agent shall
have received (i) a certificate of each Loan Party, dated the Closing Date, substantially in the form of Exhibit C, with appropriate insertions and attachments, attaching the certificate
of incorporation of each Loan Party that is a corporation certified by the relevant authority of the
jurisdiction of organization of such Loan Party, and (ii) unless the Administrative Agent otherwise agrees, a long form good standing certificate for each Loan Party from its jurisdiction of
organization. 


        (j)    Legal Opinions. The Administrative Agent shall have received the following executed legal opinions: 



          (i)  the
legal opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the Loan Parties, substantially in the form of Exhibit F; 




43





 


         (ii)  to
the extent consented to by the relevant counsel, each legal opinion, if any, delivered in connection with the Acquisition Agreement, addressed to the Lenders or
accompanied by a reliance letter in favor of thereof; and 


        (iii)  the
legal opinion of local counsel in each of New Jersey, Wisconsin, Michigan, Connecticut and Texas and of such other special and local counsel as may be required by
the Administrative Agent. 





        Each
such legal opinion (other than as referred to in clause (ii)) shall cover such other matters incident to the transactions contemplated by this Agreement as the Administrative
Agent may reasonably require. 



        (k)   Pledged Stock; Stock Powers; Pledged Notes. The Administrative Agent shall have received (i) the certificates
representing the shares of Capital Stock pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof, and (ii) each promissory note (other than any promissory note in a principal amount less than or equal to $100,000 issued in connection with
extensions of trade credit by any Loan Party in the ordinary course of business) pledged to the Administrative Agent pursuant to the Guarantee and Collateral Agreement endorsed (without recourse) in
blank (or accompanied by an executed transfer form in blank) by the pledgor thereof. 


        (l)    Filings, Registrations and Recordings. Each of Holdings, the Borrower and the Subsidiary Guarantors shall have delivered
to the Administrative Agent: 



          (i)  financing
statements (Form UCC-1) in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the
security interests purported to be created by the Guarantee and Collateral Agreement; 


         (ii)  evidence
of the completion of, or arrangements to complete, all other recordings and filings of, or with respect to, the Guarantee and Collateral Agreement as may be
necessary to perfect the security interests intended to be created by the Guarantee and Collateral Agreement; and 


        (iii)  evidence
that all other actions reasonably required by the Administrative Agent to perfect the security interests purported to be created by the Guarantee and
Collateral Agreement have been, or are in the process of being, taken. 




        (m)  Mortgages, etc. The Administrative Agent shall have received: 



          (i)  a
Mortgage with respect to each Mortgaged Property, executed and delivered by a duly authorized officer of each party thereto; 


         (ii)  in
respect of each Mortgaged Property, a mortgagee's title insurance policy (or policies) or marked up unconditional binder for such insurance. Each such policy shall
(A) be in an amount reasonably satisfactory to the Administrative Agent; (B) be issued at ordinary rates; (C) insure that the Mortgage insured thereby creates a valid first Lien
on such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (D) name the Administrative Agent for the benefit of the Secured Parties as the insured
thereunder; (E) be in the form of ALTA Loan Policy—1970 (Amended 10/17/70 and 10/17/84) (or equivalent policies); (F) contain such endorsements and affirmative coverage as
the Administrative Agent may reasonably request and (G) be issued by title companies reasonably satisfactory to the Administrative Agent (including any such title companies acting as
co-insurers or reinsurers, at the option of the Administrative Agent). The Administrative Agent shall have received evidence reasonably satisfactory to it that all premiums in respect of
each such policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid or will be paid concurrently with closing; 




44





 





        (iii)  if
reasonably requested by the Administrative Agent, (A) a policy of flood insurance that (1) covers any parcel of improved real property that is
encumbered by any Mortgage (2) is written in an amount not less than the outstanding principal amount of the indebtedness secured by such Mortgage that is reasonably allocable to such real
property or the maximum limit of coverage made available with respect to the particular type of property under the National Flood Insurance Act of 1968, whichever is less, and (3) has a term
ending not earlier than the maturity of the Indebtedness secured by such Mortgage and (B) confirmation that the Borrower has received the notice required pursuant to Section 208(e)(3) of
Regulation H of the Board; and 


        (iv)  a
copy of all recorded documents referred to, or listed as exceptions to title in, the title policy or policies referred to in clause (ii) above and a copy of
all other material documents affecting the Mortgaged Properties. 




        (n)   Solvency Certificate. The Administrative Agent shall have received a solvency certificate from the chief financial
officer of the Borrower documenting the solvency of the Borrower and its Subsidiaries after giving effect to the Acquisition and the transactions contemplated thereby, in form and substance reasonably
satisfactory to the Administrative Agent. 


        (o)   Insurance. The Administrative Agent shall be satisfied with the insurance program maintained by the Borrower and its
Subsidiaries after the Transaction and shall have received insurance certificates satisfying the requirements of Section 5.2(b) of the Guarantee and Collateral Agreement. 


        (p)   Credit Ratings. The Borrower shall have obtained minimum senior secured debt ratings for the Facilities of no lower than
"B+" from S&P or "B1" from Moody's. 




        5.2    Conditions to Each Extension of Credit.    The agreement of each Lender to make any extension of credit
requested to be made by it on any date (including its initial extension of credit) is subject to the satisfaction of the following conditions precedent: 



        (a)   Representations and Warranties. Each of the representations and warranties made by any Loan Party in or pursuant to the
Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date (it being understood and agreed that any representation or warranty that by
its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date). 



        (b)   No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to
the extensions of credit requested to be made on such date. 




Each
borrowing by and issuance of a Letter of Credit on behalf of the Borrower hereunder shall constitute a representation and warranty by the Borrower as of the date of such extension of credit that
the conditions contained in this Section 5.2 have been satisfied. 


 
 

SECTION 6. AFFIRMATIVE COVENANTS    




        Holdings
and the Borrower hereby jointly and severally agree that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding (unless cash collateralized in a
manner reasonably satisfactory to the Administrative Agent and the Issuing Lender) or any Loan or other amount is owing to any Lender or the Administrative Agent hereunder, each of Holdings and the
Borrower shall and shall cause each of its Subsidiaries to: 


        6.1    Financial Statements.    Furnish to the Administrative Agent for itself and for reasonably prompt distribution
by the Administrative Agent to each Lender: 


45





 



        (a)   as
soon as available, but in any event within 105 days after the end of each fiscal year of Holdings, a copy of the audited consolidated balance sheet of Holdings
and its consolidated Subsidiaries as at the end of such year and the related audited consolidated statements of income and of cash flows for such year (together with such balance sheet and such
statements on an unaudited consolidating basis treating the Borrower and its Subsidiaries as a single Subsidiary of Holdings), setting forth in each case in comparative form the figures for the
previous year, reported on without a qualification arising out of the scope of the audit, by PricewaterhouseCoopers LLP or other independent certified public accountants of nationally recognized
standing; 


        (b)   as
soon as available, but in any event not later than 45 days after the end of each of the first three quarterly periods of each fiscal year of Holdings, the
unaudited consolidated balance sheet of Holdings and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of income and of cash flows for such
quarter and the portion of the fiscal year through the end of such quarter (together with such balance sheet and such statements on a consolidating basis treating the Borrower and its Subsidiaries as
a single Subsidiary of Holdings), setting forth in each case in comparative form the figures for the previous year, certified by a Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments and the absence of footnotes and prepared in a format similar to that used for the financial statements referred to in paragraph (a)
above); and 


        (c)   as
soon as available, but in any event not later than 45 days after the end of each month occurring during each fiscal year of Holdings (other than the third,
sixth, ninth and twelfth such month), the unaudited consolidated balance sheets of Holdings and its Subsidiaries as at the end of such month and the related unaudited consolidated statements of income
and of cash flows for such month and the portion of the fiscal year through the end of such month (together with such balance sheet and such statements on a consolidating basis treating the Borrower
and its Subsidiaries as a single Subsidiary of Holdings), setting forth in each case in comparative form the figures for the previous year, certified by
a Responsible Officer as being fairly stated in all material respects (subject to normal year-end and quarter-end audit adjustments and the absence of footnotes and prepared in
the format used for such monthly financial statements delivered to the holders of Capital Stock of Holdings). 




All
such financial statements delivered pursuant to paragraphs (a) and (b) above shall be complete and correct in all material respects and shall be prepared in reasonable detail and in
accordance with GAAP applied (except as approved by such accountants or officer, as the case may be, and disclosed in reasonable detail therein and, in the case of financial statements delivered
pursuant to clauses (b) and (c) above, subject to normal year-end and, if applicable, quarter-end audit adjustments and the absence of footnotes) consistently
throughout the periods reflected therein and with prior periods. 


        6.2    Certificates; Other Information.    Furnish to the Administrative Agent for itself and for reasonably prompt
distribution by the Administrative Agent to each Lender (or, in the case of clause (g), to the relevant Lender): 



        (a)   concurrently
with the delivery of the financial statements referred to in Section 6.1(a), a certificate of the independent certified public accountants reporting
on such financial statements stating that in making the examination necessary therefore no knowledge was obtained of any Default or Event of Default, except as specified in such certificate; 


        (b)   concurrently
with the delivery of any financial statements pursuant to Section 6.1, (i) a certificate of a Responsible Officer stating that, to the best of
each such Responsible Officer's knowledge, each Loan Party during such period has observed or performed all of its covenants under Sections 2.11, 6 and 7, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in such certificate and (ii) in the case of quarterly 



46





 




or
annual financial statements, (x) a Compliance Certificate containing all information and calculations necessary for determining compliance by each Group Member with the provisions of this
Agreement applicable to it referred to therein as of the last day of the fiscal quarter or fiscal year of the Borrower, as the case may be, and (y) to the extent not previously disclosed to the
Administrative Agent, a description of any change in the jurisdiction of organization of any Loan Party and a list of any Intellectual Property material to the business of any Loan Party acquired by
any Loan Party since the date of the most recent report delivered pursuant to this clause (y) (or, in the case of the first such report so delivered, since the Closing Date); 


        (c)   as
soon as available, and in any event no later than 60 days after the end of each fiscal year of the Borrower, a reasonably detailed consolidated budget for the
following fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year, the related consolidated statements of
projected cash flow, projected changes in financial position
and projected income and a description of the underlying assumptions applicable thereto), and, as soon as available, significant revisions, if any (as a result of, among other things, a material
acquisition or disposition), of such budget and projections with respect to such fiscal year (collectively, the "Projections"), which Projections shall
in each case be accompanied by a certificate of a Responsible Officer stating that such Projections are based on reasonable estimates, information and assumptions and that such Responsible Officer has
no reason to believe that such Projections are incorrect or misleading in any material respect (it being understood that actual results may vary from any such Projections by a material amount and such
Projections are subject to significant contingencies and assumptions, many of which are beyond the control of the Borrower, and that no assurances are offered that the Projections will be realized); 


        (d)   within
45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower and within 105 days after the end of the fourth
fiscal quarter of each fiscal year of the Borrower, a narrative discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the fiscal year in which such fiscal quarter is included to the end of such fiscal quarter, as compared to the portion of the Projections covering such
periods and to the comparable periods of the previous year; 


        (e)   no
later than five Business Days prior to the effectiveness thereof, copies of substantially final drafts of any proposed amendment, supplement, waiver or other
modification with respect to the Seller Note or the Acquisition Documentation; 


        (f)    within
five days after the same are sent, copies of all financial statements and reports that Holdings or the Borrower sends to the holders of any class of its debt
securities or public equity securities and, within five days after the same are filed, copies of all financial statements and reports that Holdings or the Borrower may make to, or file with, the SEC;
and 


        (g)   promptly,
such additional financial and other information as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably
request. 




Reports
and documents required to be delivered pursuant to Sections 6.1 and 6.2 may be delivered electronically and if so, shall be deemed to have been delivered on the date on which (a) such
reports are posted electronically on IntraLinks/IntraAgency or other relevant website to which the Administrative Agent and the Lenders have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent), if any, and (b) the Borrower shall have notified (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the
posting of any such reports and provided to the Administrative Agent and each Lender by email electronic versions (i.e. soft copies) of such reports and documents. 


47







   
        6.3    Payment of Obligations.    Pay, discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its material obligations of whatever nature, except where (i) the amount or validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the relevant Group Member or (ii) such failure to pay, discharge or satisfy could not
reasonably be expected to have a Material Adverse Effect. 


        6.4    Maintenance of Existence; Compliance.    



        (a)   (i) Preserve,
renew and keep in full force and effect its organizational existence and (ii) take all reasonable action to maintain all rights, privileges
and franchises necessary or desirable in the normal conduct of its business, except, in each case, as otherwise permitted by Section 7.4 and except, in the case of clause (ii) above, to
the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and 


        (b)   comply
with all Contractual Obligations and applicable Requirements of Law except to the extent that failure to comply therewith could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect. 




        6.5    Maintenance of Property; Insurance.    



        (a)   Keep
all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted and 


        (b)   maintain
with financially sound and reputable insurance companies insurance on all its property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business. 




        6.6    Inspection of Property; Books and Records; Discussions.    



        (a)   Maintain
proper books of record and account, in which entries correct and accurate in all material respects and sufficient to prepare financial statements in conformity
with GAAP are made and 


        (b)   permit
representatives of the Administrative Agent or any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and
records at any reasonable time during normal business hours and to discuss the business, operations, properties and financial condition of the Group Members with officers of the Group Members and with
their independent certified public accountants. Notwithstanding anything to the contrary in this Section 6.6, none of Holdings, the Borrower or any of their Subsidiaries will be required to
disclose, permit the inspection, examination or making of extracts, or discussion of, any document, information or other matter that (i) in respect of which disclosure to the Administrative
Agent (or its designated representative) is then prohibited by law or any agreement binding on Holdings, the Borrower or any of their Subsidiaries or (ii) is subject to attorney-client or
similar privilege or constitutes attorney work product. 




        6.7    Notices.    Promptly give notice to the Administrative Agent and each Lender of: 



        (a)   any
Responsible Officer of Holdings or the Borrower obtaining knowledge of the occurrence of any Default or Event of Default; 


        (b)   any
Responsible Officer of Holdings or the Borrower obtaining knowledge of any (i) default or event of default under any Contractual Obligation of any Group
Member or (ii) litigation, investigation or proceeding that may exist at any time between any Group Member and any Governmental Authority, that in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a Material Adverse Effect; 



48





 




        (c)   any
litigation or proceeding affecting any Group Member (i) in which the amount involved is $5,000,000 or more and not covered by insurance, (ii) in which
injunctive or similar relief is sought or (iii) which relates to any Loan Document; 


        (d)   the
following events, as soon as possible and in any event within 30 days after any Responsible Officer of Holdings or the Borrower knows or has reason to know
thereof: (i) the occurrence of any Reportable Event with respect to any Plan, a failure to make any required contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan or
any withdrawal from, or the termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action by the PBGC or the
Borrower or any Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the termination, Reorganization or Insolvency of, any Plan; 


        (e)   the
following events, as soon as possible and in any event within 30 days after any Group Member knows or has reason to know thereof: (i) any written
notice that any Governmental Authority may deny any application for a material Environmental Permit sought by, or revoke or refuse to renew any material Environmental Permit held by any Group Member;
and (ii) any Governmental Authority has identified any Group Member as a potentially responsible party under CERCLA or any similar Environmental Law for the cleanup of Materials of
Environmental Concern at any location, whether or not owned, leased or operated by any Group Member; and 


        (f)    any
development or event that has had or could reasonably be expected to have a Material Adverse Effect. 




Each
notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the
relevant Group Member proposes to take with respect thereto. 


        6.8    Environmental Laws.    Other than exceptions to any of the following that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect: 



        (a)   comply
in all material respects with, and use reasonable efforts to ensure compliance in all material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply in all material respects with and maintain, and use reasonable efforts to ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all Environmental Permits required of them by any applicable Environmental Laws; 


        (b)   conduct
and complete in all material respects all investigations, studies, sampling and testing, and all remedial, removal and other actions required to be undertaken by
any Group Member under Environmental Laws and promptly comply with all orders and directives applicable to any Group Member of all Governmental Authorities regarding Environmental Laws; 



        (c)   generate,
use, treat, store, release, dispose of, and otherwise manage Materials of Environmental Concern in a manner that would not reasonably be expected to result in
a material liability to any Group Member or to materially affect any real property owned or leased by any of them; and take reasonable efforts to prevent any other Person from generating, using,
treating, storing, releasing, disposing of, or otherwise managing Materials of Environmental Concern in a manner that could reasonably be expected to result in a material liability to, or materially
affect any real property owned or operated by, any Group Member; and 


        (d)   maintain
and update as appropriate, and implement in all material respects an ongoing program reasonably designed to ensure that all the properties and operations of the
Group Members are regularly and reasonably reviewed by competent professionals to identify and promote compliance with and to reasonably and prudently manage any liabilities or potential 



49





 




liabilities
under any Environmental Law that may affect any Group Member, including, without limitation, compliance and liabilities relating to: discharges to air and water; acquisition,
transportation, storage and use of hazardous materials; waste disposal; repair, maintenance and improvement of properties; employee health and safety; species protection; and recordkeeping. 




        6.9    Interest Rate Protection.    In the case of the Borrower, within 90 days after the Closing Date, enter
into, and thereafter maintain, Swap Agreements to the extent necessary to provide that at least 50% of the aggregate principal amount of the Term Loans is subject to either a fixed interest rate or
interest rate protection for a period of not less than three years after the Closing Date, which Swap Agreements shall have terms and conditions reasonably satisfactory to the Administrative Agent. 


        6.10    Additional Collateral, etc.    



        (a)   With
respect to any property acquired after the Closing Date by any Group Member (other than (w) any property described in paragraph (b), (c) or
(d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) property acquired by any Foreign Subsidiary and (z) in any case where the
Administrative Agent determines in its reasonable discretion that the costs of obtaining a security interest are excessive in relation to the collateral value to be afforded thereby) as to which the
Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement or such other documents as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest
in such property and (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority (except, in the case of
Collateral other than Pledged Stock, Liens permitted by Section 7.3) security interest in such property, including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent. 


        (b)   With
respect to any fee interest in any real property having a value (together with improvements thereof) of at least $500,000 acquired after the Closing Date by any
Group Member (other than (x) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (z) real property acquired by any Foreign Subsidiary), promptly
(i) execute and deliver a first priority Mortgage, in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such real property, (ii) if requested by the
Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or
such other amount as shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor's certificate and (y) any consents or
estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such
Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. 


        (c)   With
respect to any new Subsidiary (other than (x) a Foreign Subsidiary and (y) any case where the Administrative Agent determines in its reasonable
discretion that the costs of obtaining a security interest are excessive in relation to the collateral value of the security interest) created or acquired after the Closing Date by any Group Member
(which, for the purposes of this paragraph (c), shall include any existing Subsidiary that ceases to be a Foreign Subsidiary), promptly (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a
perfected first priority security 



50





 




interest
in the Capital Stock of such new Subsidiary that is owned by any Group Member, (ii) deliver to the Administrative Agent the certificates (if any) representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Group Member, (iii) cause such new Subsidiary (A) to become a party to
the Guarantee and Collateral Agreement, (B) to take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected first priority
(except, in the case of Collateral other than Pledged Stock, Liens permitted by Section 7.3) security interest in the Collateral described in the Guarantee and Collateral Agreement with respect
to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions
and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form
and substance, and from counsel, reasonably satisfactory to the Administrative Agent. 


        (d)   With
respect to any new Foreign Subsidiary created or acquired after the Closing Date by any Group Member (other than (x) by any Group Member that is a Foreign
Subsidiary and (y) in any case where the Administrative Agent determines in its reasonable discretion that the costs of obtaining a security interest are excessive in relation to the collateral
value of the security interest), promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is
owned by any such Group Member (provided that in no event shall more than 66% of the total outstanding voting Capital Stock of any such new Subsidiary be required to be so pledged),
(ii) deliver to the Administrative Agent the certificates (if any) representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized
officer of the relevant Group Member, and take such other action as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the Administrative Agent's security interest
therein, and (iii) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. 




        6.11    Surveys.    Within sixty (60) days after the Closing Date, deliver to the Administrative Agent and the
title insurance company issuing the policy referred to in Section 5.1(m)(ii) (the "Title Insurance Company") maps or plats of an as-built survey of the sites of the Mortgaged
Properties certified to the Administrative Agent and the Title Insurance Company in a manner reasonably satisfactory to them, dated a date reasonably satisfactory to the Administrative Agent and the
Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to the Administrative Agent and the Title Insurance Company, which maps or plats and the surveys
on which they are based shall be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the
American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following:
(A) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width
thereof; (C) all access and other plottable easements appurtenant to the sites; (D) all roadways, paths, driveways, plottable easements, encroachments and overhanging projections and
similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property
by the building structures and improvements on the 


51





 

sites;
(F) if the site is described as being on a filed map, a legend relating the survey to said map; and (G) the flood zone designations, if any, in which the Mortgaged Properties are
located. 


        6.12    Vehicles.    Use its best efforts to cause, as soon as possible, the Administrative Agent's first priority
security interest in all Vehicles listed on Schedule 8 of the Guarantee and Collateral Agreement with a book value in excess of $10,000 to be noted in the certificates of title of such Vehicles
in the jurisdictions in which filing is so required and, in any event (a) within ninety (90) days after the Closing Date, submit applications to note the Administrative Agent's first
priority security interest on the certificates of title with respect to all Vehicles listed on such Schedule 8 with a book value in excess of $10,000 in the appropriate jurisdictions and
(b) within one-hundred-eighty (180) days after the Closing Date, deliver to the Administrative Agent evidence, in form and substance reasonably satisfactory to the
Administrative Agent, that the Administrative Agent's first priority security interest has been noted on the certificates of title with respect to Vehicles the aggregate book value of which is greater
than or equal to 80% of the aggregate book value of all Vehicles listed on such Schedule 8 with book values in excess of $10,000. 


        6.13    Flood Insurance.    Within forty-five (45) days after the Closing Date, deliver to the
Administrative Agent evidence, in form and substance reasonably satisfactory to the Administrative Agent, that the real property subject to the Connecticut Mortgage is covered by flood insurance
satisfying the requirements of the National Flood Insurance Act of 1968, as amended. 


SECTION 7. NEGATIVE COVENANTS 


        Holdings
and the Borrower hereby jointly and severally agree that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding (unless cash collateralized in a
manner reasonably satisfactory to the Administrative Agent and the Issuing Lender) or any Loan or other amount is owing to any Lender or the Administrative Agent hereunder, each of Holdings and the
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly: 


        7.1    Financial Condition Covenants.    



        (a)    Consolidated Leverage Ratio.    Permit the Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal quarter set forth below to exceed the ratio set forth below opposite such fiscal quarter: 



	
Fiscal Quarter Ended
	
 	

Consolidated

Leverage Ratio

	December 31, 2003 through

September 30, 2004	 	3.25 to 1.00
	December 31, 2004 through

September 30, 2005	 	2.75 to 1.00
	December 31, 2005 through

September 30, 2006	 	2.25 to 1.00
	December 31, 2006 through

September 30, 2007	 	2.00 to 1.00
	December 31, 2007 through

September 30, 2010	 	1.75 to 1.00





        (b)    Consolidated Interest Coverage Ratio.    Permit the Consolidated Interest Coverage
Ratio for any period of four consecutive fiscal quarters of the Borrower (beginning with the four fiscal quarters ended December 31, 2003) to be less than 4.00 to 1.00. 


        (c)    Consolidated Fixed Charge Coverage Ratio.    Permit the Consolidated Fixed Charge Coverage Ratio for any period
of four consecutive fiscal quarters of the Borrower (beginning with the four fiscal quarters ended December 31, 2003) to be less than 1.50 to 1.00. 



52





 




        (d)    Consolidated Adjusted EBITDA.    Permit Consolidated Adjusted EBITDA for any period of four consecutive fiscal
quarters of the Borrower ending with any fiscal quarter set forth below to be less than the amount set forth below opposite such fiscal quarter: 



	
Fiscal Quarter Ended
	
 	

Consolidated

Adjusted EBITDA

	December 31, 2003 through

September 30, 2004	 	$45,000,000
	December 31, 2004 through

September 30, 2005	 	$50,000,000
	December 31, 2005 through

September 30, 2010	 	$55,000,000





        7.2    Indebtedness.    Create, issue, incur, assume, become liable in respect of or suffer to
exist any Indebtedness, except: 



        (a)   Indebtedness
of any Loan Party pursuant to any Loan Document; 


        (b)   (i) Indebtedness
of the Borrower to any Subsidiary, (ii) Indebtedness of any Subsidiary Guarantor to the Borrower or any other Subsidiary,
(iii) Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary and (iv) Indebtedness in an aggregate principal amount not to exceed $2,000,000 of all Foreign Subsidiaries
to the Borrower or any of its Domestic Subsidiaries; 


        (c)   Guarantee
Obligations incurred in the ordinary course of business by Holdings, the Borrower or any of its Subsidiaries of obligations of any Subsidiary Guarantor; 


        (d)   Indebtedness
outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (without increasing
(except to the extent of fees and interest on such Indebtedness, refinancings, refundings, renewals or extensions), or shortening the maturity of, the principal amount thereof); 



        (e)   Indebtedness
(including Capital Lease Obligations and any refinancings, refundings, renewals or extensions thereof) secured by Liens permitted by Section 7.3(g)
in an aggregate principal amount not to exceed $20,000,000 at any one time outstanding; 


        (f)    Indebtedness
in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the
ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness (including Guarantee Obligations relating thereto); 



        (g)   Indebtedness
of Holdings in respect of the Seller Note with an initial principal amount not to exceed $30,000,000; 


        (h)   Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary
course of business, provided that such Indebtedness is extinguished within five Business Days after its incurrence; 


        (i)    Indebtedness
of the Borrower or any of its Subsidiaries consisting of the financing of insurance premiums in the ordinary course of business; and 



        (j)    other
Indebtedness of Holdings and its Subsidiaries in an aggregate principal amount not to exceed at any time $20,000,000. 




In
the event that any item of Indebtedness meets more than one of the categories set forth above in this Section, the Borrower may classify such item of Indebtedness and only be required to include
the amount and type of such Indebtedness in one or more of such clauses, at its election. 


53





 

        7.3    Liens.    Create, incur, assume or suffer to exist any Lien upon any of its property, whether now owned or
hereafter acquired, except: 



        (a)   Liens
for taxes and other governmental charges not yet due or that are being contested in good faith by appropriate proceedings,  provided that adequate reserves with respect thereto are maintained on the
books of the Borrower or its Subsidiaries, as the case may be, in conformity
with GAAP; 


        (b)   carriers',
warehousemen's, landlords', mechanics', materialmen's, repairmen's or other like Liens arising in the ordinary course of business that are not overdue for a
period of more than 30 days or that are being contested in good faith by appropriate proceedings; 


        (c)   pledges
or deposits in connection with workers' compensation, unemployment insurance and other social security legislation; 


        (d)   deposits
to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business; 


        (e)   easements,
rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not
substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries; 


        (f)    Liens
in existence on the date hereof listed on Schedule 7.3(f) and renewals, refinancings and extensions thereof, securing Indebtedness permitted by
Section 7.2(d), provided that no such Lien is spread to cover any additional property after the Closing Date and that the amount of Indebtedness
secured thereby is not increased except as permitted under Section 7.2(d); 


        (g)   Liens
securing Indebtedness of the Borrower or any other Subsidiary incurred pursuant to Section 7.2(e) to finance the acquisition of fixed or capital assets or
to refinance Indebtedness incurred for such purpose, provided that (i) such Liens shall be created within 180 days after the acquisition
of such fixed or capital assets or at the time of such refinancing, as the case may be, (ii) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness (or securing such Indebtedness being refinanced) and proceeds and replacements thereof and (iii) the principal amount of Indebtedness secured thereby is not increased; 


        (h)   Liens
created pursuant to the Security Documents; 


        (i)    any
interest or title of a lessor, licensor or sublessor under any lease, license or sublease entered into by the Borrower or any other Subsidiary in the ordinary course
of its business and covering only the assets so leased, licensed or subleased; 


        (j)    Liens
arising from judgments, decrees, awards or attachments in circumstances not constituting an Event of Default; 



        (k)   Liens
arising out of any conditional sale, title retention, consignment or other similar arrangements for the sale of goods by the Borrower or any of its Subsidiaries in
the ordinary course of business to the extent such Liens do not attach to any assets other than the goods subject to such arrangements; 


        (l)    Liens
on insurance policies and the proceeds thereof pursuant to insurance premium financing arrangements; 


        (m)  Liens
(i) incurred in the ordinary course of business in connection with the purchase or shipping of goods or assets (or the related assets and proceeds thereof),
which Liens are in favor of the seller or shipper of such goods or assets and only attached to such goods or assets, and 



54





 




(ii) 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; 


        (n)   Liens
in favor of collecting banks having a right of setoff, revocation, refund or chargeback with respect to money or instruments of the Borrower or any of its
Subsidiaries on deposits with or in possession of such banks, other than relating to Indebtedness; 


        (o)   Liens
on the assets of Foreign Subsidiaries in connection with financing arrangements for their benefit that are not otherwise prohibited under this Agreement; 


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


        (q)   those
matters set forth as exceptions to title in the title policy for each Mortgaged Property; 


        (r)   Liens
on cash reserves securing Indebtedness in respect of letters of credit or surety bonds permitted by Section 7.2(f); 


        (s)   Liens
on contracts entered into with its customers by Holdings or any of its Subsidiaries, and on all assets related thereto and to the projects that are the subject
thereof, to secure the obligations of Holdings or such Subsidiary in respect of surety bonds issued on its behalf (the issuer thereof, the "Surety") to
assure performance of such contracts (each such contract, a "Bonded Contracts"); provided that
(i) all such Liens (other than those on accounts receivable due and to become due with respect to all Bonded Contracts, contract rights related to such accounts receivable and materials
purchased for incorporation in any project that is the subject of a Bonded Contract) shall be subject, subordinate and junior to the Liens on the assets that are subject thereto created by the
Security Documents and (ii) prior to the creation of any such Liens each Person (directly or through its agent) which is to be secured thereby shall have entered into with the Administrative
Agent, on behalf of the Lenders, an
intercreditor agreement which is in form and substance satisfactory to the Administrative Agent; and 



        (t)    Liens
not otherwise permitted by this Section so long as the aggregate outstanding principal amount of the obligations secured thereby do not exceed $5,000,000 at any
one time. 




        7.4    Fundamental Changes.    Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its property or business, except that: 



        (a)   any
Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall
be the continuing or surviving corporation) or with or into any Wholly Owned Subsidiary Guarantor (provided that the Wholly Owned Subsidiary Guarantor
shall be the continuing or surviving corporation); 


        (b)   any
Subsidiary of the Borrower may Dispose of any or all of its assets (i) to the Borrower or any Wholly Owned Subsidiary Guarantor (upon voluntary liquidation or
otherwise) or (ii) pursuant to a Disposition permitted by Section 7.5; 



        (c)   any
Foreign Subsidiary may (i) be merged or consolidated with or into any other Foreign Subsidiary or (ii) Dispose of any or all of its assets to any other
Foreign Subsidiary; 


        (d)   any
Immaterial Subsidiary may liquidate, wind up or dissolve; and 


        (e)   any
Investment expressly permitted by Section 7.8 may be structured as a merger, consolidation or amalgamation. 



55





 





        7.5    Disposition of Property.    Dispose of any of its property, whether now owned or hereafter acquired, or, in the
case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except: 



        (a)   the
Disposition of obsolete or worn out property in the ordinary course of business; 


        (b)   the
sale of inventory in the ordinary course of business; 


        (c)   Dispositions
permitted by Section 7.4(a), clause (i) of Section 7.4(b) or Section 7.4(c); 


        (d)   the
sale or issuance of any Subsidiary's Capital Stock to the Borrower or any Wholly Owned Subsidiary Guarantor; 


        (e)   the
Disposition of cash or Cash Equivalents in the ordinary course of business; 



        (f)    the
license, as either licensor or licensee, of patents, trademarks, copyrights and know-how to or from third Persons or any Group Member in the ordinary
course of business; 


        (g)   the
Disposition of property identified on Schedule 7.5(g) on or prior to the first anniversary of the Closing Date; 


        (h)   the
Borrower may, subject to and in compliance with Section 6.10, Dispose of assets (other than all or substantially all of its assets) to any Wholly Owned
Subsidiary Guarantor; and 


        (i)    the
Disposition of other property having a fair market value not to exceed $10,000,000 in the aggregate for any fiscal year of the Borrower. 




        7.6    Restricted Payments.    Declare or pay any dividend (other than dividends payable solely in common stock or
common equity of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement
or other acquisition of, any Capital Stock of any Group Member, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of any Group Member (collectively, "Restricted Payments"), except that: 



        (a)   any
Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor; 


        (b)   so
long as no Default or Event of Default shall have occurred and be continuing, the Borrower may pay dividends to Holdings to permit Holdings to purchase Holdings'
common stock or common stock options from present or former officers or employees of any of Holdings or its Subsidiaries upon the death, disability or termination of employment of such officer or
employee or pursuant to the terms of any stock option plan or like agreement, provided, that the aggregate amount of payments under this paragraph (net
of any Net Cash Proceeds received by Holdings and contributed to the Borrower after the date hereof in connection with resales of any common stock or common stock options so purchased) shall not
exceed $500,000 in any fiscal year; and 


        (c)   the
Borrower may pay dividends to Holdings to permit Holdings to (i) pay corporate overhead expenses incurred by Holdings in the ordinary course of its business
not to exceed $250,000 in any fiscal year, (ii) pay any taxes that are due and payable by Holdings in respect of the operations of the Borrower or any Subsidiary as part of a consolidated,
combined or similar group that includes Holdings, the Borrower or any Subsidiary, (iii) pay amounts owed to officers and directors of Holdings with respect to directors' fees, indemnities,
compensation or reimbursement of expenses and (iv) pay amounts owed to officers of the Borrower and its Subsidiaries in connection with employment contracts such officers enter into with
Holdings. 




        7.7    Capital Expenditures.    Make or commit to make any Capital Expenditure, except Capital Expenditures of the
Borrower and its Subsidiaries in the ordinary course of business not exceeding, for 


56





 

any
fiscal year of the Borrower set forth in the table below, the amount set forth in such table for such fiscal year; provided, that (a) up to 50% of any such amount referred to above, if not
so expended in the fiscal year for which it is permitted, may be carried over for expenditure in the next succeeding fiscal year, (b) Capital Expenditures made pursuant to this Section during
any fiscal year shall be deemed made, first, in respect of amounts permitted for such fiscal year as provided above and, second, in respect of amounts carried over from the prior fiscal year pursuant
to clause (a) above and (c) notwithstanding the foregoing, the Telecommunications Subsidiaries may not make Capital Expenditures in an aggregate amount greater than $9,000,000 during any
fiscal year; provided, further, that no Capital Expenditures may be made pursuant to clause (c) above unless in a manner reasonably consistent with past practice. 



	
Fiscal Year
	
 	

Capital Expenditures

	2003	 	$19,800,000
	2004	 	$21,100,000
	2005	 	$22,900,000
	2006	 	$24,800,000
	2007	 	$26,500,000
	2008	 	$27,400,000
	2009	 	$28,300,000
	2010	 	$29,300,000





        7.8    Investments.    Make any advance, loan, extension of credit (by way of guaranty or
otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting a business unit of, or make any other investment
in, any Person (all of the foregoing, "Investments"), except: 



        (a)   extensions
of trade credit or the holding of receivables in the ordinary course of business; 



        (b)   investments
in Cash Equivalents; 


        (c)   Indebtedness
and Guarantee Obligations permitted by Section 7.2; 


        (d)   loans
and advances to employees of any Group Member in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate
amount for all Group Members not to exceed $500,000 at any one time outstanding; 


        (e)   the
Acquisition and Permitted Acquisitions (including any Investments owned by a Person acquired in the Acquisition or a Permitted Acquisition); 




Investments
in assets useful in the business of the Borrower and its Subsidiaries made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount (including
through the acquisition of Capital Stock of a Person that directly or indirectly holds such assets); 



        (f)    (i) intercompany
Investments by any Group Member in the Borrower or any Person that, prior to such investment, is a Wholly Owned Subsidiary Guarantor,
(ii) Investments by any Foreign Subsidiary in any Person that, prior to such Investment, is a Foreign Subsidiary and (iii) Investments by any Group Member (other than a Foreign
Subsidiary) in a Person that, prior to such Investment, is a Foreign Subsidiary or a Subsidiary that is not a Wholly Owned Subsidiary Guarantor in an aggregate amount outstanding at any time not to
exceed $2,000,000 (after giving effect to any portion of any such Investment returned to the investor in cash, whether as a repayment of principal or a return of invested capital, as the case may be,
but without giving effect to any earnings on such Investment, whether in the form of interest, dividends or otherwise); 


        (g)   the
Borrower and its Subsidiaries may own the Capital Stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement; 



57





 




        (h)   Investments
(including Indebtedness and Capital Stock) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business; 


        (i)    without
duplication, Investments that constitute Capital Expenditures permitted pursuant to Section 7.7; 


        (j)    Investments
funded through substantially concurrent capital contributions to Holdings or substantially concurrent sales or issuances of Capital Stock of Holdings;  provided, that the proceeds (if any) of such
capital contributions, sales or issuances are contributed by Holdings, directly or indirectly through any
Subsidiary, to the Borrower or a Subsidiary of the Borrower, as the case may be, making such Investment or used to fund the acquisition of Investments which are so contributed to the Borrower or a
Subsidiary of the Borrower; 


        (k)   guarantees
by the Borrower of employment contracts entered into between Holdings and officers of Holdings and its Subsidiaries; and 


        (l)    in
addition to Investments otherwise expressly permitted by this Section, Investments by the Borrower or any of its Subsidiaries in an aggregate amount (valued at cost
but giving effect to any portion of such Investments returned to the investor in cash as a repayment of principal or a return of invested capital but without giving effect to any earnings on such
Investment, whether in the form of interest, dividends or otherwise) not to exceed in any fiscal year of the Borrower the greater of (i) $5,000,000 and (ii) the aggregate amount of Free
Excess Cash Flow available during such fiscal year. 




        7.9    Optional Payments and Modifications of Certain Debt Instruments.    (a) Make or offer to make any
optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease or segregate funds with respect to the Seller Note (other than with funds provided
from substantially concurrent capital contributions to Holdings or substantially concurrent sales of Capital Stock of Holdings or in exchange for the Capital Stock of Holdings; or (b) amend,
modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of the Seller Note (other than any such amendment, modification,
waiver or other change that (i) would extend the maturity or reduce the amount of any payment of principal thereof or reduce the rate or extend any date for payment of interest thereon or
otherwise would not be adverse to the Lenders and (ii) does not involve the payment of a consent fee). 


        7.10    Transactions with Affiliates.    Enter into any transaction, including any purchase, sale, lease or exchange
of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than Holdings, the Borrower or any Subsidiary Guarantor) unless such
transaction is (a) not prohibited under this Agreement and (b) upon fair and reasonable terms no less favorable to the relevant Group Member than it would obtain in a comparable arm's
length transaction with a Person that is not an Affiliate; provided that the foregoing restrictions shall not, so long as no Event of Default has occurred, apply to: (i) customary fees to, and
indemnifications of, non-officer directors of Holdings and its Subsidiaries, (ii) compensation and indemnification arrangements and benefit plans for officers and employees of
Holdings or any of its Subsidiaries in the ordinary course of business and (iii) transactions to the extent permitted under Section 7.6. 


        7.11    Sales and Leasebacks.    Enter into any arrangement with any Person providing for the leasing by any Group
Member of real or personal property that has been or is to be sold or transferred by such Group Member to such Person or to any other Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of such Group Member. 


        7.12    Swap Agreements.    Enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than 


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those
in respect of Capital Stock or the Seller Note) and (b) Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary. 


        7.13    Changes in Fiscal Periods.    Permit the fiscal year of the Borrower to end on a day other than
December 31 or change the Borrower's method of determining fiscal quarters. 



        7.14    Negative Pledge Clauses.    Enter into or suffer to exist or become effective any agreement that prohibits or
limits the ability of any Group Member to create, incur, assume or suffer to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, to secure its obligations
under the Loan Documents to which it is a party other than (a) this Agreement and the other Loan Documents, (b) any agreements governing any purchase money Liens or Capital Lease
Obligations otherwise permitted hereby or Indebtedness permitted under Section 7.2(d) (in which case, any prohibition or limitation shall only be effective against the assets financed thereby),
(c) agreements containing customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Borrower or any of its Subsidiaries entered into in the
ordinary course of business, (d) agreements containing customary provisions restricting assignment of any contract entered into by the Borrower or any of its Subsidiaries in the ordinary course
of business, (e) agreements containing customary provisions restricting the assignment of licensing agreements, management agreements or franchise agreements entered into by the Borrower or any
of its Subsidiaries in the ordinary course of business, (f) agreements containing any restriction or encumbrance with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary, so long as such sale or disposition of
all or substantially all of the Capital Stock or assets of such Subsidiary is permitted under this Agreement, (g) agreements containing restrictions on the transfer of any asset pending the
close of the sale of such asset so long as such sale is permitted under this Agreement and (h) agreements containing restrictions with respect to Foreign Subsidiaries in connection with
financing arrangements for their benefit that are not otherwise prohibited under this Agreement. 


        7.15    Clauses Restricting Subsidiary Distributions.    Enter into or suffer to exist or become effective any
consensual encumbrance or restriction on the ability of any Subsidiary of the Borrower to (a) make Restricted Payments in respect of any Capital Stock of such Subsidiary held by, or pay any
Indebtedness owed to, the Borrower or any other Subsidiary of the Borrower, (b) make loans or advances to, or other Investments in, the Borrower or any other Subsidiary of the Borrower or
(c) transfer any of its assets to the Borrower or any other Subsidiary of the Borrower, except for such encumbrances or restrictions existing under or by reason of (i) any restrictions
existing under the Loan Documents, (ii) any restrictions with respect to a Subsidiary imposed pursuant to an agreement that has been entered into in connection with the Disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary, (iii) restrictions contained in agreements referenced in Sections 7.14(b), (c), (d), (e) and (g), and (iv) any
restriction with respect to Foreign Subsidiaries in connection with financing arrangements for their benefit that are not otherwise prohibited under this Agreement. 



        7.16    Lines of Business.    Enter into any business, either directly or through any Subsidiary, except for those
businesses in which the Borrower and its Subsidiaries are engaged on the date of this Agreement (after giving effect to the Acquisition) or that are reasonably related or incidental thereto. 


        7.17    Amendments to Acquisition Documents.    (a) Amend, supplement or otherwise modify (pursuant to a waiver
or otherwise) the terms and conditions of the indemnities and licenses furnished to the Borrower or any of its Subsidiaries pursuant to the Acquisition Documentation such that after giving effect
thereto such indemnities or licenses shall be materially less favorable to the interests of the Loan Parties or the Lenders with respect thereto or (b) otherwise amend, supplement or otherwise
modify the terms and conditions of the Acquisition Documentation or any such other documents except 


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for
any such amendment, supplement or modification that (i) becomes effective after the Closing Date and (ii) could not reasonably be expected to have a Material Adverse Effect. 


SECTION 8. EVENTS OF DEFAULT 


        If
any of the following events shall occur and be continuing: 



        (a)   the
Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay any
interest on any Loan or Reimbursement Obligation, or any other amount payable hereunder or under any other Loan Document, within five days after any such interest or other amount becomes due in
accordance with the terms hereof; or 


        (b)   any
representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial
or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been inaccurate in any material respect on or as of the
date made or deemed made; or 


        (c)   (i) any
Loan Party shall default in the observance or performance of any agreement contained in clause (i) of Section 6.4(a) (with respect to
Holdings and the Borrower only), Section 2.9, 6.7(a) or Section 7 of this Agreement (excluding Section 7.1) or Sections 5.5 and 5.7(b) of the Guarantee and Collateral Agreement or
(ii) an "Event of Default" under and as defined in any Mortgage shall have occurred and be continuing; or 


        (d)   the
Borrower shall default in the observance or performance of any financial covenant set forth in Section 7.1, and such default shall continue unremedied for a
period of 15 days after the date on which delivery of the relevant financial statements is required pursuant to Section 6.1; any default referred to in this paragraph (d) may be
cured by any Person making an investment in Holdings (provided that such investment shall not result in an Event of Default under Section 8(l)),
the proceeds of which shall be contributed by Holdings to the common equity of the Borrower and Consolidated Adjusted EBITDA for the period for which such default shall have occurred shall be deemed
increased by the amount of such common equity contribution; or 


        (e)   any
Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (d) of this Section), and such default shall continue unremedied for a period of 30 days after notice to the Borrower from the Administrative Agent or the
Required Lenders; or 


        (f)    any
Group Member (other than any Immaterial Subsidiary) shall (i) default in making any payment of any principal of any Indebtedness (including any Guarantee
Obligation in respect of Indebtedness, but excluding the Loans or Guarantee Obligations in respect thereof) on the scheduled or original due date with respect thereto; or (ii) default in making
any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in
the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf
of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a
Guarantee Obligation) to become payable; provided, that a default, event or condition described in clause (i), (ii) or (iii) of
this paragraph (f) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) and
(iii) of 



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this
paragraph (f) shall have occurred and be continuing with respect to Indebtedness the outstanding principal amount of which exceeds in the aggregate $5,000,000; or 


        (g)   (i) any
Group Member (other than any Immaterial Subsidiary) shall commence any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it
a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or
(B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Group Member (other than any
Immaterial Subsidiary) shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any
case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or
(B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any
case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an
order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) any Group Member (other than any
Immaterial Subsidiary) shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) any Group Member (other than any Immaterial Subsidiary) shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they
become due; or 


        (h)   (i) any
Person shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of any Group Member or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) any Group Member or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any event
or condition not in the ordinary course shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other
such events or conditions, if any, could, in the reasonable judgment of the Required Lenders, reasonably be expected to have a Material Adverse Effect; or 



        (i)    one
or more judgments or decrees shall be entered against any Group Member involving in the aggregate a liability (to the extent not paid or covered by insurance) of
$5,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or 



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        (j)    any
of the Security Documents shall cease, for any reason, to be in full force and effect (other than in accordance with its terms), or any Loan Party or any Affiliate
of any Loan Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby (except as
provided in the Loan Documents); or 


        (k)   the
guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason (other than in accordance with its terms), to be in
full force and effect or any Loan Party or any Affiliate of any Loan Party shall so assert; or 


        (l)    (i) prior
to an initial public offering of Holdings Common Stock, the Permitted Investors shall cease to have the power to vote or direct the voting of securities
having a majority of the ordinary voting power for the election of directors of Holdings (determined on a fully diluted basis); (ii) following an initial public offering of Holdings Common
Stock, (A) the Permitted Investors shall cease to have the power to vote or direct the voting of securities having at least 30% of the ordinary voting power for the election of directors of
Holdings (determined on a fully diluted basis) or (B) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") shall become, or obtain rights (whether by means or warrants, options or otherwise) to become, the "beneficial owner" (as defined in
Rule 13(d)(3) and 13(d)(5) of the Exchange Act), directly or indirectly, of more of the outstanding common stock of Holdings than the Permitted Investors own; (iii) the board of
directors of Holdings shall cease to consist of a majority of Continuing Directors; (iv) Holdings shall cease to own and control, of record and beneficially, directly, 100% of each class of
outstanding Capital Stock of the Borrower free and clear of all Liens (except Liens created by the Guarantee and Collateral Agreement); or (v) the "Maturity Date" shall occur under the first
paragraph of the Seller Note (after giving effect to any grace periods); 


        (m)  Holdings
shall directly or indirectly (i) conduct, transact or otherwise engage in, or commit to conduct, transact or otherwise engage in, any business or
operations other than those incidental to its ownership of the Capital Stock of the Borrower and in connection with employment contracts entered into with officers of Holdings and its Subsidiaries,
(ii) incur, create, assume or suffer to exist any Indebtedness or other liabilities or financial obligations, except (v) obligations in respect of surety bonds referred to in
Section 7.3(s), (w) the Seller Note, (x) nonconsensual obligations imposed by operation of law, (y) Indebtedness, liabilities and obligations pursuant to the Loan Documents
to which it is a party, agreements entered into in connection with or related to the Acquisition, Permitted Acquisitions and issuances of Capital Stock, agreements entered into with directors and
officers of Holdings and corporate overhead expenses and (z) obligations with respect to its Capital Stock, or (iii) own, lease, manage or otherwise operate any properties or assets
(including cash and Cash Equivalents (other than cash and Cash Equivalents received in connection with dividends made by the Borrower in accordance with Section 7.6 pending application in the
manner contemplated by said Section or in connection with capital contributions or the issuance and sale of Capital Stock)) other than the ownership of shares of Capital Stock of the Borrower; or 



        (n)   the
Seller Note shall cease, for any reason, to be validly subordinated to Holdings' obligations under the Guarantee and Collateral Agreement, as provided in the Seller
Note, or Holdings shall so assert; then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (g) above with respect
to the Borrower, automatically the Commitments shall immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents
(including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) shall immediately become
due and payable, and (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, 



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or
upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the Revolving Commitments to be terminated forthwith, whereupon the Revolving Commitments
shall immediately terminate; and (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately
become due and payable. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the
Borrower shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of amounts drawn under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations of the Borrower hereunder and under the other Loan Documents. After all such Letters
of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations of the Borrower hereunder and under the other Loan Documents
shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrower (or such other Person as may be lawfully entitled thereto). Except as expressly
provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrower. 



SECTION 9. THE AGENTS 


        9.1    Appointment.    Each Lender hereby irrevocably designates and appoints the Administrative Agent as the agent of
such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and
the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. 


        9.2    Delegation of Duties.    The Administrative Agent may execute any of its duties under this Agreement and the
other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with reasonable care. 


        9.3    Exculpatory Provisions.    Neither any Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or
such Person's own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan
Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents
under or in connection with, 


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this
Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any
Loan Party a party thereto to perform its obligations hereunder or thereunder. The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party. 


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


        9.5    Notice of Default.    The Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Administrative Agent has received notice from a Lender, Holdings or the Borrower referring to this Agreement, describing such Default or Event
of Default and stating that such notice is a "notice of default". In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders.
The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders. 


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


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Administrative
Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates. 


        9.7    Indemnification.    The Lenders agree to indemnify each Agent in its capacity as such (to the extent not
reimbursed by Holdings or the Borrower and without limiting the obligation of Holdings or the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the
date on which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with such Aggregate Exposure Percentages immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether
before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent's gross negligence or willful misconduct. The agreements in
this Section shall survive the payment of the Loans and all other amounts payable hereunder. 


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


        9.9    Successor Administrative Agent.    The Administrative Agent may resign as Administrative Agent upon
10 days' notice to the Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default under Section 8(a) or Section 8(g) with respect to the
Borrower shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to
the rights, powers and duties of the Administrative Agent, and the term "Administrative Agent" shall mean such successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the
parties to this Agreement or any holders of the Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is 10 days following a retiring Administrative
Agent's notice of resignation, the retiring Administrative Agent's resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above (subject to the Borrower's approval, as provided above). After any
retiring Administrative Agent's resignation as Administrative Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent under this Agreement and the other Loan Documents. 


        9.10    Syndication Agent.    The Syndication Agent shall not have any duties or responsibilities hereunder in its
capacity as such. 


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SECTION 10. MISCELLANEOUS 


        10.1    Amendments and Waivers.    Neither this Agreement, any other Loan Document, nor any terms hereof or thereof
may be amended (or amended and restated), supplemented or modified except in accordance with the provisions of this Section 10.1. The Required Lenders and each Loan Party party to the relevant
Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner
the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall (i) forgive the principal amount or extend the final scheduled date of maturity of any Loan, extend the scheduled date of any scheduled
amortization payment in respect of any Term Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in connection with the waiver of applicability of any
post-default increase in interest rates (which waiver shall be effective with the consent of the Majority Facility Lenders of each adversely affected Facility) and (y) that any
amendment or modification of defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or
extend the scheduled date of any payment thereof, or increase the amount or extend the expiration date of any Lender's Revolving Commitment, in each case without the written consent of each Lender
directly affected thereby; (ii) eliminate or reduce the voting rights of any Lender under this Section 10.1 without the written consent of such Lender; (iii) reduce any percentage
specified in the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release
all or substantially all of the Collateral or release all or substantially all of the Subsidiary Guarantors from their obligations under the Guarantee and Collateral Agreement, in each case without
the written consent of all Lenders; (iv) amend, modify or waive any provision of Section 2.17 without the written consent of the Majority Facility Lenders in respect of each Facility
adversely affected thereby; (v) reduce the percentage specified in the definition of Majority Facility Lenders with respect to any Facility without the written consent of all Lenders under such
Facility; (vi) amend, modify or waive any provision of Section 9 without the written consent of the Administrative Agent; (vii) amend, modify or waive any provision of
Section 2.6 or 2.7 without the written consent of the Swingline Lender; or (viii) amend, modify or waive any provision of Section 3 without the written consent of the Issuing
Lender. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent
and all future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the
other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon. 


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


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        In
addition, notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Administrative Agent, the Borrower and the Lenders
providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans ("Refinanced Term Loans") with
a replacement term loan facility hereunder ("Replacement Term Loans"), provided that (a) the
aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term
Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the
weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially similar
to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms
applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing. 



        10.2    Notices.    All notices, requests and demands to or upon the respective parties hereto to be effective shall
be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three Business Days after being deposited in
the mail, postage prepaid, or, in the case of telecopy notice, when received, addressed as follows in the case of Holdings, the Borrower, the Issuing Lender and the Administrative Agent, and as set
forth in an administrative questionnaire delivered to the Administrative Agent in the case of the Lenders, or to such other address as may be hereafter notified by the respective parties hereto: 



	 	 	Holdings:	 	Dearborn Holdings Corporation

c/o

GFI Energy Ventures LLC

11611 San Vicente Boulevard, Suite 710

Los Angeles, CA 90049

Attention: Ian Schapiro

Telecopy: (310) 442-0540

Telephone: (310) 442-0542
	

 	
 	

 	
 	

and

c/o Oaktree Capital Management, LLC

333 South Grand Avenue

Los Angeles, CA 90071

Attention: Christopher Brothers

Telecopy: (213) 830-6395

Telephone: (213) 830-6356
	

 	
 	

 	
 	

with a copy to:
	

 	
 	

 	
 	

Skadden, Arps, Slate, Meagher & Flom LLP

300 South Grand Avenue

Los Angeles, CA 90071

Attention: David C. Reamer, Esq.

Telecopy: (213) 687-5600

Telephone: (213) 687-5052
	

 	
 	

Borrower:	
 	

InfraSource Incorporated

500 W. Dutton Mill Road

Aston, Pennsylvania 19104

Attention: Chief Financial Officer

Telecopy: (610) 619-3081

Telephone: (610) 619-3040





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Administrative Agent:	
 	

Barclays Bank PLC

200 Park Avenue

New York, NY 10166

Attention: May Huang

Telecopy: 212-412-5306

Telephone: 212-412-3730

may.huang@barcap.com
	

 	
 	

Issuing Lender:	
 	

LaSalle Bank National Association

200 West Monroe Street

Chicago, Illinois 60606

Attention: Standby Letter of Credit Department

Telecopy: 312-780-0828

Telephone: 312-904-8462





provided that any notice, request or demand to or upon the Administrative Agent, the Issuing Lender or the Lenders shall not be
effective until received. 


        Notices
and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent;  provided that the foregoing
shall not apply to notices pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative Agent, the Issuing Lender or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. 


        10.3    No Waiver; Cumulative Remedies.    No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. 


        10.4    Survival of Representations and Warranties.    All representations and warranties made hereunder, in the other
Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans
and other extensions of credit hereunder. 


        10.5    Payment of Expenses and Taxes.    The Borrower agrees (a) to pay or reimburse the Administrative Agent
for all its reasonable out-of-pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification
to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby
and thereby, including the reasonable fees and disbursements of outside counsel to the Administrative Agent and filing and recording fees and expenses, with statements with respect to the foregoing to
be submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender and the Administrative Agent for all its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and any such other documents, including the fees and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Lender and of counsel to the Administrative Agent, (c) to pay, indemnify, and hold each Lender and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and 


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other
taxes, if any, that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify,
and hold each Lender and the Administrative Agent and their respective officers, directors, employees, affiliates, agents and controlling persons (each, an "Indemnitee") harmless from and against any
and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of any Group Member or any property at any time owned, leased, or in any way used
by any Group Member, or any entity for which any Group Member is alleged to be responsible, and the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by
any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause (d), collectively, the "Indemnified Liabilities"), provided, that the Borrower shall have no
obligation hereunder to an Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities resulted from the gross negligence, bad faith or willful misconduct of such
Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees
to cause its Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, except to the extent such rights are based on
the gross negligence or willful misconduct of such Indemnitee. All amounts due under this Section 10.5 shall be payable not later than 10 days after written demand therefor (accompanied
by appropriate supporting invoices and detail). Statements payable by the Borrower pursuant to this Section 10.5 shall be submitted to Terrance F. Montgomery (Telephone No.
(610) 619-3040) (Telecopy No. (610) 619-3081)), at the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be
hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive repayment of the Loans and all other amounts payable
hereunder. 


        10.6    Successors and Assigns; Participations and Assignments.    



        (a)   The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby
(including any affiliate of the Issuing Lender that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance with this Section. 


        (b)   (i) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or
more assignees (each, an "Assignee") all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments
and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of: 




        (A)  the
Borrower, provided that no consent of the Borrower shall be required for an assignment to a Lender, an affiliate of a
Lender, an Approved Fund (as defined below) or, if an Event of Default has occurred and is continuing, any other Person; and 


        (B)  the
Administrative Agent and the Issuing Lender, provided that no consent of the Administrative Agent or the Issuing
Lender shall be required for an assignment of (x) any Revolving Commitment to an assignee that is a Lender with a Revolving 





69





 






Commitment
immediately prior to giving effect to such assignment or (y) all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund;  provided, further, that the assignment of all or any portion of a Term Loan shall not require the
consent of the Issuing Lender. 




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



        (A)  except
in the case of an assignment to a Lender, an affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender's
Commitments or Loans under any Facility, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 unless each of the Borrower and the Administrative Agent otherwise consent,  provided that
(1) no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing and (2) such
amounts shall be aggregated in respect of each Lender and its affiliates or Approved Funds, if any; 



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


        (C)  the
Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire. 






        For
the purposes of this Section 10.6, the term "Approved Fund" has the following meaning: 


        "Approved Fund" means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans
and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender. 




        (iii)  Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from and after the effective date specified in each Assignment and
Assumption the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case
of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.18, 2.19, 2.20 and 10.5). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.6 shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section. 


        (iv)  The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent, the
Issuing Lender and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the Borrower, the Issuing Lender and any Lender, at any reasonable time and from time to time upon reasonable prior notice. 




70





 





        (v)   Upon
its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee's completed administrative questionnaire
(unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. 




        (c)   (i) Any
Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided that (A) such Lender's obligations under this Agreement shall remain unchanged, (B) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, the Issuing Lender
and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;  provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or
waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 10.1 and (2) directly affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.18, 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 (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.7(b) as though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as though it were a Lender. 



        (ii)   A
Participant shall not be entitled to receive any greater payment under Section 2.18, 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 the Borrower's prior written consent. Any Participant that is
a Non-U.S. Lender shall not be entitled to the benefits of Section 2.19 unless such Participant complies with Section 2.19(d). 




        (d)   Any
Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest;  provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such
pledgee or Assignee for such Lender as a party hereto. 


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


        (f)    Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may have funded hereunder to its designating Lender without the consent of the
Borrower or the Administrative Agent and without regard to the limitations set forth in Section 10.6(b). Each of Holdings, the Borrower, each Lender and the Administrative Agent hereby confirms
that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest 



71





 




maturing
commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to
indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such
period of forbearance. 


        (g)   If
the Borrower wishes to replace all or a portion of the Loans or Commitments under any Facility with Loans or Commitments, as applicable, having different terms, it
shall have the option, with the consent of the Administrative Agent and subject to at least three Business Days' advance notice to the relevant Lenders, instead of prepaying the Loans or reducing or
terminating the Commitments to be replaced, to (i) require the relevant Lenders to assign such Loans or Commitments to the Administrative Agent or its designees and (ii) amend the terms
thereof in accordance with Section 10.1 (with such replacement, if applicable, being deemed to have been made pursuant to the last paragraph of Section 10.1). Pursuant to any such
assignment, all Loans and Commitments to be replaced shall be purchased at par (allocated among the relevant Lenders in the same manner as would be required if such Loans were being optionally prepaid
or such Commitments were being optionally reduced or terminated by the Borrower), accompanied by payment of any accrued interest and fees thereon and any amounts owing pursuant to Section 2.20,
and, in the case the Facility being replaced is the Revolving Facility, all Letters of Credit then outstanding shall be replaced by Letters of Credit issued by a replacement Issuing Lender. By
receiving such purchase price, the relevant Lenders shall automatically be deemed to have assigned the relevant Loans or Commitments pursuant to the terms of the form of Assignment and Assumption
attached hereto as Exhibit E, and accordingly no other action by such Lenders shall be required in connection therewith. 




        10.7    Adjustments; Set-off.    



        (a)   Except
to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders under a particular Facility, if any
Lender (a "Benefitted Lender") shall, at any time after the Loans and other amounts payable hereunder shall immediately become due and payable pursuant to Section 8, receive any payment of all
or part of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(g), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such
other Lender, such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such
other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without interest. 


        (b)   In
addition to any rights and remedies of the Lenders provided by law, each Lender shall at any time when an Event of Default shall have occurred and be continuing have
the right, without prior notice to Holdings, the Borrower or any Subsidiary Guarantor, any such notice being expressly waived by Holdings, the Borrower and each Subsidiary Guarantor to the extent
permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate
and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings,
the Borrower or any Subsidiary Guarantor, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and 



72





 




application
made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application. 




        10.8    Counterparts.    This Agreement may be executed by one or more of the parties to this Agreement on any number
of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent. 


        10.9    Severability.    Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 



        10.10    Integration.    This Agreement and the other Loan Documents represent the entire agreement of Holdings, the
Borrower, the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents. 


        10.11    GOVERNING LAW.    THIS AGREEMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


        10.12    Submission To Jurisdiction; Waivers.    Each of Holdings and the Borrower hereby irrevocably and
unconditionally: 



        (a)   submits
for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof; 


        (b)   consents
that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; 


        (c)   agrees
that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar
form of mail), postage prepaid, to Holdings or the Borrower, as the case may be at its address set forth in Section 10.2 or at such other address of which the Administrative Agent shall have
been notified pursuant thereto; 


        (d)   agrees
that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other
jurisdiction; and 


        (e)   waives,
to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages. 



73







   
        10.13    Acknowledgements.    Each of Holdings and the Borrower hereby acknowledges that: 


        (a)   it
has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents; 



        (b)   neither
the Administrative Agent nor any Lender has any fiduciary relationship with or duty to Holdings or the Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between Administrative Agent and Lenders, on one hand, and Holdings and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and 


        (c)   no
joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among
Holdings, the Borrower and the Lenders. 


        10.14    Releases of Guarantees and Liens.    (a) Notwithstanding anything to the contrary contained herein or
in any other Loan Document, the Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender except as expressly required by
Section 10.1) to take, and the Administrative Agent shall take or cause to be taken, any action requested by the Borrower having the effect of releasing any Collateral or guarantee obligations
(i) to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section 10.1 or
(ii) under the circumstances described in paragraphs (b) or (c) below. 



        (b)   At
such time as the Loans, the Reimbursement Obligations and the other obligations under the Loan Documents (other than obligations under or in respect of Swap
Agreements) shall have been paid in full, the Commitments have been terminated and no Letters of Credit shall be outstanding (unless cash collateralized in a manner reasonably satisfactory to the
Administrative Agent and the Issuing Lender), the Collateral shall be released from the Liens created by the Security Documents, and the Security Documents and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent and each Loan Party under the Security Documents shall terminate, all without delivery of any instrument or performance of any
act by any Person. 


        (c)   To
the extent the Required Lenders waive the provisions of the Loan Documents with respect to the sale or other disposition of any Collateral, or any Collateral is sold
or otherwise disposed of in a manner not prohibited by the Loan Documents, such Collateral (unless transferred to the Borrower or a Subsidiary Guarantor) shall be sold or otherwise disposed of free
and clear of the Liens created by the Loan Documents, and the Administrative Agent shall take such actions, at the sole expense of the Borrower (including, without limitation, directing any collateral
agent to take such actions), as are appropriate in connection therewith to release any such Lien. To the extent the Collateral so sold or disposed of constitutes Capital Stock of a Subsidiary
Guarantor, the Guarantee Obligations of such Subsidiary Guarantor in respect of the Obligations and all obligations of such Subsidiary Guarantor under the Loan Documents shall terminate and be of no
further force and effect, and the Administrative Agent shall take such actions, at the sole expense of the Borrower (including directing any collateral agent to take such actions) as are appropriate
in connection with such termination. 


        10.15    Confidentiality.    Each of the Administrative Agent and each Lender agrees to keep confidential all
non-public information provided to it by any Loan Party, the Administrative Agent or any Lender pursuant to or in connection with this Agreement; provided that nothing herein shall prevent
the Administrative Agent or any Lender from disclosing any such information (a) to the Administrative Agent, any other Lender or any affiliate thereof, (b) subject to an agreement to
comply with the provisions of this Section, to any actual or prospective Transferee or any direct or indirect counterparty to any Swap Agreement (or any professional advisor to such counterparty),
(c) to its employees, directors, agents, attorneys, accountants and other professional advisors or those of any of 


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its
affiliates, (d) upon the request or demand of any Governmental Authority, (e) in response to any order of any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (f) if requested or required to do so in connection with any litigation or similar proceeding, (g) that has been publicly disclosed, (h) to the
National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender, or (i) in connection with the exercise of any remedy hereunder or under any other Loan Document. Notwithstanding anything herein to
the contrary, any party to this Agreement (and any employee, representative, or other agent of any party to this Agreement) may disclose to any and all persons, without limitation of any kind, the tax
treatment and any facts that may be relevant to the tax structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are
provided to it relating to such tax treatment and tax structure. However, any such information relating to the tax treatment or tax structure is required to be kept confidential to the extent
necessary to comply with any applicable federal or state securities laws. 


        10.16    WAIVERS OF JURY TRIAL.    HOLDINGS,
THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


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



	

 	

DEARBORN HOLDINGS CORPORATION
	

 	

By:	

/s/ Ian Schapiro

	 	Name: Ian Schapiro

Title: President









	 	INFRASOURCE INCORPORATED
	

 	

By:	

/s/ David R. Helwig

	 	Name: David R. Helwig

Title: President and Chief Executive Officer









	 	BARCLAYS BANK PLC, as Administrative Agent

and as a Lender
	

 	

By:	

/s/ John Giannone

	 	Name: John Giannone

Title: Director
	

 	

LASALLE BANK NATIONAL ASSOCIATION,

as Syndication Agent and as a Lender
	

 	

By:	

/s/ James P. Bahleda

	 	Name: James P. Bahleda

Title: Commercial Banking Officer











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TABLE OF CONTENTS


SECTION 3. LETTERS OF CREDIT

SECTION 4. REPRESENTATIONS AND WARRANTIES

SECTION 5. CONDITIONS PRECEDENT

SECTION 6. AFFIRMATIVE COVENANTS