exv10w12





Exhibit 10.12


VSS-CAMBIUM MERGER CORP.

(which on the Closing Date will be merged with and into Cambium Learning, Inc.)

AS COMPANY




VSS-CAMBIUM HOLDINGS, LLC

AS GUARANTOR




TCW/CRESCENT MEZZANINE PARTNERS IV, L.P.

TCW/CRESCENT MEZZANINE PARTNERS IVB, L.P.

MAC CAPITAL, LTD.

NEW YORK LIFE INVESTMENT MANAGEMENT MEZZANINE PARTNERS II, LP

NYLIM MEZZANINE PARTNERS II PARALLEL FUND, LP

GOLDENTREE CAPITAL SOLUTIONS FUND FINANCING

GOLDENTREE CAPITAL OPPORTUNITIES, LP

AS PURCHASERS




AND




THE OTHER PURCHASERS FROM TIME TO TIME

A PARTY HERETO




AND




TCW/CRESCENT MEZZANINE PARTNERS IV, L.P.

AS ADMINISTRATIVE AGENT




 





NOTE PURCHASE AGREEMENT




April 12, 2007




 




















 











TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	1. DEFINITIONS
	 	 	 	 
	1.1 Definitions
	 	 	2	 
	1.2 Accounting Terms
	 	 	30	 
	1.3 Definitional Provisions
	 	 	30	 
	 
	 	 	 	 
	2. PURCHASE AND SALE OF NOTES
	 	 	 	 
	2.1 Purchase and Sale of the Notes
	 	 	31	 
	2.2 Closing
	 	 	32	 
	2.3 Fees and Expenses
	 	 	32	 
	2.4 Financial Accounting Positions; Tax Reporting
	 	 	32	 
	2.5 Payments
	 	 	32	 
	2.6 Taxes, Etc
	 	 	33	 
	 
	 	 	 	 
	3. CONDITIONS TO OBLIGATIONS OF THE PURCHASERS TO PURCHASE THE NOTES ON THE
CLOSING DATE
	 	 	 	 
	3.1 Representations and Warranties
	 	 	37	 
	3.2 Compliance with this Agreement
	 	 	37	 
	3.3 Secretary’s Certificates
	 	 	37	 
	3.4 Good Standing Certificates
	 	 	37	 
	3.5 Purchase of Notes Permitted by Applicable Laws
	 	 	38	 
	3.6 Opinion of Counsel
	 	 	38	 
	3.7 Approval of Counsel To the Purchasers
	 	 	38	 
	3.8 Consents and Approvals
	 	 	38	 
	3.9 No Material Judgment or Order
	 	 	38	 
	3.10 No Material Adverse Change
	 	 	39	 
	3.11 Pro Forma Balance Sheet and Projections
	 	 	39	 
	3.12 Transaction Documents
	 	 	39	 
	3.13 Fees and Expenses
	 	 	39	 
	3.14 Structure
	 	 	39	 
	3.15 Disbursement Letter
	 	 	39	 
	3.16 Insurance
	 	 	39	 
	3.17 Certificates
	 	 	40	 
	3.18 Holdings Equityholders Agreement
	 	 	40	 
	3.19 Related Transactions
	 	 	40	 
	 
	 	 	 	 
	4. CONDITIONS TO THE OBLIGATION OF THE COMPANY TO ISSUE AND SELL THE NOTES
	 	 	 	 
	4.1 Representations and Warranties
	 	 	40	 
	4.2 Compliance with this Agreement
	 	 	40	 
	 
	 	 	 	 
	5. REPRESENTATIONS AND WARRANTIES OF THE ISSUER PARTIES
	 	 	 	 
	5.1 Organization; Powers
	 	 	41	 
	5.2 Authorization; Enforceability
	 	 	41	 
	5.3 No Conflicts
	 	 	41	 
	5.4 Financial Statements; Projections
	 	 	42	 






i









 




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	5.5 Properties
	 	 	42	 
	5.6 Intellectual Property
	 	 	43	 
	5.7 Equity Interests and Subsidiaries
	 	 	44	 
	5.8 Litigation; Compliance with Laws
	 	 	45	 
	5.9 Agreements
	 	 	45	 
	5.10 Federal Reserve Regulations
	 	 	45	 
	5.11 Investment Company Act
	 	 	46	 
	5.12 Use of Proceeds
	 	 	46	 
	5.13 Taxes
	 	 	46	 
	5.14 No Material Misstatements
	 	 	46	 
	5.15 Labor Matters
	 	 	47	 
	5.16 Solvency
	 	 	47	 
	5.17 Employee Benefit Plans
	 	 	47	 
	5.18 Environmental Matters
	 	 	48	 
	5.19 Insurance
	 	 	49	 
	5.20 Intentionally Omitted
	 	 	49	 
	5.21 Acquisition Documents; Representations and Warranties in
Acquisition Agreement
	 	 	49	 
	5.22 Anti-Terrorism Law
	 	 	50	 
	5.23 Private Offering
	 	 	51	 
	5.24 Broker’s, Finder’s or Similar Fees
	 	 	51	 
	5.25 Capitalization/Acquisition Documents
	 	 	51	 
	 
	 	 	 	 
	6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
	 	 	 	 
	6.1 Authorization; No Contravention
	 	 	51	 
	6.2 Binding Effect
	 	 	52	 
	6.3 No Legal Bar
	 	 	52	 
	6.4 Purchase for Own Account
	 	 	52	 
	6.5 ERISA
	 	 	53	 
	6.6 Broker’s, Finder’s or Similar Fees
	 	 	53	 
	6.7 Governmental Authorization; Third Party Consent
	 	 	53	 
	6.8 Accredited Investor
	 	 	53	 
	6.9 Anti-Money Laundering Representation
	 	 	53	 
	6.10 Information
	 	 	53	 
	 
	 	 	 	 
	7. INDEMNIFICATION
	 	 	 	 
	7.1 Indemnification
	 	 	54	 
	7.2 Notification
	 	 	54	 
	7.3 Survival of Indemnification Provisions
	 	 	55	 
	 
	 	 	 	 
	8. COVENANTS
	 	 	 	 
	8.1 Affirmative Covenants
	 	 	55	 
	8.2 Negative Covenants
	 	 	66	 
	8.3 Financial Covenants
	 	 	82	 





ii








 




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	9. DEFAULTS AND REMEDIES
	 	 	 	 
	9.1 Events of Default
	 	 	82	 
	9.2 Acceleration
	 	 	85	 
	9.3 Suits for Enforcement
	 	 	85	 
	9.4 Remedies Cumulative
	 	 	86	 
	9.5 Remedies Not Waived
	 	 	86	 
	9.6 Certain Cure Rights
	 	 	86	 
	 
	 	 	 	 
	10. PREPAYMENT
	 	 	 	 
	10.1 Optional Prepayment
	 	 	87	 
	10.2 Mandatory Prepayment
	 	 	87	 
	 
	 	 	 	 
	11. THE ADMINISTRATIVE AGENT
	 	 	 	 
	11.1 Appointment
	 	 	87	 
	11.2 Delegation of Duties
	 	 	88	 
	11.3 Exculpatory Provisions
	 	 	88	 
	11.4 Reliance by Administrative Agent
	 	 	88	 
	11.5 Action on Default
	 	 	89	 
	11.6 Non-Reliance on Agents and Other Purchasers
	 	 	89	 
	11.7 Indemnification
	 	 	89	 
	11.8 Agent in Its Individual Capacity
	 	 	90	 
	11.9 Successor Agents
	 	 	90	 
	 
	 	 	 	 
	12. MISCELLANEOUS
	 	 	 	 
	12.1 Survival of Representations and Warranties
	 	 	91	 
	12.2 Notices
	 	 	91	 
	12.3 Successors and Assigns
	 	 	93	 
	12.4 Amendment and Waiver
	 	 	95	 
	12.5 Responsible Officer
	 	 	96	 
	12.6 Signatures and Counterparts
	 	 	96	 
	12.7 Headings
	 	 	96	 
	12.8 GOVERNING LAW
	 	 	97	 
	12.9 WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION
	 	 	97	 
	12.10 Severability
	 	 	98	 
	12.11 Entire Agreement
	 	 	98	 
	12.12 Certain Expenses
	 	 	98	 
	12.13 Publicity
	 	 	99	 
	12.14 Further Assurances
	 	 	99	 
	12.15 Note Register
	 	 	99	 
	12.16 Confidentiality
	 	 	99	 






iii








 




EXHIBITS AND SCHEDULES



	 	 	 
	Exhibit A
	 	Form of Closing Note
	Exhibit B
	 	Form of Guaranty
	Exhibit C
	 	Form of Compliance Certificate
	Exhibit D
	 	Form of Assignment
	Exhibit E
	 	Form of Subsidiary Guaranty
	Exhibit F
	 	Form of Joinder Agreement
	Exhibit G
	 	Form of PIK Note
	Exhibit H
	 	Form of Amended and Restated Note
	 
	 	 
	Schedule 1
	 	Mortgaged Property
	Schedule 2
	 	Refinancing
	Schedule 3
	 	Subsidiary Guarantor
	Schedule 5.3
	 	Governmental Consents
	Schedule 5.5(b)
	 	Real Property
	Schedule 5.6(a)
	 	Intellectual Property Claims
	Schedule 5.6(b)
	 	Intellectual Property, Registrations and Licenses
	Schedule 5.6(c)
	 	Violations
	Schedule 5.7(a)
	 	Subsidiaries
	Schedule 5.7(b)
	 	Organizational Chart
	Schedule 5.9
	 	Material Contracts
	Schedule 5.18
	 	Environmental Matters
	Schedule 5.19
	 	Insurance
	Schedule 5.21
	 	Acquisition Agreement Exhibits and Schedules
	Schedule 5.24
	 	Commission Fees
	Schedule 8.2(a)(ii)
	 	Outstanding Indebtedness
	Schedule 8.2(b)(iii)
	 	Permitted Liens
	Schedule 8.2(d)(ii)
	 	Investments
	Schedule 8.2(i)
	 	Affiliate Transactions





iv








 




NOTE PURCHASE AGREEMENT, dated as of April 12, 2007,


BY AND AMONG



	(1)	 	VSS-CAMBIUM MERGER CORP., a Delaware corporation (which on the Closing Date will be merged
with and into Cambium Learning, Inc., the “Company”),
	 
	(2)	 	VSS-CAMBIUM HOLDINGS, LLC, a Delaware limited liability company (“Holdings”),
	 
	(3)	 	TCW/CRESCENT MEZZANINE PARTNERS IV, L.P., a Delaware limited partnership (“TCW IV”),
	 
	(4)	 	TCW/CRESCENT MEZZANINE PARTNERS IVB, L.P., a Delaware limited partnership (“TCW IVB”),
	 
	(5)	 	MAC CAPITAL, LTD., a Cayman Islands company (“MAC”),
	 
	(6)	 	NYLIM MEZZANINE PARTNERS II PARALLEL FUND, LP, a Delaware limited partnership (“NY
Parallel”),
	 
	(7)	 	NEW YORK LIFE INVESTMENT MANAGEMENT MEZZANINE PARTNERS II, LP, a Delaware limited partnership
(“NY Mezzanine”),
	 
	(8)	 	GOLDENTREE CAPITAL SOLUTIONS FUND FINANCING, Cayman Islands Sub-Trust (“GCSFF”),
	 
	(9)	 	GOLDENTREE CAPITAL OPPORTUNITIES, LP, a Delaware Limited Partnership (“GCO”),
	 
	(10)	 	THE OTHER PURCHASERS FROM TIME TO TIME PARTY HERETO (TCW IV, TCW IVB, MAC, NY Parallel, NY
Mezzanine, GCFSC, GCO and such other purchasers together with their respective successors and
registered assigns, each a “Purchaser” and collectively, the “Purchasers”), and
	 
	(11)	 	TCW IV, as administrative agent for the Purchasers (in such capacity and together with its
successors and permitted assigns, the “Administrative Agent”).





WITNESSETH:




WHEREAS, Holdings has entered into a certain Stock Purchase Agreement, dated as of January 29, 2007
(as amended, supplemented or otherwise modified from time to time in accordance with the
provisions hereof and thereof, the “Acquisition Agreement”), with Cambium Learning, Inc.
(“Target”) and each of the stockholders of Target (“Sellers”), to acquire (the “Acquisition”)
all of the capital stock of Target from the Sellers, which will result in Holdings being the
beneficial owner of Target and its subsidiaries (the “Acquired Business”).











 








WHEREAS, the Acquisition will be effected by a merger (the “Merger”) of the Company with and into
Target, with Target surviving the merger.



WHEREAS, the Equity Financing shall be consummated simultaneously herewith.



WHEREAS, the Company will consummate the Acquisition on the Closing Date.



WHEREAS, promptly following the consummation of the Acquisition, the Company will cause Target to
file a certificate of merger (the “Merger Certificate”) with the Secretary of State of
Delaware and will effect the Merger.



WHEREAS, the Company wishes to sell to the Purchasers, and the Purchasers wish to purchase the
Notes (as hereinafter defined) in the aggregate original principal amount of up to $50,000,000
upon the terms and subject to the conditions hereinafter set forth; and


NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the parties hereto agree as follows:





	1.	 	DEFINITIONS
	 
	1.1	 	Definitions
	 
	 	 	As used in this Agreement, and unless the context requires a different meaning, the
following terms have the meanings indicated:
	 
	 	 	“Acquisition” shall have the meaning assigned to such term in the recitals hereto.
	 
	 	 	“Acquired Business” shall have the meaning assigned to such term in the recitals hereto.
	 
	 	 	“Acquisition Agreement” shall have the meaning assigned to such term in the recitals hereto.
	 
	 	 	“Acquisition Consideration” shall mean the purchase consideration for any Permitted
Acquisition and all other payments by Holdings or any of its Subsidiaries in exchange for,
or as part of, or in connection with, any Permitted Acquisition, whether paid in cash or by
exchange of Equity Interests or of properties or otherwise and whether payable at or prior
to the consummation of such Permitted Acquisition or deferred for payment at any future
time, whether or not any such future payment is subject to the occurrence of any
contingency, and includes any and all payments representing the purchase price and any
assumptions of Indebtedness, “earn-outs” and other agreements to make any payment the amount
of which is, or the terms of payment of which are, in any respect subject to or contingent
upon the revenues, income, cash flow or profits (or the like) of any Person or business;
provided that any such future payment that is subject to a contingency shall be considered
Acquisition Consideration only to the extent of the reserve, if any, required under GAAP at
the time of such sale to be established in respect thereof by Holdings or any of its
Subsidiaries.




-2-









 






	 	 	“Administrative Agent” shall have the meaning assigned to such term in the preamble hereto.
	 
	 	 	“Affiliate” shall mean, when used with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified; provided, however, that, for purposes of
Section 8.2(i) , the term “Affiliate” shall also include (i) any Person that
directly or indirectly owns more than 10% of any class of Equity Interests of the Person
specified or (ii) any Person that is an executive officer or director of the Person
specified.
	 
	 	 	“Agreement” shall mean this Note Purchase Agreement, including the exhibits and schedules
attached hereto, as each of the same may be amended, supplemented, restated and/or otherwise
modified from time to time.
	 
	 	 	“Anti-Terrorism Laws” shall have the meaning assigned to such term in Section 5.22.
	 
	 	 	“Approved Fund” shall mean, with respect to any Purchaser, any Person (other than a natural
Person) that (a) is or will be engaged in making, purchasing, holding or otherwise investing
in or extending commercial loans and similar extensions of credit in the ordinary course of
its business and (b) is advised or managed by (i) such Purchaser, (ii) any Affiliate of such
Purchaser or (iii) any Person (other than an a natural Person) or any Affiliate of any
Person (other than a natural Person) that administers or manages such Purchaser.
	 
	 	 	“Asset Sale” shall mean (a) any conveyance, sale, lease, sublease, assignment, transfer or
other disposition (including by way of merger or consolidation and including any Sale and
Leaseback Transaction) by Holdings or any of its Subsidiaries of any of its property
excluding sales of inventory and dispositions of cash and cash equivalents, in each case, in
the ordinary course of business, and (b) any issuance or sale of any Equity Interests of any
Subsidiary of Holdings, in each case, to any Person other than (i) the Company, (ii) any
Subsidiary Guarantor or (iii) other than for purposes of Section 8.2(f), any other
Subsidiary.
	 
	 	 	“Assignment” shall mean an assignment agreement entered into by a Purchaser, as assignor,
and any prospective assignee thereof, in substantially the form of Exhibit D.
	 
	 	 	“Attributable Indebtedness” shall mean, when used with respect to any Sale and Leaseback
Transaction, as at the time of determination, the present value (discounted at a rate
equivalent to the Company’s then-current weighted average cost of funds for borrowed money
as at the time of determination, compounded on a semi-annual basis) of the total obligations
of the lessee for rental payments during the remaining term of the lease included in any
such Sale and Leaseback Transaction.
	 
	 	 	“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy”, as
amended from time to time or any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect and all rules and regulations promulgated thereunder.




-3-









 






	 	 	“Board” shall mean the Board of Governors of the Federal Reserve System of the United
States.
	 
	 	 	“Board of Directors” shall mean, with respect to any Person, (i) in the case of any
corporation, the board of directors of such Person, (ii) in the case of any limited
liability company, the board of managers of such Person, (iii) in the case of any
partnership, the Board of Directors of the general partner of such Person and (iv) in any
other case, the functional equivalent of the foregoing.
	 
	 	 	“Business Day” shall mean any day other than a Saturday, Sunday or other day on which banks
in New York City are authorized or required by law to close.
	 
	 	 	“Capital Assets” shall mean, with respect to any Person, all equipment, fixed assets and
Real Property or improvements of such Person, or replacements or substitutions therefor or
additions thereto, that, in accordance with GAAP, have been or should be reflected as
additions to property, plant or equipment on the balance sheet of such Person.
	 
	 	 	“Capital Expenditures” shall mean, for any period, without duplication, all expenditures
made directly or indirectly by the Company and its Subsidiaries during such period for
Capital Assets plus, to the extent not included in the definition of Capital Assets,
capitalized development cost as accounted for on a balance sheet of the Company (whether
paid in cash or other consideration, financed by the incurrence of Indebtedness or accrued
as a liability), but excluding (i) expenditures made in connection with the replacement,
substitution or restoration of property pursuant to Section 2.10(f) of the Senior
Credit Agreement and (ii) any portion of such increase attributable solely to acquisitions
of Capital Assets in Permitted Acquisitions.
	 
	 	 	“Capitalization/Acquisition Documents” shall mean, collectively: (a) any or all of the stock
certificates, notes, debentures or other instruments representing Equity Interests or other
securities bought, sold or issued, or loans made, to facilitate the consummation of the
Related Transactions; (b) the indentures or other documents pursuant to which such
instruments representing Equity Interests are issued or to be issued; (c) each document
governing the issuance of, or setting forth the terms of, such instruments representing
Equity Interests; (d) any stockholders, registration, subordination or intercreditor
agreement among or between the holders of such instruments representing Equity Interests
including, without limitation, the Holdings Equityholders Agreement; (e) the Acquisition
Agreement; and (f) all other instruments, documents and agreements executed in connection
with the Acquisition, in each case, as amended, restated, modified and/or supplemented from
time to time in each case, in accordance with their respective terms; but excluding all
Transaction Documents, in each case, as amended, modified or supplemented from time to time
in each case, in accordance with their respective terms.
	 
	 	 	“Capital Lease Obligations” of any Person shall mean the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person under




-4-









 






	 	 	GAAP, and the amount of such obligations shall be the capitalized amount thereof determined
in accordance with GAAP.
	 
	 	 	“Cash Equivalents” shall mean, as to any Person, (a) securities issued, or directly,
unconditionally and fully guaranteed or insured, by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than one year from the date of
acquisition by such Person; (b) time deposits and certificates of deposit of any Lender or
any commercial bank having, or which is the principal banking subsidiary of a bank holding
company organized under the laws of the United States, any state thereof or the District of
Columbia having, capital and surplus aggregating in excess of $500.0 million and a rating of
“A” (or such other similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the Securities Act)
with maturities of not more than one year from the date of acquisition by such Person;
(c) repurchase obligations with a term of not more than 90 days for underlying securities of
the types described in clause (a) above entered into with any bank meeting the
qualifications specified in clause (b) above; (d) commercial paper issued by any Person
formed in the United States rated at least A-1 or the equivalent thereof by Standard &
Poor’s Rating Service or at least P-1 or the equivalent thereof by Moody’s Investors Service
Inc., and in each case maturing not more than one year after the date of acquisition by such
Person; (e) investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (a) through (d) above; and
(f) demand deposit accounts maintained in the ordinary course of business.
	 
	 	 	“Cash Interest Expense” shall mean, for any period, Consolidated Interest Expense for such
period, less the sum of (a) interest on any debt paid by the increase in the principal
amount of such debt including by issuance of additional debt of such kind, (b) items
described in clause (c) or, other than to the extent paid in cash, clause (g) of the
definition of “Consolidated Interest Expense” and (c) gross interest income of the Company
and its Subsidiaries for such period.
	 
	 	 	“Casualty Event” shall mean any involuntary loss of title, any involuntary loss of, damage
to or any destruction of, or any condemnation or other taking (including by any Governmental
Authority) of, any property of Holdings or any of its Subsidiaries. “Casualty Event” shall
include but not be limited to any taking of all or any part of any Real Property of any
Person or any part thereof, in or by condemnation or other eminent domain proceedings
pursuant to any Requirement of Law, or by reason of the temporary requisition of the use or
occupancy of all or any part of any Real Property of any Person or any part thereof by any
Governmental Authority, civil or military, or any settlement in lieu thereof.
	 
	 	 	“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, 42 U.S.C. § 9601 et seq. and all implementing regulations.
	 
	 	 	A “Change in Control” shall be deemed to have occurred if:




-5-









 












     (a) Holdings at any time ceases to own 100% of the Equity Interests of the Company;




     (b) at any time a change of control occurs under any documentation evidencing Material
Indebtedness;




     (c) prior to an IPO, (i) the Permitted Holders cease to own Equity Interests
representing a majority of the total economic interests of the Equity Interests of Holdings
or (ii) the Permitted Holders cease to have control of a majority of the management power
over Holdings;




     (d) (i) the Permitted Holders (collectively) shall fail to own, or to have the power to
vote or direct the voting of Holdings representing more than 35% of the voting power of
Holdings, (ii) the Permitted Holders cease to own Equity Interests representing more than
35% of the total economic interests of the Equity Interests of Holdings or (iii) any
“Person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act), other than one or more Permitted Holders, is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this
clause such Person or group shall be deemed to have “beneficial ownership” of all securities
that such Person or group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of the voting power
of Holdings representing either (w) a greater percentage of the voting power of Holdings
than that beneficially owned or controlled by the Permitted Holders, (x) a greater
percentage of the total economic interests of the Equity Interests of Holdings than that
beneficially owned by the Permitted Holders, (y) 50% or more of the voting power of Holdings
or (z) 50% or more of the total economic interests of the Equity Interests of Holdings; or




     (e) upon and following an IPO, during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors of Holdings (together
with any new directors whose election to such Board of Directors or whose nomination for
election was approved by a vote of a majority of the members of the Board of Directors of
Holdings, which members comprising such majority are then still in office and were either
directors at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the Board of
Directors of Holdings.




          For purposes of this definition, a Person shall not be deemed to have beneficial
ownership of Equity Interests subject to a stock purchase agreement, merger agreement or
similar agreement until the consummation of the transactions contemplated by such agreement.




	 	 	“Closing” shall have the meaning assigned to such term in Section 2.2.
	 
	 	 	“Closing Date” shall have the meaning given such term in Section 2.2.
	 
	 	 	“Closing Notes” shall mean the promissory notes to be purchased by the Purchasers from the
Company on the Closing Date in the original aggregate principal amount equal to the




-6-









 






	 	 	Original Issuance Amount, each of which shall be substantially in the form attached hereto
as Exhibit A and each as amended, modified, replaced, substituted or renewed from
time to time in accordance with its terms and the terms hereof.
	 
	 	 	“Code” shall mean the Internal Revenue Code of 1986.
	 
	 	 	“Collateral” shall have the meaning set forth in the Senior Documents.
	 
	 	 	“Company” shall have the meaning assigned to such term in the preamble hereto.
	 
	 	 	“Compliance Certificate” shall mean a certificate of a Financial Officer substantially in
the form of Exhibit C.
	 
	 	 	“Confidential Information Memorandum” shall mean that certain confidential information
memorandum dated as of February, 2007.
	 
	 	 	“Consolidated Amortization Expense” shall mean, for any period, the amortization expense of
Holdings and its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
	 
	 	 	“Consolidated Current Assets” shall mean, as at any date of determination, the total assets
of Holdings and its Subsidiaries which may properly be classified as current assets on a
consolidated balance sheet of Holdings and its Subsidiaries in accordance with GAAP.
	 
	 	 	“Consolidated Current Liabilities” shall mean, as at any date of determination, the total
liabilities of Holdings and its Subsidiaries which may properly be classified as current
liabilities (other than (a) the current portion of any long term debt or Capital Lease
Obligations and (b) short term debt and (c) amounts payable under The Sopris Performance
Share Plan 2004, effective as of February 1, 2004) on a consolidated balance sheet of
Holdings and its Subsidiaries in accordance with GAAP.
	 
	 	 	“Consolidated Depreciation Expense” shall mean, for any period, the depreciation expense of
Holdings and its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
	 
	 	 	“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period,
adjusted by (x) adding thereto, (i) for purposes of determining compliance with Section
8.3 only, the Cure Amount, if any, received by Holdings and contributed to the Company
in cash for such period and permitted to be included in Consolidated EBITDA pursuant to
Section 9.6 and (ii) in each case only to the extent (and in the same proportion)
deducted in determining such Consolidated Net Income and without duplication (and with
respect to the portion of Consolidated Net Income attributable to any Subsidiary of the
Company only if a corresponding amount would be permitted at the date of determination to be
distributed to the Company by such Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its Organizational Documents and all agreements,
instruments and Requirements of Law applicable to such Subsidiary or its equityholders):




-7-









 












     (a) Consolidated Interest Expense for such period,




     (b) Consolidated Amortization Expense for such period,




     (c) Consolidated Depreciation Expense for such period,




     (d) Consolidated Tax Expense for such period,




     (e) nonrecurring employee severance costs incurred for such period beginning on January
1, 2007,




     (f) Permitted Management Fees and Expenses for such period,




     (g) costs and expenses incurred in connection with the Transactions and Related
Transactions for such period,




     (h) amortization of inventory write-ups under APB 16 for such period,




     (i) any impairment of goodwill and other intangible assets occurring during such
period,




     (j) any amounts paid with respect to the termination of the Stock Option Plan during
such period,




     (k) any equity based compensation paid to officers, directors, managers, members or
employees of Holdings or any of its Subsidiaries during such period, and




     (l) the aggregate amount of all other non-cash charges reducing Consolidated Net Income
(excluding any non-cash charge that results in an accrual of a reserve for cash charges in
any future period) for such period, and




	 	 	(y) subtracting therefrom the aggregate amount of all non-cash items increasing Consolidated
Net Income (other than the accrual of revenue or recording of receivables in the ordinary
course of business), provided that, notwithstanding anything to the contrary contained
herein (including the definition of “Test Period”), Consolidated EBITDA shall be deemed to
be (i) $10,846,013 for the Fiscal Quarter ended June 30, 2006, (ii) $16,329,223 for the
Fiscal Quarter ended September 30, 2006, and (iii) $1,323,633 for the Fiscal Quarter ended
December 31, 2006.






          Consolidated EBITDA shall be calculated on a Pro Forma Basis to give effect to the
Acquisition, any Permitted Acquisition and Asset Sales (other than any dispositions in the
ordinary course of business) consummated at any time on or after the first day of the Test
Period and prior to the date of determination as if the Acquisition and each such Permitted
Acquisition had been effected on the first day of such period and as if each such Asset Sale
had been consummated on the day prior to the first day of such period. Notwithstanding
anything herein to the contrary, the Required Note-Holders shall have the sole right and
authority to approve the pro forma adjustments made to Consolidated EBITDA in connection
with any Permitted Acquisition or Asset Sale.



-8-









 






	 	 	“Consolidated Indebtedness” shall mean, as at any date of determination, the aggregate
amount of all Indebtedness of the Company and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP.






	 	 	“Consolidated Interest Expense” shall mean, for any period, the total consolidated interest
expense of the Company and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP plus, without duplication:






     (a) imputed interest on Capital Lease Obligations and Attributable Indebtedness of the
Company and its Subsidiaries for such period;




     (b) commissions, discounts and other fees and charges owed by the Company or any of its
Subsidiaries with respect to letters of credit securing financial obligations, bankers’
acceptance financing and receivables financings for such period;




     (c) amortization of debt issuance costs, debt discount or premium and other financing
fees and expenses incurred by the Company or any of its Subsidiaries for such period;




     (d) cash contributions to any employee stock ownership plan or similar trust made by
the Company or any of its Subsidiaries to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than the Company or a Wholly
Owned Subsidiary) in connection with Indebtedness incurred by such plan or trust for such
period;




     (e) all interest paid or payable with respect to discontinued operations of the Company
or any of its Subsidiaries for such period;




     (f) the interest portion of any deferred payment obligations of the Company or any of
its Subsidiaries for such period; and




     (g) all interest on any Indebtedness of the Company or any of its Subsidiaries of the
type described in clause (f) or (k) of the definition of “Indebtedness” for such period;




	 	 	provided that (a) to the extent directly related to the Transactions and the Related
Transactions, debt issuance costs, debt discount or premium and other financing fees and
expenses shall be excluded from the calculation of Consolidated Interest Expense and
(b) Consolidated Interest Expense shall be calculated after giving effect to Hedging
Agreements related to interest rates (including associated costs), but excluding unrealized
gains and losses with respect to Hedging Agreements related to interest rates.






          Consolidated Interest Expense shall be calculated on a Pro Forma Basis to give effect
to any Indebtedness incurred, assumed or permanently repaid or extinguished at any time on
or after the first day of the Test Period and prior to the date of determination in
connection with the Acquisition, any Permitted Acquisitions and Asset Sales (other than any
dispositions in the ordinary course of business) as if such



-9-









 







incurrence, assumption, repayment or extinguishing had been effected on the first day
of such period.




	 	 	“Consolidated Net Income” shall mean, for any period, the consolidated net income (or loss)
of the Company and its Subsidiaries determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded from such net income (to the extent otherwise
included therein), without duplication:






     (a) the net income (or loss) of any Person (other than a Subsidiary of the Company) in
which any Person other than the Company and its Subsidiaries has an ownership interest,
except to the extent that cash in an amount equal to any such income has actually been
received by the Company or (subject to clause (b) below) any of its Subsidiaries during such
period;




     (b) the net income of any Subsidiary of the Company during such period to the extent
that the declaration or payment of dividends or similar distributions by such Subsidiary of
that income is not permitted by operation of the terms of its Organizational Documents or
any agreement, instrument or Requirement of Law applicable to that Subsidiary during such
period, except that the Company equity in net loss of any such Subsidiary for such period
shall be included in determining Consolidated Net Income;




     (c) any gain (or loss), together with any related provisions for taxes on any such gain
(or the tax effect of any such loss), realized during such period by the Company or any of
its Subsidiaries upon any Asset Sale (other than any dispositions in the ordinary course of
business) by the Company or any of its Subsidiaries;




     (d) gains and losses due solely to fluctuations in currency values and the related tax
effects determined in accordance with GAAP for such period;




     (e) earnings and losses resulting from any reappraisal, revaluation or write-up or
write-down of assets;




     (f) unrealized gains and losses with respect to Hedging Obligations for such period;
and




     (g) any extraordinary or nonrecurring gain (or extraordinary or nonrecurring loss),
together with any related provision for taxes on any such gain (or the tax effect of any
such loss), recorded or recognized by the Company or any of its Subsidiaries during such
period.




          For purposes of this definition of “Consolidated Net Income,” (1) “nonrecurring” means
any gain or loss as of any date that is not reasonably likely to recur within the two years
following such date; provided that if there was a gain or loss similar to such gain or loss
within the two years preceding such date, such gain or loss shall not be deemed nonrecurring
and (2) Consolidated Net Income shall be reduced (to the extent not already reduced thereby)
by the amount of any payments to or on behalf of Holdings made pursuant to
Sections 8.2(h)(iii) and (iv).



-10-









 






	 	 	“Consolidated Tax Expense” shall mean, for any period, the tax expense of the Company and
its Subsidiaries, for such period, determined on a consolidated basis in accordance with
GAAP.






	 	 	“Contested Asset Lien Conditions” shall mean, with respect to any Permitted Lien of the type
described in clauses (i), (ii), (v) and (vi) of Section 8.2(b), the following
conditions:






     (a) the Company shall cause any proceeding instituted contesting such Lien on such
asset to stay the sale or forfeiture of any portion of such asset on account of such Lien;
and




     (b) at the option and at the request of the Administrative Agent or the Required
Note-Holders, to the extent such Lien is in an amount in excess of $500,000, the appropriate
Issuer Party shall maintain cash reserves in an amount sufficient to pay and discharge such
Lien and the Administrative Agent’s or Required Note-Holders’, as applicable, reasonable
estimate of all interest and penalties related thereto.




	 	 	“Contingent Obligation” shall mean, as to any Person, any obligation, agreement,
understanding or arrangement of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other
Person (the “primary obligor”) in any manner, whether directly or indirectly, including any
obligation of such Person, whether or not contingent, (a) to purchase any such primary
obligation or any property constituting direct or indirect security therefor; (b) to advance
or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor; (c) 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; (d) with
respect to bankers’ acceptances, letters of credit and similar credit arrangements, until a
reimbursement obligation arises (which reimbursement obligation shall constitute
Indebtedness); or (e) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof; provided, however, that the term “Contingent
Obligation” shall not include endorsements of instruments for deposit or collection in the
ordinary course of business or any product warranties. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made (or, if less, the
maximum amount of such primary obligation for which such Person may be liable, whether
singly or jointly, pursuant to the terms of the instrument evidencing such Contingent
Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as determined by
such Person in good faith.






	 	 	“Contract,” with respect to any Person, shall mean any agreement, contract, note, bond,
mortgage, indenture, guarantee, lease, sublease, license, sublicense or other instrument or
obligation (whether written or oral) to which such Person is a party or by which it or any
portion of its properties or assets may be bound.




-11-









 






	 	 	“Control” shall mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the ownership of
voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled”
shall have meanings correlative thereto.
	 
	 	 	“Controlled Investment Affiliate” shall mean, as to any Person, any other Person which
directly or indirectly is in Control of, is Controlled by, or is under common Control with,
such Person and is organized by such Person (or any Person Controlling such Person)
primarily for making equity or debt investments in, or management or advisory services for,
Holdings, the Company or any other portfolio companies.
	 
	 	 	“Cure Amount” shall have the meaning assigned to such term in Section 9.6.
	 
	 	 	“Cure Right” shall have the meaning assigned to such term in Section 9.6.
	 
	 	 	“Debt Issuance” shall mean the incurrence by Holdings or any of its Subsidiaries of any
Indebtedness after the Closing Date (other than as permitted by Section 8.2(a).
	 
	 	 	“Default” shall mean any event, occurrence or condition which is, or upon notice, lapse of
time or both would constitute, an Event of Default.
	 
	 	 	“Disqualified Capital Stock” shall mean any (A) MIP Unit and (B) Equity Interest which, by
its terms (or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as
the result of an optional redemption by the issuer thereof) or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to six (6) months following the Maturity
Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i) debt securities or (ii) any Equity Interests referred to in (a) above, in
each case at any time on or prior to six (6) months following the Maturity Date, or
(c) contains any repurchase obligation which may come into effect prior to payment in full
of all Obligations.
	 
	 	 	“Dividend” with respect to any Person shall mean that such Person has declared or paid a
dividend or returned any equity capital to the holders of its Equity Interests or authorized
or made any other distribution, payment or delivery of property (other than Qualified
Capital Stock of such Person) or cash to the holders of its Equity Interests as such, or
redeemed, retired, purchased or otherwise acquired, directly or indirectly, for
consideration any of its Equity Interests outstanding (or any options or warrants issued by
such Person with respect to its Equity Interests), or set aside any funds for any of the
foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise
acquire for consideration any of the Equity Interests of such Person outstanding (or any
options or warrants issued by such Person with respect to its Equity Interests). Without
limiting the foregoing, “Dividends” with respect to any Person shall also include all
payments made or required to be made by such Person with respect to any stock appreciation
rights, plans, equity incentive or achievement plans or any similar plans or setting aside
of any funds for the foregoing purposes.




-12-









 






	 	 	“Dollars” and the sign “$” shall each mean the lawful money of the United States of America.
	 
	 	 	“Domestic Subsidiary” shall mean each direct or indirect Subsidiary of an Issuer Party which
is organized under the laws of the United States or any state or territory thereof.
	 
	 	 	“Embargoed Person” shall have the meaning assigned to such term in Section 8.2(s).
	 
	 	 	“Environment” shall mean ambient air, indoor air, surface water and groundwater (including
potable water, navigable water and wetlands), the land surface or subsurface strata, natural
resources, the workplace or as otherwise defined in any Environmental Law.
	 
	 	 	“Environmental Claim” shall mean any claim, notice, demand, order, action, suit, proceeding
or other communication alleging liability for or obligation with respect to any
investigation, remediation, removal, cleanup, response, corrective action, damages to
natural resources, personal injury, property damage, fines, penalties or other costs
resulting from, related to or arising out of (i) the presence, Release or threatened Release
in or into the Environment of Hazardous Material at any location or (ii) any violation or
alleged violation of any Environmental Law, and shall include any claim seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief resulting
from, related to or arising out of the presence, Release or threatened Release of Hazardous
Material or alleged injury or threat of injury to health, safety or the Environment.
	 
	 	 	“Environmental Law” shall mean any and all present and future treaties, laws, statutes,
ordinances, regulations, rules, decrees, orders, judgments, consent orders, consent decrees,
code or other binding requirements, and the common law, but only to the extent any of the
foregoing is legally binding upon the Company and its Subsidiaries, relating to protection
of public health or the Environment, the Release or threatened Release of Hazardous
Material, natural resources or natural resource damages, or occupational safety or health,
and any and all Environmental Permits.
	 
	 	 	“Environmental Permit” shall mean any permit, license, approval, registration, notification,
exemption, consent or other authorization required by or from a Governmental Authority under
Environmental Law.
	 
	 	 	“Equity Financing” shall mean the cash equity investment in Holdings by the Equity Investors
as the same is further invested in cash equity in the Company on or prior to the Closing
Date, in an amount not less than $140.0 million on terms and conditions satisfactory to the
Required Note-Holders (which amount shall include the amount of the purchase price for
capital stock of Target which any Seller received in Equity Interests of Holdings in lieu of
cash in connection with the Acquisition in an amount not to exceed $10.0 million).
	 
	 	 	“Equity Interest” shall mean, with respect to any Person, any and all shares, interests,
participations or other equivalents, including membership interests (however designated,
whether voting or nonvoting), of equity of such Person, including, if such Person is a




-13-









 






	 	 	partnership, partnership interests (whether general or limited) and any other interest or
participation that confers on a Person the right to receive a share of the profits and
losses of, or distributions of property of, such partnership, whether outstanding on the
date hereof or issued after the Closing Date, but excluding debt securities convertible or
exchangeable into such equity.
	 
	 	 	“Equity Investors” shall mean Sponsor, its Controlled Investment Affiliates (other than
Holdings and its Subsidiaries), officers of Holdings and its Subsidiaries and one or more
investors satisfactory to the Sponsor.
	 
	 	 	“Equity Issuance” shall mean, without duplication, (i) any issuance or sale by Holdings
after the Closing Date of any Equity Interests in Holdings (including any Equity Interests
issued upon exercise of any warrant or option) or any warrants or options to purchase Equity
Interests or (ii) any contribution to the capital of Holdings; provided, however, that an
Equity Issuance shall not include (x) any such sale or issuance by Holdings of its Equity
Interests (including its Equity Interests issued upon exercise of any warrant or option or
warrants or options to purchase its Equity Interests but excluding Disqualified Capital
Stock), in each case, to officers or employees of any Company pursuant to (A) an employee
stock plan and (B) any other sale or issuance approved by the Board of Directors of Holdings
in an amount not to exceed $1.0 million, (y) any Permitted Cure Securities and (z) any such
issuance or sale to the Equity Investors (including, without limitation, any Excluded
Issuance).
	 
	 	 	“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.
	 
	 	 	“ERISA Affiliate” shall mean, with respect to any Person, any trade or business (whether or
not incorporated) that, together with such Person, is treated as a single employer under
Section 414 of the Code.
	 
	 	 	“ERISA Event” shall mean (a) any “reportable event,” as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event for which the
30-day notice period is waived by regulation); (b) the existence with respect to any Plan of
an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the failure to make by its due date a required
installment under Section 412(m) of the Code with respect to any Plan or the failure to make
any required contribution to a Multiemployer Plan; (d) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (e) the incurrence by any Issuer Party or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of
any Plan; (f) the receipt by any Issuer Party or any of its ERISA Affiliates from the PBGC
or a plan administrator of any notice relating to the intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan, or the occurrence of any event or
condition which could reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Plan; (g) the incurrence
by any Issuer Party or any of its ERISA Affiliates of any liability with respect to the
withdrawal from any Plan or




-14-









 






	 	 	Multiemployer Plan; (h) the receipt by any Issuer Party or its ERISA Affiliates of any
notice, concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA; (i) the “substantial cessation of operations” within the
meaning of Section 4062(e) of ERISA with respect to a Plan; (j) the making of any amendment
to any Plan which could result in the imposition of a lien or the posting of a bond or other
security; and (k) the occurrence of a nonexempt prohibited transaction (within the meaning
of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to
result in liability to any Issuer Party.
	 
	 	 	“Event of Default” shall have the meaning assigned to such term in Section 9.1.
	 
	 	 	“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
	 
	 	 	“Excluded Issuance” shall mean an issuance and sale of Qualified Capital Stock of Holdings
to the Equity Investors, to the extent such Qualified Capital Stock is used, or the Net Cash
Proceeds thereof shall be, within 90 days of the consummation of such issuance and sale,
used, without duplication, to finance Capital Expenditures or one or more Permitted
Acquisitions.
	 
	 	 	“Executive Order” shall have the meaning assigned to such term in Section 5.22.
	 
	 	 	“Existing Lien” shall have the meaning assigned to such term in Section 8.2(b)(iii).
	 
	 	 	“Extraordinary Event” shall mean any purchase price adjustment, indemnity payment or pension
plan revision. For the avoidance of doubt, “Extraordinary Event” shall not include a
Casualty Event.
	 
	 	 	“Financial Covenants” shall mean the covenants set forth in Section 8.3.
	 
	 	 	“Financial Officer” of any Person shall mean the chief financial officer of such Person.
	 
	 	 	“Fiscal Quarter” shall mean each 3 fiscal month period ending on March 31, June 30,
September 30 or December 31 of each year.
	 
	 	 	“Fiscal Year” shall mean, with respect to the Issuer Parties, the twelve (12) month
accounting period of the Issuer Parties commencing January 1 of each calendar year and
ending December 31 of such calendar year.
	 
	 	 	“Foreign Purchaser” shall mean a Purchaser who is not a “United States Person” within the
meaning of Section 7701(a)(30) of the Code.
	 
	 	 	“Foreign Subsidiary” shall mean a Subsidiary that is organized under the laws of a
jurisdiction other than the United States or any state or territory thereof.
	 
	 	 	“GAAP” shall mean generally accepted accounting principles in the United States applied on a
consistent basis.




-15-









 






	 	 	“GCO” shall have the meaning assigned to such term in the preamble hereto.
	 
	 	 	“GCSFF” shall have the meaning assigned to such term in the preamble hereto.
	 
	 	 	“Governmental Authority” shall mean the government of the United States or any other nation,
or of any political subdivision thereof, whether state, provincial or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government (including any supra-national bodies such as the European
Union or the European Central Bank).
	 
	 	 	“Governmental Real Property Disclosure Requirements” shall mean any Requirement of Law of
any Governmental Authority requiring notification of the buyer, lessee, mortgagee, assignee
or other transferee of any Real Property, facility, establishment or business, or
notification, registration or filing to or with any Governmental Authority, in connection
with the sale, lease, mortgage, assignment or other transfer (including any transfer of
control) of any Real Property, facility, establishment or business, of the actual or
threatened presence or Release in or into the Environment, or the use, disposal or handling
of Hazardous Material on, at, under or near the Real Property, facility, establishment or
business to be sold, leased, mortgaged, assigned or transferred.
	 
	 	 	“Guarantor” shall mean Holdings, each Subsidiary Guarantor and each other Person that enters
into any Guaranty Obligations with respect to any Obligation.
	 
	 	 	“Guaranty” shall mean the Guaranty substantially in the form of Exhibit B, made by
each Guarantor from time to time party thereto in favor of Administrative Agent.
	 
	 	 	“Guaranty Obligations” shall mean any obligation, contingent or otherwise, of or by any
Person (the “guarantor”) guarantying or having the economic effect of guarantying any
Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guaranty Obligations shall not include endorsements for
collection or deposit in the ordinary course of business.
	 
	 	 	“Hazardous Materials” shall mean the following: hazardous substances; hazardous wastes;
polychlorinated biphenyls (“PCBs”) or any substance or compound containing PCBs; asbestos or
any asbestos-containing materials in any form or condition; radon or any other radioactive
materials including any source, special nuclear or by-product




-16-









 






	 	 	material; petroleum, crude oil or any fraction thereof; and any other pollutant or
contaminant or chemicals, wastes, materials, compounds, constituents or substances, subject
to regulation or which can give rise to liability under any Environmental Laws.
	 
	 	 	“Hedging Agreement” shall mean any swap, cap, collar, forward purchase or similar agreements
or arrangements dealing with interest rates, currency exchange rates or commodity prices,
either generally or under specific contingencies.
	 
	 	 	“Hedging Obligations” shall mean obligations under or with respect to Hedging Agreements.
	 
	 	 	“Holdings” shall have the meaning assigned to such term in the preamble hereto and shall
include any successors and assigns in accordance with Section 8.2(t). Holdings
shall not include any entity that has been released from its obligations under this
Agreement in accordance with Section 8.2(t).
	 
	 	 	“Holdings Equityholders Agreement” shall mean the Amended and Restated Limited Liability
Company Agreement of Holdings by and among the Persons named therein, as amended, modified
or supplemented from time to time in accordance with the terms hereof and thereof.
	 
	 	 	“Indebtedness” of any Person shall mean, without duplication, (a) all obligations of such
Person for borrowed money or advances; (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments; (c) all obligations of such Person upon
which interest charges are customarily paid or accrued; (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property purchased by
such Person; (e) all obligations of such Person issued or assumed as the deferred purchase
price of property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business on normal trade terms and not overdue by more
than 120 days); (f) all Indebtedness of others secured by any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have been assumed,
but limited to the fair market value of such property; (g) all Capital Lease Obligations,
Purchase Money Obligations and synthetic lease obligations of such Person; (h) for purposes
of Section 8.2(a), all Hedging Obligations to the extent required to be reflected on
a balance sheet of such Person; (i) all Attributable Indebtedness of such Person; (j) all
obligations of such Person for the reimbursement of any obligor in respect of letters of
credit, letters of guaranty, bankers’ acceptances and similar credit transactions; and
(k) all Contingent Obligations of such Person in respect of Indebtedness or obligations of
others of the kinds referred to in clauses (a) through (j) above. 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
(other than in the case of general partner liability) to the extent that terms of such
Indebtedness expressly provide that such Person is not liable therefor. Notwithstanding the
foregoing, Indebtedness shall not mean any operating lease rental expense to the extent that
such rental expense is required to be recognized as a




-17-









 






	 	 	deferred liability on any Person’s balance sheet in accordance with Statement of Financial
Accounting Standard No. 13.
	 
	 	 	“Indemnified Party” shall have the meaning assigned to such term in Section 7.1.
	 
	 	 	“Insurance Policies” shall mean the insurance policies and coverages required to be
maintained by each Issuer Party which is an owner of Mortgaged Property with respect to the
applicable Mortgaged Property pursuant to Section 8.1(d) and all renewals and
extensions thereof.
	 
	 	 	“Insurance Requirements” shall mean, collectively, all provisions of the Insurance Policies,
all requirements of the issuer of any of the Insurance Policies and all orders, rules,
regulations and any other requirements of the National Board of Fire Underwriters (or any
other body exercising similar functions) binding upon each Issuer Party which is an owner of
Mortgaged Property and applicable to the Mortgaged Property or any use or condition thereof.
	 
	 	 	“Intellectual Property” shall have the meaning assigned to such term in
Section 8.1(c)(i).
	 
	 	 	“Investments” shall have the meaning assigned to such term in Section 8.2(d).
	 
	 	 	“IPO” shall mean the first underwritten public offering by Holdings of its Equity Interests
after the Closing Date pursuant to a registration statement filed with the SEC in accordance
with the Securities Act with gross proceeds of at least $25,000,000.
	 
	 	 	“Issuer Party” shall mean Holdings, the Company and each Subsidiary of Holdings and the
Company.
	 
	 	 	“Joinder Agreement” shall mean a joinder agreement substantially in the form of
Exhibit F.
	 
	 	 	“Leases” shall mean any and all leases, subleases, tenancies, options, concession
agreements, rental agreements, occupancy agreements, franchise agreements, access agreements
and any other agreements (including all amendments, extensions, replacements, renewals,
modifications and/or guarantees thereof), whether or not of record and whether now in
existence or hereafter entered into, affecting the use or occupancy of all or any portion of
any Real Property.
	 
	 	 	“Liabilities” shall have the meaning assigned to such term in Section 7.1.
	 
	 	 	“Lien” shall mean, with respect to any property, (a) any mortgage, deed of trust, lien,
pledge, encumbrance, claim, charge, assignment, hypothecation, security interest or
encumbrance of any kind or any arrangement to provide priority or preference or any filing
of any financing statement under the UCC or any other similar notice of lien under any
similar notice or recording statute of any Governmental Authority, including any easement,
right-of-way or other encumbrance on title to Real Property, in each of the foregoing cases
whether voluntary or imposed by law, and any agreement to give any of




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	 	 	the foregoing; (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to such property;
and (c) in the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.
	 
	 	 	“MAC” shall have the meaning assigned to such term in the preamble hereto.
	 
	 	 	“Management Services Agreement” shall mean Amended and Restated Limited Liability Company
Agreement of Holdings.
	 
	 	 	“Margin Stock” shall have the meaning assigned to such term in Regulation U.
	 
	 	 	“Material Adverse Effect” shall mean (a) a material adverse effect on the business,
property, results of operations or condition, financial or otherwise, of any Issuer Party,
taken as a whole; (b) material impairment of the ability of the Issuer Parties to fully and
timely perform any of their obligations under any Transaction Document; or (c) material
impairment of the rights of or benefits or remedies available to the Purchasers or the
Administrative Agent under any Transaction Document.
	 
	 	 	“Material Contracts” shall mean the following Contracts to which the Holdings or any of its
Subsidiaries is a party to as of the date hereof, which Contracts are listed on Schedule
5.9:






     (a) any Contract relating to or evidencing Indebtedness of Holdings or any of its
Subsidiaries, including mortgages, other grants of security interests, guarantees or notes;




     (b) any Contract providing for the payment of royalties by Holdings or any of its
Subsidiaries;




     (c) any Contract pursuant to which Holdings or any of its Subsidiaries has provided
funds to or made any loan, capital contribution or other investment in, or assumed any
liability or obligation of, any Person;




     (d) any Contract with any Governmental Authority;




     (e) any Contract with an Affiliate of Holdings or any of its Subsidiaries;




     (f) any employment, consulting or management Contract that provides for annual
compensation in excess of $100,000;




     (g) any Contract that limits, or purports to limit, the ability of Holdings or any of
its Subsidiaries to compete in any line of business or with any Person or in any geographic
area or during any period of time, or that restricts the right of Holdings or any of its
Subsidiaries to sell to or purchase from any Person or to hire any Person, or that grants
the other party or any third Person “most favored nation” status or any type of special
discount rights;



-19-









 






     (h) any Contract with any labor union or providing for benefits under any Plan;




     (i) any development agreements relating to the development of product content, design
or layout of significant components of programs and files;




     (j) any agreements relating to the acquisition or disposition of businesses;




     (k) any Contracts involving any joint venture, partnership, strategic alliance,
shareholders’ agreement, co-marketing, co-promotion, co-packaging, joint development or
similar arrangement;




     (l) any Contracts (or series of related Contracts) relating to capital expenditures in
excess of $250,000;




     (m) any material licenses by which Holdings or any of its Subsidiaries has obtained
rights under any Intellectual Property that is utilized in its business other than (A)
licenses for standard, off-the-shelf software and (B) agreements in which the license is
incidental to the agreement;




     (n) any Contracts (or series of related Contracts) requiring or that have resulted in
payments in excess of $350,000 in the aggregate over the term of the Contract (or series of
related Contracts, as the case may be) that cannot be canceled without penalty or further
payment; and




     (o) any Contract pursuant to which Holdings or any of its Subsidiaries is the
beneficiary of any non-competition provision that remains in effect on the date hereof.




	 	 	“Material Indebtedness” shall mean (a) Indebtedness under the Senior Documents and (b) any
other Indebtedness (other than the Notes) or Hedging Obligations of Holdings or any of its
Subsidiaries in an aggregate outstanding principal amount exceeding $2.5 million. For
purposes of determining Material Indebtedness, the “principal amount” in respect of any
Hedging Obligations of any Issuer Party at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that such Issuer Party would be required to pay if
the related Hedging Agreement were terminated at such time.
	 
	 	 	“Maturity Date” shall mean April 11, 2014.
	 
	 	 	“Merger” shall have the meaning assigned to such term in the second recital hereto.
	 
	 	 	“Merger Certificate” shall have the meaning assigned to such term in the recitals hereto.
	 
	 	 	“MIP” shall mean VSS-Cambium Management LLC, a Delaware limited liability company.
	 
	 	 	“MIP Units” shall mean the Equity Interests of MIP.




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	 	 	“Mortgage” shall mean an agreement, including, but not limited to, a mortgage, deed of trust
or any other document, creating and evidencing a Lien in favor of the Senior Agent on a
Mortgaged Property, with such schedules and including such provisions as shall be necessary
to conform such document to applicable local or foreign law or as shall be customary under
applicable local or foreign law.
	 
	 	 	“Mortgaged Property” shall mean each Real Property identified as a Mortgaged Property on
Schedule 1 to this Agreement.
	 
	 	 	“Multiemployer Plan” shall mean a multiemployer plan within the meaning of
Section 4001(a)(3) or Section 3(37) of ERISA (a) to which any Issuer Party or any ERISA
Affiliate is then making or accruing an obligation to make contributions; (b) to which any
Issuer Party or any ERISA Affiliate has within the preceding five plan years made
contributions; or (c) with respect to which any Issuer Party could incur liability.
	 
	 	 	“Net Cash Proceeds” shall mean:






     (a) with respect to any Asset Sale (other than any issuance or sale of Equity
Interests), the cash proceeds received by Holdings or any of its Subsidiaries (including
cash proceeds subsequently received (as and when received by Holdings or any of its
Subsidiaries) in respect of non-cash consideration initially received) net of (i) selling
expenses (including reasonable brokers’ fees or commissions, legal, accounting and other
professional and transactional fees, transfer and similar taxes and the Company’s good faith
estimate of income taxes paid or payable in connection with such sale); (ii) amounts
provided as a reserve, in accordance with GAAP, against (x) any liabilities under any
indemnification obligations associated with such Asset Sale or (y) any other liabilities
retained by Holdings or any of its Subsidiaries associated with the properties sold in such
Asset Sale (provided that, to the extent and at the time any such amounts are released from
such reserve, such amounts shall constitute Net Cash Proceeds); (iii) the Company’s good
faith estimate of payments required to be made with respect to unassumed liabilities
relating to the properties sold within 360 days of such Asset Sale (provided that, to the
extent such cash proceeds are not used to make payments in respect of such unassumed
liabilities within 360 days of such Asset Sale, such cash proceeds shall constitute Net Cash
Proceeds); and (iv) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness or borrowed money which is secured by a Lien on the properties
sold in such Asset Sale (so long as such Lien was permitted to encumber such properties
under the Transaction Documents at the time of such sale) and which is repaid with such
proceeds (other than any such Indebtedness assumed by the purchaser of such properties);




     (b) with respect to any Debt Issuance, any Equity Issuance or any other issuance or
sale of Equity Interests by Holdings or any of its Subsidiaries, the cash proceeds thereof,
net of customary fees, commissions, costs and other expenses incurred in connection
therewith;




     (c) with respect to any Casualty Event, the cash insurance proceeds, condemnation
awards and other compensation received in respect thereof, net of all



-21-









 







Taxes and reasonable costs and expenses incurred in connection with the collection of
such proceeds, awards or other compensation in respect of such Casualty Event; and




     (d) with respect to any Extraordinary Event, the cash proceeds or other compensation
received in respect thereof, net of all reasonable costs and expenses incurred in connection
with the collection of such proceeds, awards or other compensation in respect of such
Extraordinary Event.




	 	 	“Notes” shall mean, collectively, (i) the Closing Notes and (ii) the PIK Notes.
	 
	 	 	“Notice of Intent to Cure” shall have the meaning assigned to such term in Section
8.1(s)(xii).
	 
	 	 	“NY Mezzanine” shall have the meaning assigned to such term in the preamble hereto.
	 
	 	 	“NY Parallel” shall have the meaning assigned to such term in the preamble hereto.
	 
	 	 	“Obligations” shall mean the obligations, liabilities and indebtedness of the Issuer Parties
under the Transaction Documents including, without limitation, (a) the obligation to pay
principal (including, without limitation, any PIK Amount that has been added to the
principal), interest (including, without limitation, interest accrued after the commencement
of a proceeding under the Bankruptcy Code in which any Issuer Party is a debtor, whether or
not a claim in respect of such interest is an allowed claim in such proceeding), charges,
expenses, fees, attorneys’ fees and disbursements, indemnities and any other amounts payable
by any Issuer Party under any Transaction Document and (b) the obligation of any Issuer
Party to reimburse any amount in respect of any of the foregoing that the Administrative
Agent and/or the Purchasers, in accordance with the provisions of any Transaction Document,
may elect to pay or advance on behalf of any Issuer Party.
	 
	 	 	“Observer” shall have the meaning assigned to such term in Section 8.1(o)(i).
	 
	 	 	“OFAC” shall have the meaning assigned to such term in Section 3.22.
	 
	 	 	“Officer’s Certificate” shall mean a certificate executed by the chief executive officer or
the president or one of the Financial Officers, each in his or her official (and not
individual) capacity.
	 
	 	 	“Organizational Documents” shall mean, with respect to any Person, (i) in the case of any
corporation, the certificate of incorporation and by-laws (or similar documents) of such
Person, (ii) in the case of any limited liability company, the certificate of formation and
operating agreement (or similar documents) of such Person, (iii) in the case of any limited
partnership, the certificate of formation and limited partnership agreement (or similar
documents) of such Person, (iv) in the case of any general partnership, the partnership
agreement (or similar document) of such Person and (v) in any other case, the functional
equivalent of the foregoing.
	 
	 	 	“Original Issuance Amount” shall mean Fifty Million Dollars ($50,000,000).




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	 	 	“Other Taxes” shall have the meaning assigned to such term in Section 2.6(b).
	 
	 	 	“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
	 
	 	 	“Permitted Acquisition” shall mean any transaction for the (a) acquisition of all or
substantially all of the property of any Person, or of any business or division of any
Person; or (b) acquisition (including by merger or consolidation) of the Equity Interests of
any Person that becomes a Subsidiary after giving effect such transaction; provided that
each of the following conditions shall be met:






     (a) no Default then exists or would result therefrom;




     (b) no Issuer Party shall, in connection with any such transaction, assume or remain
liable with respect to any Indebtedness or other liability (including any material tax or
ERISA liability) of the related seller or the business, Person or properties acquired,
except (A) to the extent permitted under Section 8.2(a) and (B) obligations not
constituting Indebtedness incurred in the ordinary course of business and necessary or
desirable to the continued operation of the underlying properties, and any other such
liabilities or obligations not permitted to be assumed or otherwise supported by any Issuer
Party hereunder shall be reflected as a reduction in the purchase price paid in full or
released as to the business, Persons or properties being so acquired on or before the
consummation of such acquisition;




     (c) the Person or business to be acquired shall be, or shall be engaged in, a business
of the type that the Company and its Subsidiaries are permitted to be engaged in under
Section 8.2(n);




     (d) all transactions in connection therewith shall be consummated in accordance with
all applicable Requirements of Law;




     (e) with respect to any transaction involving Acquisition Consideration of more than
$20.0 million, unless the Required Note-Holders shall otherwise agree, the Company shall
have provided the Administrative Agent and the Purchasers with (A) historical financial
statements for the last three Fiscal Years (or, if less, the number of years since
formation) of the Person or business to be acquired (audited if available) and unaudited
financial statements thereof for the most recent interim period which are available,
(B) reasonably detailed projections for the succeeding five years pertaining to the Person
or business to be acquired and updated projections for the Company after giving effect to
such transaction, (C) a reasonably detailed description of all material information relating
thereto and copies of all material documentation pertaining to such transaction, and (D) all
such other information and data relating to such transaction or the Person or business to be
acquired as may be reasonably requested by the Administrative Agent or the Required
Note-Holders;




     (f) the Acquisition Consideration (exclusive of any amounts financed by Excluded
Issuances) for such acquisition shall not exceed $75.0 million, and the aggregate amount of
the Acquisition Consideration (exclusive of any amounts financed



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by Excluded Issuances) for all Permitted Acquisitions since the Closing Date shall not
exceed $125.0 million; provided that any Equity Interests constituting all or a portion of
such Acquisition Consideration shall not have a cash dividend requirement on or prior to the
Maturity Date; and




     (g) at least 10 Business Days prior to the proposed date of consummation of the
transaction, the Company shall have delivered to the Administrative Agent and the Purchasers
an Officer’s Certificate certifying that (A) such transaction complies with this definition
(which shall have attached thereto reasonably detailed backup data and calculations showing
such compliance), and (B) such transaction could not reasonably be expected to result in a
Material Adverse Effect.




	 	 	“Permitted Collateral Liens” means (a) in the case of Collateral other than Mortgaged
Property, the Permitted Liens and (b) in the case of Mortgaged Property, “Permitted
Collateral Liens” shall mean the Liens described in clauses (i), (ii), (iii), (iv), (v),
(vii), (ix), (xi) and (xii) of Section 8.2(b).
	 
	 	 	“Permitted Cure Securities” means Equity Interests (if other than cash common equity
interest on terms and conditions reasonably acceptable to the Required Note-Holders) of
Holdings designated as Permitted Cure Securities in an Officer’s Certificate delivered by
the Company to the Administrative Agent that are (i) issued to the Permitted Holders or
their Controlled Investment Affiliates or (ii) issued to the then-current holders of Equity
Interests in Holdings pursuant to an offer to purchase such Equity Interests made to all
such holders, in each case in connection with Cure Rights being exercised by the Company
under Section 9.6 (the net proceeds of which are contributed in cash to the common
equity of the Company).
	 
	 	 	“Permitted Holders” shall mean (a) Sponsor and (b) its Controlled Investment Affiliates;
provided, however, that, for purposes of the definition of “Change of Control”, the term
“Permitted Holders” shall also include (i) TCW/Crescent Mezzanine Partners IV, L.P., (ii)
TCW/Crescent Mezzanine Partners IVB, L.P., (iii) MAC Capital, Ltd., (iv) New York Life
Investment Management Mezzanine Partners II, LP, (v) NYLIM Mezzanine Partners II Parallel
Fund, LP, (vi) GoldenTree Capital Solutions Fund Financing, (vii) GoldenTree Capital
Opportunities, LP and (viii) each of the Persons (other than natural persons) party to the
Management Services Agreement as of the Closing Date and such other Persons (other than
natural persons) contemplated on the Closing Date to become party thereto within 30 days
after the Closing Date, and their respective Controlled Investment Affiliates.
	 
	 	 	“Permitted Liens” shall have the meaning assigned to such term in Section 8.2(b).
	 
	 	 	“Permitted Management Fees and Expenses” shall mean such fees and expenses permitted under
Section 8.2.(i)(v).
	 
	 	 	“Permitted Tax Distributions” shall mean payments, dividends or distributions by the Company
to Holdings or the direct parent in order to pay consolidated or combined federal, state or
local taxes not payable directly by the Company or any of its Subsidiaries




-24-









 






	 	 	which payments by the Company to Holdings or its direct parent are not in excess of the tax
liabilities that would have been payable by Holdings, the Company and their Subsidiaries on
a stand-alone basis.
	 
	 	 	“Person” shall mean natural persons, corporations, limited liability companies, limited
partnerships, limited liability partnerships, general partnerships, joint stock company,
joint ventures, associations, trusts, banks, trust company, land trusts, business trusts or
other organizations, whether or not legal entities, and Governmental Authorities and their
respective permitted successors and assigns (or in the case of a Governmental Authority, the
successor functional equivalent of such Person).
	 
	 	 	“PIK Amount” shall have the meaning assigned to such term in the Closing Notes.
	 
	 	 	“PIK Notes” shall mean the promissory notes to be issued by the Company at the end of each
Fiscal Year in the original aggregate principal amount equal the PIK Amount which has
accrued during such Fiscal Year, each of which shall be substantially in the form attached
hereto as Exhibit G and each as amended, modified, replaced, substituted or renewed
from time to time in accordance with its terms.
	 
	 	 	“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA which is maintained or contributed to by any Issuer Party or its ERISA Affiliate or
with respect to which any Issuer Party could incur liability (including under Section 4069
of ERISA).
	 
	 	 	“Premises” shall have the meaning assigned thereto in the applicable Mortgage.
	 
	 	 	“Pro Forma Basis” shall mean on a basis in accordance with GAAP or otherwise reasonably
satisfactory to the Required Note-Holders.
	 
	 	 	“Property Material Adverse Effect” shall have the meaning assigned thereto in any Mortgage.
	 
	 	 	“Purchase Money Obligation” shall mean, for any Person, the obligations of such Person in
respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of
financing all or any part of the purchase price of any property (including Equity Interests
of any Person) or the cost of installation, construction or improvement of any property and
any refinancing thereof; provided, however, that (i) such Indebtedness is incurred within
one year after such acquisition, installation, construction or improvement of such property
by such Person and (ii) the amount of such Indebtedness does not exceed 100% of the cost of
such acquisition, installation, construction or improvement, as the case may be.
	 
	 	 	“Purchaser” and “Purchasers” shall have the meanings assigned to such terms in the preamble
hereto.
	 
	 	 	“Qualified Capital Stock” of any Person shall mean any Equity Interests of such Person that
are not Disqualified Capital Stock.




-25-









 






	 	 	“Real Property” shall mean, collectively, all right, title and interest (including any
leasehold, mineral or other estate) in and to any and all parcels of or interests in real
property owned, leased or operated by any Person, whether by lease, license or other means,
together with, in each case, all easements, hereditaments and appurtenances relating
thereto, all improvements and appurtenant fixtures and equipment, all general intangibles
and contract rights and other property and rights incidental to the ownership, lease or
operation thereof.
	 
	 	 	“Refinancing” shall mean the repayment in full and the termination of any commitment to make
extensions of credit under all of the outstanding indebtedness of Holdings or any of its
Subsidiaries listed on Schedule 2.
	 
	 	 	“Register” shall have the meaning assigned to such term in Section 12.14.
	 
	 	 	“Regulation D” shall mean Regulation D of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
	 
	 	 	“Regulation T” shall mean Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
	 
	 	 	“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
	 
	 	 	“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
	 
	 	 	“Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing,
emanating or migrating of any Hazardous Material in, into, onto or through the Environment.
	 
	 	 	“Related Person” shall mean, with respect to any Person, each Affiliate of such Person and
each director, officer, employee, agent, trustee, representative, attorney, accountant and
each insurance, environmental, legal, financial and other advisor (including those retained
in connection with the satisfaction of any conditions set forth in Section 3) and
other consultants and agents of or to such Person or any of its Affiliates, together with,
if such Person is the Administrative Agent, each other Person or individual designated,
nominated or otherwise mandated by or helping the Administrative Agent pursuant to and in
accordance with Section 11.2 or any comparable provision of any Transaction
Document.
	 
	 	 	“Related Transactions” shall mean the Acquisition, the execution and delivery of the Related
Transactions Documents, the funding of the purchase price under the Acquisition Agreement
and the payment of all fees, costs and expenses associated with all of the foregoing.
	 
	 	 	“Related Transactions Documents” shall mean the Capitalization/Acquisition Documents and all
other agreements, instruments and documents executed or delivered in




-26-









 






	 	 	connection with the Related Transactions including, without limitation, the Senior
Documents.
	 
	 	 	“Required Note-Holders” shall mean holders of a majority in outstanding principal amount of
the Notes (exclusive of Notes then owned by any Issuer Party or any of its Affiliates).
	 
	 	 	“Requirements of Law” shall mean, collectively, any and all requirements of any Governmental
Authority including any and all laws, judgments, orders, decrees, ordinances, rules,
regulations, statutes or case law.
	 
	 	 	“Response” shall mean (a) ”response” as such term is defined in CERCLA, 42 U.S.C.
§ 9601(24), and (b) all other actions required by any Governmental Authority or voluntarily
undertaken pursuant to a written agreement to (i) clean up, remove, treat, abate or in any
other way address any Hazardous Material in the Environment; (ii) prevent the Release or
threat of Release, or minimize the further Release, of any Hazardous Material; or
(iii) perform studies and investigations in connection with, or as a precondition to, or to
determine the necessity of the activities described in, clause (i) or (ii) above.
	 
	 	 	“Responsible Officer” of any Person shall mean any executive officer or Financial Officer of
such Person and any other officer or similar official thereof with responsibility for the
administration of the obligations of such Person in respect of this Agreement.
	 
	 	 	“Sale and Leaseback Transaction” has the meaning assigned to such term in Section
8.2(c).
	 
	 	 	“SEC” shall mean the Securities and Exchange Commission or any similar agency then having
jurisdiction to enforce the Securities Act.
	 
	 	 	“Securities Act” shall mean the Securities Act of 1933, as amended.
	 
	 	 	“Sellers” shall have the meaning assigned to such term in the recitals hereto.
	 
	 	 	“Senior Agent” shall mean the Person designated as “Administrative Agent” (together with any
duly appointed successor) for the Senior Lenders in the Senior Credit Agreement.
	 
	 	 	“Senior Credit Agreement” shall mean the Credit Agreement among the Company, the Senior
Agent and the financial institutions named therein or which become a party thereto, in form
and substance satisfactory to the Required Note-Holders, as the same may be amended,
restated, modified, supplemented, extended, renewed, refinanced or otherwise modified from
time to time in accordance with the terms of this Agreement.
	 
	 	 	“Senior Debt” shall mean (i) a $128,000,000 term loan facility and (ii) a $30,000,000
revolving credit facility incurred under the Senior Credit Agreement, as such amounts may be
increased in accordance with Section 8.2(a)(iii).




-27-









 






	 	 	“Senior Documents” shall mean “Loan Documents” as defined in the Senior Credit Agreement, as
the same may be amended, restated, modified, supplemented, extended, renewed, refinanced or
otherwise modified from time to time in accordance with the terms of this Agreement.
	 
	 	 	“Senior Lenders” shall mean each Person that is or shall become a lender under the Senior
Credit Agreement for so long as such Person shall be a party to the Senior Credit Agreement.
	 
	 	 	“Sponsor” shall mean VSS Communications Partners IV, L.P.
	 
	 	 	“Stock Option Plan” shall mean the Sopris Performance Share Plan 2004.
	 
	 	 	“Subordinated Indebtedness” shall mean Indebtedness of the Company or any Guarantor that is
by its terms or pursuant to a Subordination Agreement subordinated in right of payment to
the Obligations of the Company and such Guarantor, as applicable.
	 
	 	 	“Subordination Agreement” shall mean a subordination agreement to be entered into by the
Administrative Agent, the Issuer Parties and any holder of Subordinated Indebtedness, as
such agreement may be amended, restated, modified or supplemented from time to time in
accordance with its terms.
	 
	 	 	“Subsidiary” shall mean, with respect to any Person (the “parent”) at any date, (i) any
Person the accounts of which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were prepared in accordance
with GAAP as of such date, (ii) any other corporation, limited liability company,
association or other business entity of which securities or other ownership interests
representing more than 50% of the voting power of all Equity Interests entitled (without
regard to the occurrence of any contingency) to vote in the election of the Board of
Directors thereof are, as of such date, owned, controlled or held by the parent and/or one
or more subsidiaries of the parent, (iii) any partnership (a) the sole general partner or
the managing general partner of which is the parent and/or one or more subsidiaries of the
parent or (b) the only general partners of which are the parent and/or one or more
subsidiaries of the parent and (iv) any other Person that is otherwise Controlled by the
parent and/or one or more subsidiaries of the parent. Unless the context requires
otherwise, “Subsidiary” refers to a Subsidiary of the Company.
	 
	 	 	“Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 3, and each
other Subsidiary that is or becomes a party to this Agreement pursuant to Section
8.1(k).
	 
	 	 	“Target” shall have the meaning assigned to such term in the recitals hereto.
	 
	 	 	“Target Material Adverse Effect” shall mean any event, occurrence, change or effect that,
individually or in the aggregate with other events, occurrences, changes or effects, is
materially adverse to the business, properties, assets, liabilities, financial condition or
results of operations of Target and its Subsidiaries; provided, however, that a Target
Material Adverse Effect shall not include any event, occurrence, change or effect arising
out of or attributable to any of the following: (a) a general deterioration in the United




-28-









 






	 	 	States economy or in the industry in which Target and its Subsidiaries operate, provided
that such deterioration does not have a disproportionate impact or effect on Target and its
Subsidiaries, taken as a whole; or (b) changes or effects arising from the announcement or
consummation of the transactions contemplated by the Acquisition Agreement.
	 
	 	 	“Tax Return” shall mean all returns, statements, filings, attachments and other documents or
certifications required to be filed in respect of Taxes.
	 
	 	 	“Taxes” shall have the meaning assigned to such term in Section 2.6.
	 
	 	 	“Test Period” in effect at any time shall mean the most recent period of four consecutive
Fiscal Quarters of the Company ended on or prior to such time (taken as one accounting
period) in respect of which financial statements for each quarter or Fiscal Year in such
period have been or were required to be delivered pursuant to Section 8.1(a)(i) or
(ii).
	 
	 	 	“TCW IVB” shall have the meaning assigned to such term in the preamble hereto.
	 
	 	 	“TCW IV” shall have the meaning assigned to such term in the preamble hereto.
	 
	 	 	“Total Leverage Ratio” shall mean the ratio of (a)(i) for the first four full Fiscal
Quarters after the Closing Date, Consolidated Indebtedness, less letters of credit issued
pursuant to the Senior Documents outstanding not to exceed $5.0 million in the aggregate and
less the aggregate amount of non-restricted cash and Cash Equivalents that would appear on
the consolidated balance sheet of Holdings in conformity with GAAP, and (ii) at any other
date of determination, Consolidated Indebtedness, plus the simple average Revolving Exposure
(as defined in the Senior Credit Agreement) for such Test Period, less the Revolving
Exposure at such date of determination, less Letters of Credit outstanding not to exceed
$5.0 million, less the simple average amount for such Test Period of non-restricted cash and
Cash Equivalents that would appear on the consolidated balance sheet of the Company in
conformity with GAAP for such Test Period on such date, to (b) Consolidated EBITDA for the
Test Period then most recently ended.
	 
	 	 	“Transaction Documents” shall mean, collectively, this Agreement, the Notes, each Guaranty
and all other agreements, instruments and documents, whether heretofore, concurrently, or
hereafter executed by or on behalf of any Issuer Party, any of its Subsidiaries or any other
Person or delivered to the Administrative Agent and/or the Purchasers, relating to this
Agreement or to the transactions contemplated by this Agreement, as each of the same may be
amended, supplemented, restated and/or otherwise modified from time to time in accordance
with its terms.
	 
	 	 	“Transactions” shall mean, collectively, the transactions to occur on or prior to the
Closing Date pursuant to the Transaction Documents, including (a) the execution, delivery
and performance of the Transaction Documents and the initial borrowings hereunder; (b) the
Equity Financing; (c) the execution, delivery and performance of the Senior Documents and
the borrowings thereunder; and (e) the payment of all fees and expenses to be paid on or
prior to the Closing Date and owing in connection with the foregoing.




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	 	 	“UCC” shall mean the Uniform Commercial Code of any applicable jurisdiction and, if the
applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial
Code as in effect from time to time in the State of New York.
	 
	 	 	“United States” shall mean the United States of America.
	 
	 	 	“Voting Stock” shall mean, with respect to any Person, any class or classes of Equity
Interests pursuant to which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the Board of Directors of such Person.
	 
	 	 	“Wholly Owned Subsidiary” shall mean, as to any Person, (a) any corporation 100% of whose
capital stock (other than directors’ qualifying shares) is at the time owned by such Person
and/or one or more Wholly Owned Subsidiaries of such Person and (b) any partnership,
association, joint venture, limited liability company or other entity in which such Person
and/or one or more Wholly Owned Subsidiaries of such Person have a 100% equity interest at
such time.
	 
	 	 	“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.
	 
	1.2	 	Accounting Terms.
	 
	 	 	Except as otherwise expressly provided herein, all financial statements to be delivered
pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time
to time and all terms of an accounting or financial nature shall be construed and
interpreted in accordance with GAAP, as in effect on the date hereof unless otherwise agreed
to by the Company and the Required Note-Holders. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any Transaction
Document, and the Company notifies Administrative Agent that the Company requests an
amendment to any provision hereof to eliminate the effect of any change occurring after the
date hereof in GAAP or in the application thereof on the operation of such provision (or if
Administrative Agent notifies the Company that the Required Note-Holders request an
amendment to any provision hereof for such purpose), regardless of whether any such notice
is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been withdrawn
or such provision amended in accordance herewith. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any Transaction
Document, and the Company, Administrative Agent or Required Note-Holders shall so request,
Administrative Agent, Purchasers and the Company shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Required Note-Holders, not to be unreasonably withheld).
	 
	1.3	 	Definitional Provisions




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	 	(a)	 	References in the Transaction Documents to any agreement or contract, or
section or provision thereof or definition contained therein shall mean and be a
reference to such agreement or contract, or correlative section, provision or
definition as amended, amended and restated, refinanced, supplemented or otherwise
modified from time to time in accordance with its terms.






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






	 	(c)	 	As used herein and in the Transaction Documents, and any certificate or other
document made or delivered pursuant hereto or thereto, (i) the words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation”, (ii) 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), (iii) 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, (iv) the term
“or” is not exclusive, and (v) references to agreements or other Contracts shall,
unless otherwise specified, be deemed to refer to such agreements or Contracts as
amended, supplemented, restated or otherwise modified from time to time in accordance
with the terms hereof.






	 	(d)	 	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.







	2.	 	PURCHASE AND SALE OF NOTES
	 
	2.1	 	Purchase and Sale of the Notes






	 	(a)	 	Subject to the terms and conditions herein set forth, the Company agrees that
it shall issue and sell to the Purchasers, and the Purchasers agree that they shall,
severally and not jointly, acquire from the Company on the Closing Date, the Closing
Notes in the aggregate original principal amount equal to the Original Issuance Amount,
appropriately completed in conformity herewith, the respective purchase price for which
shall be allocated as follows: (i) $12,973,131.22 in the case of TCW IV, (ii)
$9,526,868.78 in the case of TCW IVB, (iii) $2,500,000 in the case of MAC, (iv)
$10,000,000 in the case of GCSFF, (v) $3,000,000 in the case of GCO, (vi) $3,063,436.24
in the case of NY Parallel and (vii) $8,936,563.76 in the case of NY Mezzanine;
	 
	 	(b)	 	Each Issuer Party and the Purchasers acknowledge that the purchase prices set
forth above for each of the Closing Notes represent their relative fair market





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	 	 	 	values, and agree to be bound by this allocation for all tax purposes pursuant to
Treasury Regulation § 1.1273-2(h).






	2.2	 	Closing
	 
	 	 	The purchase and issuance of the Closing Notes under Sections 2.1(a) and
2.1(b) shall take place at the closing (the “Closing”) on April 12, 2007 (the
“Closing Date”). On the Closing Date, the Company shall deliver the Closing Notes to the
Purchasers against delivery by the Purchasers to the Company of the purchase price therefor
in the disbursement authorization letter described in Section 3.15, such purchase
price to be paid by wire transfer of immediately available funds (less amounts payable by
the Issuer Parties under Section 2.3) without duplication, to an account or accounts
specified by the Issuer Parties in such disbursement letter.
	 
	2.3	 	Fees and Expenses
	 
	 	 	On the Closing Date, the Issuer Parties, jointly and severally, shall pay and/or reimburse
all of the Purchasers’ reasonable out-of-pocket expenses (including, without limitation,
reasonable lawyers’ fees, charges and disbursements, reasonable consultants’ fees and
expenses) incurred in connection with the Closing and the transactions described herein.
All payments made pursuant to this Section 2.3 shall be made by wire transfer of
immediately available funds to the respective accounts designated by the Purchasers.
	 
	2.4	 	Financial Accounting Positions; Tax Reporting
	 
	 	 	Each of the parties hereto agrees to take reporting and other positions with respect to the
Notes that are consistent with the purchase price of the Notes set forth herein for all
financial accounting purposes, unless otherwise required by applicable GAAP or SEC rules (in
which case the parties agree not to take positions inconsistent with the purchase price of
the Notes set forth herein unless the Required Note-Holders have consented thereto, which
consent shall not be unreasonably withheld). Each of the parties to this Agreement agrees
to take reporting and other positions with respect to the Notes that are consistent with the
purchase price of the Notes set forth herein for all other purposes, including, without
limitation, for all federal, state and local tax purposes.
	 
	2.5	 	Payments






	 	(a)	 	The Issuer Parties shall make all payments under the Transaction Documents
irrespective of any right of recoupment, defense, counterclaim or set-off. Unless
otherwise stated therein, the Issuer Parties shall make all such payments not later
than 3:00 p.m. (New York City time) to each of the Purchasers on the day when due in
Dollars to the bank account most recently designated by the applicable Purchaser by a
wire transfer of immediately available funds. Payments received by any Purchaser after
3:00 p.m. (New York City time) shall be deemed received on the next Business Day.
Whenever any payment under any of the Transaction Documents is stated to be due on a
day other than a Business Day, such payment shall be due on the next Business Day and
interest shall continue to accrue on such payment.




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	 	(b)	 	Each payment by any Issuer Party pursuant to any Transaction Document shall be
applied to the amounts of such obligations owing to the Purchasers pro rata according
to the respective amounts then due and owing to the Purchasers. If any Purchaser shall
obtain payment in respect of any of the Obligations resulting in such Purchaser
receiving payment of a proportion of the aggregate amount of the Obligations owed to
such Purchaser greater than its pro rata share thereof, then the Purchaser receiving
such greater proportion shall (a) notify the Administrative Agent of such fact, and (b)
make such other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by each of the Purchasers ratably in accordance with the
aggregate amount of principal of and accrued interest on the Obligations owed to such
Purchaser, provided, that the provisions of this Section 2.5(b) shall not be
construed to apply to (x) any payment made to the Administrative Agent as reimbursement
of any costs, fees and expenses incurred by the Administrative Agent, in such capacity
and not in its capacity as a Purchaser, pursuant to and in accordance with the express
terms of this Agreement, (y) any payment obtained by a Purchaser as consideration for
the assignment of or sale of a participation in any of the Obligations owed to such
Purchaser to any assignee or participant or (z) any payment to a Purchaser in
accordance with Section 2.6 or Section 8.2(a)(iii).






	2.6	 	Taxes, Etc.






	 	(a)	 	Any and all payments by each Issuer Party under any Transaction Document shall
be made, in accordance with Section 2.5 of this Agreement, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Purchaser, net income taxes that are imposed by the
United States and franchise, net income and/or capital gain taxes that are imposed on
such Purchaser by the state or foreign jurisdiction under the laws of which such
Purchaser is organized or any political subdivision thereof or in which such
Purchaser’s lending office is located or by a jurisdiction as a result of a present,
former or future connection with such Purchaser (other than a connection solely
resulting from or attributable to such Person having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement) or any branch
profits tax imposed by the United States or any similar tax imposed by any other
jurisdiction in which such Purchaser is located (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being referred to in this
Section 2.6 as “Taxes”). If any Issuer Party shall be required by law to
deduct any Taxes from or in respect of any sum payable under any of the Transaction
Documents to any Purchaser, (i) the sum payable shall be increased by such Issuer Party
as may be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.6) such Purchaser
receives an amount equal to the sum such Purchaser would have received had no such
deductions been made, (ii) such Issuer Party shall make such deductions and withholding
and (iii) such Issuer Party shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.




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	 	(b)	 	In addition, each Issuer Party shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise from any
payment made by such Issuer Party under any of the Transaction Documents or from the
execution, delivery or registration of, or otherwise with respect to, any of the
Transaction Documents (referred to in this Section 2.6 as “Other Taxes”).
	 
	 	(c)	 	Each Issuer Party, jointly and severally, shall indemnify each Purchaser for
the full amount of Taxes and Other Taxes, and for the full amount of Taxes and Other
Taxes imposed by any jurisdiction on amounts payable under this Section 2.6, paid by
such Purchaser and any liability (including penalties, additions to tax, interest and
reasonable expenses but excluding penalties, additions to tax, interest and expenses
caused by the gross negligence or willful misconduct of such Purchaser) arising
therefrom or with respect thereto. This indemnification shall be made within 30 days
from the date the applicable Purchaser makes written demand therefor.
	 
	 	(d)	 	Within 30 days after the date of any payment of Taxes by or on behalf of any
Issuer Party in respect of amounts payable to any Purchaser, such Issuer Party shall
furnish to such Purchaser, at its address referred to in Section 12.2, the
original receipt of payment thereof or a certified copy of such receipt.
	 
	 	(e)	 	Each Purchaser (and any successor or transferee of such Purchaser) that is a
Foreign Purchaser shall, on or prior to the date of its execution and delivery of this
Agreement in the case of a Purchaser party to this Agreement as at the date hereof, and
in the case of any successor or transferee of a Purchaser after the date hereof on or
prior to the date it becomes a successor or transferee, to the extent possible and if
not possible, as soon as practicable after such successor or transferee becomes a
Purchaser (and from time to time thereafter if requested in writing by an Issuer Party
at the time or times prescribed by law, but only so long thereafter as it remains
lawfully able to do so), provide such Issuer Party with Internal Revenue Service form
W-8IMY, W-8BEN and/or W-8ECI, as appropriate, or any successor form(s) prescribed by
the Internal Revenue Service, certifying that the beneficial owner of the Notes is
exempt from or is entitled to a reduced rate of United States withholding tax on
interest payments on the Notes. Each Purchaser (and any successor or transferee of
such Purchaser) that is not a Foreign Purchaser shall, upon the request of the Issuer
Parties, on or prior to the date of its execution and delivery of this Agreement in the
case of a Purchaser party to this Agreement as at the date hereof, and in the case of
any successor or transferee of a Purchaser after the date hereof on or prior to the
date it becomes a successor or transferee, to the extent possible and if not possible,
as soon as practicable after such successor or transferee becomes a Purchaser (and
from time to time thereafter if requested in writing by an Issuer Party at the time or
times prescribed by law, but only so long thereafter as it remains lawfully able to do
so), provide such Issuer Party with Internal Revenue Service form W-9, certifying that
such Person is exempt from United States backup withholding tax with respect to the
Notes. Any United States withholding tax applicable to payments to such Person under
the existing law at the time it first becomes a party




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	 	 	 	to this Agreement shall be excluded from Taxes; provided, however, that, if due to a
change in law after the date that a Person first becomes a party to this Agreement,
United States withholding taxes are imposed in respect to payments under this
Agreement and otherwise are not considered excluded from Taxes with respect to such
Person, the term “Taxes” shall thereafter include United States withholding tax, if
any, applicable with respect to such Person (or any successor or transferee of such
Person). If any form or document referred to in this subsection (e) and requested
by an Issuer Party pursuant to this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required by Internal Revenue Service forms W-8IMY, W-8BEN and/or W-8ECI
(including any amended or successor forms) that the provider reasonably considers to
be confidential, the provider shall give notice thereof to such Issuer Party and
shall not be obligated to include in such form or document such confidential
information, provided that if the failure to provide such information results in the
imposition of United States withholding tax at a rate in excess of the rate at which
such tax would be imposed if such information were provided, then such excess
withholding tax shall be considered excluded from Taxes.
	 
	 	(f)	 	For any period with respect to which any Purchaser has failed to provide an
Issuer Party with the appropriate form described in Section 2.6(e) (other than
if such failure is due to a change in law occurring after the date such Person first
becomes a party to this Agreement or if such form otherwise is not required under
Section 2.6(e)), such Purchaser shall not be entitled to indemnification under
this Section 2.6 with respect to Taxes imposed by the United States relating to
interest payments on the Notes; provided, however, that should such Person become
subject to Taxes because of its failure to deliver a form required hereunder, such
Issuer Party shall take such steps as such Person shall reasonably request to assist
such Person to recover such Taxes, and such Person shall reimburse such Issuer Party
for all reasonable out-of-pocket expenses of such Issuer Party incurred in providing
such assistance.
	 
	 	(g)	 	If any Issuer Party pays any amount pursuant this Section 2.6 with respect to
any Purchaser, such Purchaser shall use reasonable efforts to obtain a refund of Taxes
or credit against future tax liabilities on account of such payment. If any Purchaser
receives a refund for (or determines that there has been an overpayment of) or credit
against any Taxes or other amounts as to which such Purchaser has been indemnified
pursuant to this Section 2.6 or on account of which additional amounts have
been paid pursuant to this Section 2.6, such Purchaser shall promptly notify
the Issuer Parties and pay over such refund or overpayment to the applicable Issuer
Party (but only to the extent such Purchaser has been indemnified pursuant to this
Section 2.6) or of additional amounts paid by such Issuer Party under this
Section 2.6 with respect to Taxes or other amounts on account of which
additional amounts have been paid) net of all reasonable out-of-pocket expenses of such
Purchaser and without interest (other than any interest actually received thereon from
the respective Governmental Authority with respect to such refund net of any Taxes
estimated by such Purchaser to be payable




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	 	 	 	by it in respect of such interest). If, at any time after a Purchaser makes a
payment to any Issuer Party pursuant to the preceding sentence, such Purchaser
determines that it was not entitled to the full amount of any refund or overpayment
(together with interest thereon (if any)) reimbursed to such Issuer Party, such
Issuer Party upon the demand of such Purchaser shall promptly pay to such Purchaser
the amounts so refunded or overpaid and paid over to such Issuer Party (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority
and attributable solely to the amount of such refund or overpayment paid over to
such Issuer Party). If any Issuer Party determines in good faith that a reasonable
basis exists for contesting a Tax or Other Tax, and if it so requests, the
Purchasers shall cooperate in challenging such Tax or Other Tax at the Issuer
Parties’ expense. If any Purchaser becomes aware that it is entitled to claim a
refund in respect of a Tax or Other Tax as to which it has been indemnified by the
Issuer Parties pursuant to Section 2.6(c) or with respect to which any
Issuer Party paid additional amounts pursuant to Section 2.6(a), it shall
promptly notify the Issuer Parties of the availability of such refund claim and
shall, within 30 days after receipt of a request by any Issuer Party, make a claim
to the applicable Governmental Authority for such refund at the Issuer Parties’
expense. Nothing contained in this Section 2.6(g) shall require any
Purchaser to make available its tax returns (or any other information relating to
its taxes that it deems confidential) to any Issuer Party or any other Person.
	 
	 	(h)	 	If any Issuer Party is required to make additional payments or indemnification
payments pursuant to this Section 2.6 to or on account of a party to this
Agreement as a result of a change in law or treaty occurring after such party first
becomes a party to this Agreement, then such party shall, at such Issuer Party’s
request, change the jurisdiction of its lending office, provided that (i) such Issuer
Party has a reasonable basis for determining that such change will eliminate or reduce
any additional or indemnification payment which may thereafter accrue and (ii) such
party determines in its reasonable discretion that such change is not disadvantageous
to it.
	 
	 	(i)	 	If any Purchaser requests compensation under Section 2.6, then such
Issuer Party may, at its sole expense and effort, upon notice to such Purchaser and the
Administrative Agent, require such Purchaser to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in, and consents required
by, Section 12.3), all of its interests, rights and obligations under this Agreement
and the other Transaction Documents and such assignee shall assume such obligations
(which assignee may be another Purchaser, if a Purchaser accepts such assignment);
provided that:






	 	(i)	 	the Administrative Agent shall have been paid the processing
and recordation fee specified in Section 12.3(d);
	 
	 	(ii)	 	such Purchaser shall have received payment of an amount equal
to the outstanding principal of its Notes, accrued interest thereon, accrued
fees




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	 	 	 	and all other amounts payable to it hereunder and under the other
Transaction Documents (other than prepayment penalties);
	 
	 	(iii)	 	in the case of any such assignment resulting from a claim for
compensation under Section 2.6, such assignment will result in a
reduction in such compensation or payments thereafter; and
	 
	 	(iv)	 	such assignment does not conflict with applicable Requirements
of Law.






	 	 	A Purchaser shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Purchasers or otherwise, the circumstances
entitling the Issuer Party to require such assignment and delegation cease to apply.
	 
	3.	 	CONDITIONS TO OBLIGATIONS OF THE PURCHASERS TO PURCHASE THE NOTES ON THE CLOSING DATE
	 
	 	 	The obligations of each of the Purchasers to purchase the Closing Notes on the Closing Date,
to pay the purchase price therefor on the Closing Date and to perform any of its obligations
hereunder, shall be subject to the satisfaction as determined by, or waived by, each of the
Purchasers of the conditions set forth in this Section 3 on or before the Closing
Date.
	 
	3.1	 	Representations and Warranties
	 
	 	 	The representations and warranties set forth in any Transaction Document shall be true and
correct in all material respects at and as of the Closing Date, as if made at and as of such
date.
	 
	3.2	 	Compliance with this Agreement
	 
	 	 	The Issuer Parties shall have performed and complied with all of their agreements herein and
satisfied the conditions set forth or contemplated herein that are required to be performed
or complied with or satisfied by the Issuer Parties on or before the Closing Date.
	 
	3.3	 	Secretary’s Certificates
	 
	 	 	The Administrative Agent shall have received a certificate from each of the Issuer Parties,
dated the Closing Date, and signed by an officer thereof, certifying (a) that the attached
copies of its Organizational Documents and resolutions of its Board of Directors approving
the Transaction Documents to which it is a party and the transactions contemplated hereby
and thereby, are all true, complete and correct and remain unamended and in full force and
effect, and (b) as to the incumbency and specimen signature of each officer thereof
executing any Transaction Document or any other document delivered in connection herewith on
behalf thereof.
	 
	3.4	 	Good Standing Certificates




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	 	 	The Administrative Agent shall have received as of the Closing Date, good standing and
franchise (or similar) tax status certificates for each Issuer Party, dated within thirty
(30) days of the Closing Date, from each of their respective jurisdictions of incorporation
or organization and all other jurisdictions where they are required to be qualified as a
foreign corporation, limited liability company or partnership, in each case in form and
substance satisfactory to the Purchasers.
	 
	3.5	 	Purchase of Notes Permitted by Applicable Laws
	 
	 	 	The acquisition of and payment for the Closing Notes to be acquired by the Purchasers
hereunder and the consummation of the transactions contemplated hereby (a) shall not be
prohibited by any Requirement of Law, (b) shall not subject the Purchasers to any penalty or
other onerous condition under or pursuant to any Requirement of Law, and (c) shall be
permitted by all Requirements of Law to which the Purchasers or the transactions
contemplated by or referred to herein or in the other Transaction Documents are subject; and
the Purchasers shall have received such certificates or other evidence as they may
reasonably request to establish compliance with this condition.
	 
	3.6	 	Opinion of Counsel
	 
	 	 	The Administrative Agent shall have received an opinion of outside counsel to the Issuer
Parties, dated as of the Closing Date, addressed to the Administrative Agent and each of the
Purchasers, relating to the transactions contemplated by or referred to herein.
	 
	3.7	 	Approval of Counsel To the Purchasers
	 
	 	 	All actions and proceedings hereunder and all agreements, schedules, exhibits, certificates,
financial information, filings and other documents required to be delivered by the Issuer
Parties or in connection with the consummation of the transactions contemplated hereby, and
all other related matters, shall have been in form and substance acceptable to Loeb & Loeb
LLP, special counsel to the Purchasers, in its reasonable judgment (including, without
limitation, the opinion of counsel referred to in Section 3.6 hereof).
	 
	3.8	 	Consents and Approvals
	 
	 	 	All consents, exemptions, authorizations, or other actions by, or notices to, or filings
with, Governmental Authorities and other Persons in respect of all Requirements of Law and
with respect to the Contracts of the Issuer Parties necessary in connection with the
execution, delivery or performance (including, without limitation, the payment of interest
on the Closing Notes) by each Issuer Party or enforcement against the Issuer Parties of the
Transaction Documents and the Related Transactions Documents shall have been obtained and be
in full force and effect, and the Purchasers shall have been furnished with appropriate
evidence thereof, and all waiting periods shall have lapsed without extension or the
imposition of any conditions or restrictions.
	 
	3.9	 	No Material Judgment or Order




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	 	 	There shall not be on the Closing Date any judgment or order of a court of competent
jurisdiction or any ruling of any Governmental Authority or any condition imposed under any
Requirement of Law that, in the judgment of the Purchasers, would prohibit the purchase of
the Closing Notes hereunder or subject any Purchaser to any penalty or other onerous
condition if the Closing Notes were to be purchased hereunder.
	 
	3.10	 	No Material Adverse Change
	 
	 	 	Since January 29, 2007, there has not been a Target Material Adverse Effect.
	 
	3.11	 	Pro Forma Balance Sheet and Projections
	 
	 	 	The Issuer Parties shall have delivered to the Administrative Agent the financial statements
described in Section 5.4(a) and the forecasts of the financial performance of
Holdings, the Company, the Acquired Business and their respective Subsidiaries.
	 
	3.12	 	Transaction Documents
	 
	 	 	The Administrative Agent shall have received on or prior to the Closing Date each of the
following, each dated the Closing Date in form and substance satisfactory to the
Administrative Agent and each Purchaser:






	 	(a)	 	this Agreement duly executed by each Issuer Party;
	 
	 	(b)	 	the Closing Notes to be purchased on the Closing Date duly executed by the
Company;
	 
	 	(c)	 	Guarantees duly executed by each Guarantor.






	3.13	 	Fees and Expenses
	 
	 	 	The Issuer Parties shall have paid, by wire transfer of immediately available funds, the
fees and expenses referred to in Section 2.3.
	 
	3.14	 	Structure
	 
	 	 	The Organizational Documents of each Issuer Party and the capital structure of the Issuer
Parties shall be satisfactory to each Purchaser.
	 
	3.15	 	Disbursement Letter
	 
	 	 	The Administrative Agent shall have received a disbursement authorization letter from the
Issuer Parties in form and substance satisfactory to the Purchasers, among other things,
directing the Purchasers to disburse the proceeds of the issuance of the Closing Notes.
	 
	3.16	 	Insurance




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	 	 	The Administrative Agent shall have received insurance certificates in form and substance
satisfactory to each Purchaser demonstrating that the insurance policies required by
Section 8.1(d) are in full force and effect.
	 
	3.17	 	Certificates
	 
	 	 	The Administrative Agent shall have received from a Responsible Officer of the Company a
certificate, in form and substance satisfactory to each Purchaser, as to the solvency of the
Issuer Parties (after giving effect to consummation of the Transactions and the Related
Transactions) and a certificate from a Responsible Officer of the Company as to the
satisfaction of the condition listed in this Section 3.
	 
	3.18	 	Holdings Equityholders Agreement
	 
	 	 	Holdings, the Purchasers, Sponsor and the other Persons party thereto shall have entered
into the Holdings Equityholders Agreement which shall be in form and substance satisfactory
to the Purchasers.
	 
	3.19	 	Related Transactions
	 
	 	 	The Related Transactions Documents shall have been approved by each of the Purchasers and
shall have been executed and delivered by the Persons named therein as parties thereto, and
the Related Transactions, including without limitation, the Acquisition, shall have been
consummated in accordance with the terms of the Related Transactions Documents (without
waiver or amendment except as approved by each of the Purchasers) and in compliance in all
material respects with Requirements of Law (it being understood that the consummation of the
Acquisition and the Merger will happen simultaneously with the Closing).
	 
	4.	 	CONDITIONS TO THE OBLIGATION OF THE COMPANY TO ISSUE AND SELL THE NOTES
	 
	 	 	The obligations of the Company to issue and sell the Closing Notes shall be subject to the
satisfaction as determined by, or waived by the Company of the following conditions on or
before the Closing Date:
	 
	4.1	 	Representations and Warranties
	 
	 	 	The representations and warranties of the Purchasers contained in Section 6 hereof shall be
true and correct at and as of the Closing Date as if made at and as of such date.
	 
	4.2	 	Compliance with this Agreement
	 
	 	 	The Purchasers shall have performed and complied with all of their respective agreements and
conditions set forth or contemplated herein that are required to be performed or complied
with by the Purchasers on or before the Closing Date.
	 
	5.	 	REPRESENTATIONS AND WARRANTIES OF THE ISSUER PARTIES




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	 	 	Each Issuer Party hereby represents and warrants to the Purchasers (which representations
and warranties shall survive the purchase and sale of the Closing Notes), on the Closing
Date, both immediately prior to and after giving effect to the transactions contemplated by
this Agreement and the Related Transactions to occur on the Closing Date including, without
limitation, the Merger, as follows:
	 
	5.1	 	Organization; Powers
	 
	 	 	Each Issuer Party (a) is duly organized and validly existing under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to carry on its
business as now conducted and to own and lease its property and (c) is qualified and in good
standing (to the extent such concept is applicable in the applicable jurisdiction) to do
business in every jurisdiction where such qualification is required, except in such
jurisdictions where the failure to so qualify or be in good standing, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. There
is no existing default under any Organizational Document of any Issuer Party or any event
which, with the giving of notice or passage of time or both, would constitute a default by
any party thereunder.
	 
	5.2	 	Authorization; Enforceability
	 
	 	 	The Transactions to be entered into by each Issuer Party are within such Issuer Party’s
powers and have been duly authorized by all necessary action on the part of such Issuer
Party. This Agreement has been duly executed and delivered by each Issuer Party and
constitutes, and each other Transaction Document to which any Issuer Party is to be a party,
when executed and delivered by such Issuer Party, will constitute, a legal, valid and
binding obligation of such Issuer Party, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
	 
	5.3	 	No Conflicts
	 
	 	 	Except as set forth on Schedule 5.3, the Transactions (a) do not require any consent
or approval of, registration or filing with, or any other action by, any Governmental
Authority, except (i) such as have been obtained or made and are in full force and effect
and (ii) consents, approvals, registrations, filings, permits or actions the failure to
obtain or perform which could not reasonably be expected to result in a Material Adverse
Effect, (b) will not violate the Organizational Documents of any Issuer Party, (c) will not
violate any Requirement of Law, (d) will not violate or result in a default or require any
consent or approval under any indenture, agreement or other instrument binding upon any
Issuer Party or its property, or give rise to a right thereunder to require any payment to
be made by any Issuer Party, except for violations, defaults or the creation of such rights
that could not reasonably be expected to result in a Material Adverse Effect, and (e) will
not result in the creation or imposition of any Lien on any property of any Issuer Party,
except Liens created by the Senior Documents and Permitted Liens.




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	5.4	 	Financial Statements; Projections






	 	(a)	 	Historical Financial Statements
	 
	 	 	 	The Company has heretofore delivered to the Purchasers the consolidated balance
sheets and related statements of income, stockholders’ equity and cash flows of the
Target (i) as of and for the Fiscal Years ended 2004, 2005 and, if available, 2006,
audited by and accompanied by the unqualified opinion of Ernst & Young LLP,
independent public accountants, and (ii) as of and (x) for each Fiscal Quarter of
the Fiscal Year in which the Closing Date occurs ended prior to 45 days prior to the
Closing Date and (y) for each monthly financial period of the Fiscal Year ended
after the most recent Fiscal Quarter in clause (x) and ended prior to 30 days prior
to the Closing Date and for the comparable period of the preceding Fiscal Year, in
each case, certified by the chief financial officer of the Target. Such financial
statements and all financial statements delivered pursuant to Section 8.1(a)
have been prepared in accordance with GAAP and present fairly and accurately the
financial condition and results of operations and cash flows of the Acquired
Business as of the dates and for the periods to which they relate.
	 
	 	(b)	 	No Liabilities
	 
	 	 	 	Except as set forth in the financial statements referred to in Section
5.4(a), there are no liabilities of any Issuer Party of any kind, whether
accrued, contingent, absolute, determined, determinable or otherwise, which could
reasonably be expected to result in a Material Adverse Effect, and there is no
existing condition, situation or set of circumstances which could reasonably be
expected to result in such a liability, other than liabilities under the Transaction
Documents. Since December 31, 2006, there has been no event, change, circumstance
or occurrence that, individually or in the aggregate, has had or could reasonably be
expected to result in a Material Adverse Effect.
	 
	 	(c)	 	Forecasts
	 
	 	 	 	The forecasts of financial performance of Holdings and its Subsidiaries furnished to
the Purchasers have been prepared in good faith by the Company and based on
assumptions believed by the Company to reasonable.






	5.5	 	Properties






	 	(a)	 	Generally
	 
	 	 	 	Each Issuer Party has good title to, or valid leasehold interests in, all its
property material to its business, free and clear of all Liens except for Permitted
Liens and minor irregularities or deficiencies in title that, individually or in the
aggregate, do not interfere with its ability to conduct its business as currently
conducted or to utilize such property for its intended purpose. The property of the
Issuer Parties, taken as a whole, (i) is in good operating order, condition and
repair (ordinary




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	 	 	 	wear and tear excepted) and (ii) constitutes all the property which is required for
the business and operations of the Issuer Parties as presently conducted.
	 
	 	(b)	 	Real Property
	 
	 	 	 	Schedule 5.5(b) hereof contains a true and complete list of each interest in
Real Property (i) owned by any Issuer Party as of the date hereof and describes the
type of interest therein held by such Issuer Party and whether such owned Real
Property is leased and if leased whether the underlying Lease contains any option to
purchase all or any portion of such Real Property or any interest therein or
contains any right of first refusal relating to any sale of such Real Property or
any portion thereof or interest therein and (ii) leased, subleased or otherwise
occupied or utilized by any Issuer Party, as lessee, sublessee, franchisee or
licensee, as of the date hereof and describes the type of interest therein held by
such Issuer Party and, in each of the cases described in clauses (i) and (ii) of
this Section 5.5(b), whether any Lease requires the consent of the landlord
or tenant thereunder, or other party thereto, to the Transactions.
	 
	 	(c)	 	No Casualty Event
	 
	 	 	 	No Issuer Party has received any notice of, nor has any knowledge of, the occurrence
or pendency or contemplation of any Casualty Event affecting all or any portion of
its property. No Mortgage encumbers improved Real Property that is located in an
area that has been identified by the Secretary of Housing and Urban Development as
an area having special flood hazards within the meaning of the National Flood
Insurance Act of 1968 unless flood insurance available under such Act has been
obtained in accordance with Section 8.1(d).
	 
	 	(d)	 	Property and Assets
	 
	 	 	 	Each Issuer Party owns or has rights to use all property used in, necessary for or
material to each Issuer Party’s business as currently conducted. The use by each
Issuer Party of such property and all such rights with respect to the foregoing do
not infringe on the rights of any Person other than such infringement which could
not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect. No claim has been made and remains outstanding that any
Issuer Party’s use of any property does or may violate the rights of any third party
that could, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.






	5.6	 	Intellectual Property






	 	(a)	 	Ownership/No Claims
	 
	 	 	 	Each Issuer Party owns, or is licensed to use, all patents, patent applications,
trademarks, trade names, service marks, copyrights, technology, trade secrets,
proprietary information, domain names, know-how and processes necessary for the
conduct of its business as currently conducted (the “Intellectual Property”),




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	 	 	 	except for those the failure to own or license which, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Except as set forth on Schedule 5.6(a) to this Agreement, no claim has been
asserted and is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does any Issuer Party know of any valid basis for any such claim. The
use of such Intellectual Property by each Issuer Party does not infringe the rights
of any Person, except for such claims and infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.
	 
	 	(b)	 	Registrations
	 
	 	 	 	Except pursuant to licenses and other user agreements entered into by each Issuer
Party in the ordinary course of business that are listed in Schedule 5.6(b)
to this Agreement, on and as of the date hereof (i) each Issuer Party owns and
possesses the right to use, and has done nothing to authorize or enable any other
Person to use, any copyright, patent or trademark listed in Schedule 5.6(b)
to this Agreement and (ii) all registrations listed in Schedule 5.6(b) to
this Agreement are valid and in full force and effect.
	 
	 	(c)	 	No Violations or Proceedings
	 
	 	 	 	To each Issuer Party’s knowledge, on and as of the date hereof, there is no material
violation by others of any right of such Issuer Party with respect to any copyright,
patent or trademark listed in Schedule 5.6(b) to this Agreement, except as
may be set forth on Schedule 5.6(c).






	5.7	 	Equity Interests and Subsidiaries






	 	(a)	 	Equity Interests
	 
	 	 	 	Schedule 5.7(a) to this Agreement sets forth a list of (i) all the
Subsidiaries of Holdings and their jurisdictions of organization as of the Closing
Date and (ii) the number of each class of its Equity Interests authorized, and the
number outstanding, on the Closing Date and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and similar rights
at the Closing Date. All Equity Interests of each Issuer Party are duly and validly
issued and are fully paid and non-assessable, and, other than the Equity Interests
of the Company, are owned by the Company, directly or indirectly through Wholly
Owned Subsidiaries. All Equity Interests of the Company are owned directly by
Holdings. There are no outstanding warrants, options or other rights to purchase,
or shareholder, voting trust or similar agreements outstanding with respect to, or
property that is convertible into, or that requires the issuance or sale of, any
Equity Interests pledged to Senior Lenders pursuant to the Senior Documents.
	 
	 	(b)	 	Organizational Chart




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	 	 	 	An accurate organizational chart, showing the ownership structure of Holdings, the
Company and each Subsidiary after giving effect to the Transactions and the Related
Transactions, is set forth on Schedule 5.7(b) to this Agreement.






	5.8	 	Litigation; Compliance with Laws
	 
	 	 	There are no actions, suits, investigations or proceedings at law or in equity by or before
any Governmental Authority now pending or, to the knowledge of any Issuer Party, threatened
against or affecting any Issuer Party or any business, property or rights of any Issuer
Party (i) that involve any Transaction Document or Related Transaction Documents or any of
the Transactions or Related Transactions or (ii) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect.
Except for matters covered by Section 5.18, no Issuer Party or any of its property
is in violation of, nor will the continued operation of its property as currently conducted
violate, any Requirements of Law (including any zoning or building ordinance, code or
approval or any building permits) or any restrictions of record or agreements affecting any
Issuer Party’s Real Property or is in default with respect to any Requirement of Law, where
such violation or default, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
	 
	5.9	 	Agreements.
	 
	 	 	No Issuer Party is a party to any agreement or instrument or subject to any corporate or
other constitutional restriction that has resulted or could reasonably be expected to result
in a Material Adverse Effect. No Issuer Party is in default in any manner under any
provision of any indenture or other agreement or instrument evidencing Indebtedness, or any
other agreement or instrument to which it is a party or by which it or any of its property
is or may be bound, where such default could reasonably be expected to result in a Material
Adverse Effect, and no condition exists which, with the giving of notice or the lapse of
time or both, would constitute such a default. Schedule 5.9 accurately and
completely lists all Material Contracts to which any Issuer Party or any of its Subsidiaries
is a party which are in effect on the date hereof in connection with the operation of the
business conducted thereby and each Issuer Party has delivered or made available to the
Administrative Agent complete and correct copies of all such Material Contracts, including
any amendments, supplements or modifications with respect thereto, and all such agreements
are in full force and effect.
	 
	5.10	 	Federal Reserve Regulations
	 
	 	 	No Issuer Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of buying or carrying Margin Stock. No part of
the proceeds of the purchase of the Closing Notes will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, for any purpose that
entails a violation of, or that is inconsistent with, the provisions of the regulations of
the Board, including Regulation T, U or X.




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	5.11	 	Investment Company Act.
	 
	 	 	No Issuer Party is an “investment company” or a company “controlled” by an “investment
company,” as defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended.
	 
	5.12	 	Use of Proceeds
	 
	 	 	The Company will use the proceeds of the purchase of the Closing Notes to effect the
Acquisition, the Refinancing and to finance the Transactions and pay related fees and
expenses.
	 
	5.13	 	Taxes
	 
	 	 	Each Issuer Party has (a) timely filed or caused to be timely filed all federal Tax Returns
and all material state, local and foreign Tax Returns or materials required to have been
filed by it and all such Tax Returns are true and correct in all material respects and
(b) duly and timely paid, collected or remitted or caused to be duly and timely paid,
collected or remitted all Taxes (whether or not shown on any Tax Return) due and payable,
collectible or remittable by it and all assessments received by it (including in its
capacity as a withholding agent), except Taxes (i) that are being contested in good faith by
appropriate proceedings and for which such Issuer Party has set aside on its books adequate
reserves in accordance with GAAP and (ii) which could not, individually or in the aggregate,
have a Material Adverse Effect. Each Issuer Party has made adequate provision in accordance
with GAAP for all Taxes not yet due and payable. Each Issuer Party is unaware of any
proposed or pending tax assessments, deficiencies or audits that could be reasonably
expected to, individually or in the aggregate, result in a Material Adverse Effect. No
Issuer Party has ever been a party to any understanding or arrangement constituting a “tax
shelter” within the meaning of Section 6111(c), Section 6111(d) or Section
6662(d)(2)(C)(iii) of the Code, or has ever “participated” in a “reportable transaction”
within the meaning of Treasury Regulation Section 1.6011-4, except as could not be
reasonably expected to, individually or in the aggregate, result in a Material Adverse
Effect.
	 
	5.14	 	No Material Misstatements
	 
	 	 	No information, report, financial statement, certificate, exhibit or schedule furnished by
or on behalf of any Issuer Party to the Administrative Agent or any Purchaser in connection
with the negotiation of any Transaction Document or included therein or delivered pursuant
thereto including, without limitation, the Confidential Information Memorandum, taken as a
whole, contained or contains any material misstatement of fact or omitted or omits to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were or are made, not misleading as of the date such
information is dated or certified; provided that to the extent any such information, report,
financial statement, exhibit or schedule was based upon or constitutes a forecast or
projection, each Issuer Party represents only that it acted in good faith and




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	 	 	utilized reasonable assumptions and due care in the preparation of such information, report,
financial statement, exhibit or schedule.
	 
	5.15	 	Labor Matters
	 
	 	 	As of the Closing Date, there are no strikes, lockouts or slowdowns against any Issuer Party
pending or, to the knowledge of any Issuer Party, threatened. The hours worked by and
payments made to employees of any Issuer Party have not been in violation of the Fair Labor
Standards Act of 1938, as amended, or any other applicable federal, state, local or foreign
law dealing with such matters in any manner which could reasonably be expected to result in
a Material Adverse Effect. All payments due from any Issuer Party, or for which any claim
may be made against any Issuer Party, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the books of such
Issuer Party except where the failure to do so could not reasonably be expected to result in
a Material Adverse Effect. The consummation of the Transactions will not give rise to any
right of termination or right of renegotiation on the part of any union under any collective
bargaining agreement to which any Issuer Party is bound.
	 
	5.16	 	Solvency
	 
	 	 	Immediately after the consummation of the Transactions and the Related Transactions to occur
on the Closing Date, (a) the fair value of the properties of each Issuer Party (individually
and on a consolidated basis with its Subsidiaries) will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of the property
of each Issuer Party (individually and on a consolidated basis with its Subsidiaries) will
be greater than the amount that will be required to pay the probable liability of its debts
and other liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) each Issuer Party (individually and on a
consolidated basis with its Subsidiaries) will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) each Issuer Party (individually and on a consolidated basis with its
Subsidiaries) will not have unreasonably small capital with which to conduct its business in
which it is engaged as such business is now conducted and is proposed to be conducted
following the Closing Date.
	 
	5.17	 	Employee Benefit Plans
	 
	 	 	Each Issuer Party and its ERISA Affiliates is in compliance in all material respects with
the applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events, could reasonably be expected to
result in material liability of any Issuer Party or any of its ERISA Affiliates or the
imposition of a Lien on any of the property of any Issuer Party. Using actuarial
assumptions and computation methods consistent with subpart I of subtitle E of Title IV of
ERISA, the aggregate liabilities of each Issuer Party or its ERISA Affiliates to all
Multiemployer Plans in the event of a complete withdrawal therefrom, as of the close of




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	 	 	the most recent Fiscal Year of each such Multiemployer Plan, could not reasonably be
expected to result in a Material Adverse Effect.
	 
	5.18	 	Environmental Matters






	 	(a)	 	Except as set forth in Schedule 5.18 and except as, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect:






	 	(i)	 	The Issuer Parties and their businesses, operations and Real
Property are in compliance with, and the Issuer Parties have no liability
under, any applicable Environmental Law; and under the currently effective
business plan of the Issuer Parties, no expenditures or operational adjustments
will be required in order to comply with applicable Environmental Laws during
the next five years;
	 
	 	(ii)	 	The Issuer Parties have obtained all Environmental Permits
required for the conduct of their businesses and operations, and the ownership,
operation and use of their property, under Environmental Law, all such
Environmental Permits are valid and in good standing and, under the currently
effective business plan of the Issuer Parties, no expenditures or operational
adjustments will be required in order to renew or modify such Environmental
Permits during the next five years;
	 
	 	(iii)	 	There has been no Release or threatened Release of Hazardous
Material on, at, under or from any Real Property or facility presently or
formerly owned, leased or operated by the Issuer Parties or their predecessors
in interest that could result in liability by the Issuer Parties under any
applicable Environmental Law;
	 
	 	(iv)	 	There is no Environmental Claim pending or, to the knowledge of
the Issuer Parties, threatened against the Issuer Parties, or relating to the
Real Property currently or formerly owned, leased or operated by the Issuer
Parties or their predecessors in interest or relating to the operations of the
Issuer Parties, and there are no actions, activities, circumstances,
conditions, events or incidents that could form the basis of such an
Environmental Claim; and
	 
	 	(v)	 	No Person with an indemnity or contribution obligation to the
Issuer Parties relating to compliance with or liability under Environmental Law
is in default with respect to such obligation.






	 	(b)	 	Except as set forth in Schedule 5.18:






	 	(i)	 	No Issuer Party is obligated to perform any action or otherwise
incur any expense under Environmental Law pursuant to any order, decree,
judgment or agreement by which it is bound or has assumed by contract,
agreement or operation of law, and no Issuer Party is conducting or




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	 	 	 	financing any Response pursuant to any Environmental Law with respect to any
Real Property or any other location;
	 
	 	(ii)	 	No Real Property or facility owned, operated or leased by the
Issuer Parties and, to the knowledge of the Issuer Parties, no Real Property or
facility formerly owned, operated or leased by the Issuer Parties or any of
their predecessors in interest is (i) listed or proposed for listing on the
National Priorities List promulgated pursuant to CERCLA or (ii) listed on the
Comprehensive Environmental Response, Compensation and Liability Information
System promulgated pursuant to CERCLA or (iii) included on any similar list
maintained by any Governmental Authority including any such list relating to
petroleum;
	 
	 	(iii)	 	No Lien has been recorded or, to the knowledge of any Issuer
Party, threatened under any Environmental Law with respect to any Real Property
or other assets of the Issuer Parties;
	 
	 	(iv)	 	The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not require any
notification, registration, filing, reporting, disclosure, investigation,
remediation or cleanup pursuant to any Governmental Real Property Disclosure
Requirements or any other applicable Environmental Law; and
	 
	 	(v)	 	The Issuer Parties have made available to the Purchasers all
material records and files in the possession, custody or control of, or
otherwise reasonably available to, the Issuer Parties concerning compliance
with or liability under Environmental Law, including those concerning the
actual or suspected existence of Hazardous Material at Real Property or
facilities currently or formerly owned, operated, leased or used by the Issuer
Parties.






	5.19	 	Insurance
	 
	 	 	Schedule 5.19 sets forth a true, complete and correct description of all insurance
maintained by each Issuer Party as of the Closing Date. All insurance maintained by the
Issuer Parties is in full force and effect, all premiums have been duly paid, no Issuer
Party has received notice of violation or cancellation thereof, the Premises, and the use,
occupancy and operation thereof, comply in all material respects with all Insurance
Requirements, and there exists no default under any Insurance Requirement. Each Issuer
Party has insurance in such amounts and covering such risks and liabilities as are customary
for companies of a similar size engaged in similar businesses in similar locations.
	 
	5.20	 	Intentionally Omitted
	 
	5.21	 	Acquisition Documents; Representations and Warranties in Acquisition Agreement




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	 	 	Schedule 5.21 lists (i) each exhibit, schedule, annex or other attachment to the
Acquisition Agreement and (ii) each agreement, certificate, instrument, letter or other
document contemplated by the Acquisition Agreement or any item referred to in clause (i) to
be entered into, executed or delivered or to become effective in connection with the
Acquisition or otherwise entered into, executed or delivered in connection with the
Acquisition. The Purchasers have been furnished true and complete copies of each
Acquisition Document to the extent executed and delivered on or prior to the Closing Date.
All representations and warranties of each Issuer Party set forth in the Acquisition
Agreement were true and correct in all material respects as of the time such representations
and warranties were made and shall be true and correct in all material respects as of the
Closing Date as if such representations and warranties were made on and as of such date,
unless stated to relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier date.
	 
	5.22	 	Anti-Terrorism Law
	 
	 	 	No Issuer Party and, to the knowledge of the Issuer Parties, none of its Affiliates is in
violation of any Requirement of Law relating to terrorism or money laundering
(“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001 (the “Executive Order”), and the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Public Law 107-56.






	 	(a)	 	No Issuer Party and to the knowledge of the Issuer Parties, no Affiliate or
broker or other agent of any Issuer Party acting or benefiting in any capacity in
connection with the issuance of the Notes is any of the following:






	 	(i)	 	a Person that is listed in the annex to, or is otherwise
subject to the provisions of, the Executive Order;
	 
	 	(ii)	 	a Person owned or controlled by, or acting for or on behalf of,
any Person that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order;
	 
	 	(iii)	 	a Person with which any Purchaser is prohibited from dealing
or otherwise engaging in any transaction by any Anti-Terrorism Law;
	 
	 	(iv)	 	a Person that commits, threatens or conspires to commit or
supports “terrorism” as defined in the Executive Order; or
	 
	 	(v)	 	a Person that is named as a “specially designated national and
blocked Person” on the most current list published by the U.S. Treasury
Department Office of Foreign Assets Control (“OFAC”) at its official website or
any replacement website or other replacement official publication of such list.




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	 	(b)	 	No Issuer Party and, to the knowledge of the Issuer Parties, no broker or other
agent of any Issuer Party acting in any capacity in connection with the issuance of the
Notes (i) conducts any business or engages in making or receiving any contribution of
funds, goods or services to or for the benefit of any Person described in paragraph (a)
above, (ii) deals in, or otherwise engages in any transaction relating to, any property
or interests in property blocked pursuant to the Executive Order, or (iii) engages in
or conspires to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.






	5.23	 	Private Offering
	 
	 	 	No form of general solicitation or general advertising was used by any Issuer Party or its
representatives in connection with the offer or sale of the Closing Notes. Assuming the
accuracy and validity of representations of the Purchasers in Section 6.4 hereof, no
registration of the Notes pursuant to the provisions of the Securities Act or the state
securities or “blue sky” laws shall be required in connection with the offer, sale or
issuance of the Notes pursuant to this Agreement. Each Issuer Party covenants and agrees
that neither it, nor anyone acting on its behalf, shall offer or sell the Notes or any other
security so as to require the registration of the Notes pursuant to the provisions of the
Securities Act or any state securities or “blue sky” laws, unless such Notes are so
registered.
	 
	5.24	 	Broker’s, Finder’s or Similar Fees
	 
	 	 	Except as set forth on Schedule 5.24, there are no brokerage commissions, finder’s
fees or similar fees or commissions payable in connection with the transactions contemplated
under any of the Transaction Documents or Related Transactions Documents based on any
agreement, arrangement or understanding with any Issuer Party.
	 
	5.25	 	Capitalization/Acquisition Documents
	 
	 	 	The Issuer Parties have delivered or made available to the Administrative Agent and each
Purchaser complete copies of the Capitalization/Acquisition Documents (including all
schedules, exhibits and disclosure letters referred to therein or delivered pursuant
thereto, if any) and all amendments thereto, waivers relating thereto and other side letters
or agreements affecting the terms thereof. None of such agreements and documents have been
amended or supplemented, nor have any of the provisions thereof been waived, except pursuant
to a written agreement or agreements which have heretofore been delivered or made available
to the Administrative Agent and each Purchaser.
	 
	6.	 	REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
	 
	 	 	Each Purchaser hereby represents and warrants (severally as to itself and not jointly) to
each Issuer Party, the Administrative Agent and to each other Purchaser as follows:
	 
	6.1	 	Authorization; No Contravention




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	 	 	The execution, delivery and performance by it of this Agreement and the consummation by it
of the transactions contemplated hereby, including, without limitation, the purchase of the
Closing Notes: (a) is within its power and authority and has been duly authorized by all
necessary action; (b) does not contravene the terms of its Organizational Documents or any
amendment thereof; and (c) shall not violate, conflict with or result in any breach or
contravention of any of its Contracts, or any order or decree directly relating to it except
for violations or conflicts that could not reasonably be expected to result in a material
adverse effect on the ability of such Purchaser to perform its obligations hereunder.
	 
	6.2	 	Binding Effect
	 
	 	 	This Agreement and the other Transaction Documents to which it is a party have been duly
executed and delivered by it and assuming that it is binding on and enforceable against the
Issuer Parties, this Agreement constitutes such Purchasers’ legal, valid and binding
obligation, enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors’ rights generally or by equitable principles relating to
enforceability.
	 
	6.3	 	No Legal Bar
	 
	 	 	The execution, delivery and performance of this Agreement by it shall not violate any
Requirement of Law applicable to it.
	 
	6.4	 	Purchase for Own Account
	 
	 	 	The Closing Notes to be acquired by it pursuant to this Agreement are being or shall be
acquired for its own account, solely for investment purposes, and with no present intention
of distributing or reselling such Closing Notes or any part thereof in violation of the
Securities Act without prejudice, however, to its right at all times to sell or otherwise
dispose of the Closing Notes, under an exemption from such registration available under the
Securities Act, and subject, nevertheless, to the disposition of its property being at all
times within its control, subject to the terms and conditions of the Transaction Documents.
If any Purchaser should in the future decide to dispose of the Closing Notes, such Purchaser
understands and agrees that it may do so only in compliance with the Securities Act and
applicable state securities laws, as then in effect, and subject to any applicable
provisions of each Transaction Document to which any Purchaser is a party or is bound. Each
Purchaser agrees to the imprinting of a legend on each of the Closing Notes to the following
effect: “THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
SUCH ACT AND SUCH LAWS.”




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	6.5	 	ERISA
	 
	 	 	No part of the funds used by it to purchase the Closing Notes hereunder constitutes assets
of any Plan or Multiemployer Plan.
	 
	6.6	 	Broker’s, Finder’s or Similar Fees
	 
	 	 	There are no brokerage commissions, finder’s fees or similar fees or commissions payable in
connection with the transactions contemplated hereby based on any agreement, arrangement or
understanding with it or any action taken by it.
	 
	6.7	 	Governmental Authorization; Third Party Consent
	 
	 	 	No approval, consent, compliance, exemption, authorization, or other action by, or notice
to, or filing with, any Governmental Authority or any other Person in respect of any
Requirement of Law, and no lapse of a waiting period under a Requirement of Law, is
necessary or required in connection with the execution, delivery or performance by it or
enforcement against it of this Agreement or the transactions contemplated hereby.
	 
	6.8	 	Accredited Investor
	 
	 	 	It is an “accredited investor” within the meaning of Rule 501(a) promulgated under the
Securities Act.
	 
	6.9	 	Anti-Money Laundering Representation
	 
	 	 	Such Purchaser is not aware of, has not been advised of, or has no reason to believe that
any facts or circumstances exist which would cause such Purchaser and/or through any
Purchaser, any Issuer Party to violate the Federal Bank Secrecy Act, as amended, in
connection with such Purchaser’s acquisition of the Closing Notes.
	 
	6.10	 	Information
	 
	 	 	Each Purchaser (a) has had an opportunity to ask questions and receive answers from each
Issuer Party regarding the terms and conditions of the offering of the Notes, (b) can bear
the economic risk of its investment in the Notes and (c) has such experience in business and
financial matters so as to enable it to understand the risks of and form an investment
decision with respect to its investment in the Notes. Neither such inquiries nor any other
due diligence investigations conducted by the Administrative Agent and the Purchasers or
their advisors, if any, or its representatives shall limit, modify, amend or affect any
Issuer Party’s representations and warranties contained in this Agreement and the
Administrative Agent’s and Purchasers’ right to rely thereon.




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	7.	 	INDEMNIFICATION
	 
	7.1	 	Indemnification
	 
	 	 	In addition to all other sums due hereunder or provided for in this Agreement, each Issuer
Party, jointly and severally, agrees to, indemnify and hold harmless the Administrative
Agent, the Purchasers and their respective Related Persons (each, an “Indemnified Party”) to
the fullest extent permitted by law from and against any and all losses, claims, damages,
costs, expenses (including, without limitation, reasonable fees, disbursements and other
charges of counsel incurred by an Indemnified Party in any action or proceeding between any
Issuer Party (or any Subsidiary of any Issuer Party) and such Indemnified Party (or
Indemnified Parties) or between an Indemnified Party (or Indemnified Parties) and any third
party or otherwise) or other liabilities, losses or diminution in value (collectively,
“Liabilities”) resulting from or arising out of any breach of any representation or warranty
of any Issuer Party or any legal, administrative or other actions (including actions brought
by the Purchasers or any equity holders of any Issuer Party or derivative actions brought by
any Person claiming through or in the name of any Issuer Party), proceedings or
investigations (whether formal or informal), or written threats thereof, based upon,
relating to or arising out of this Agreement, any other Transaction Document, the
transactions contemplated hereby or thereby or any Indemnified Party’s role herein or in the
transactions contemplated hereby or thereby; provided, however, that no Issuer Party shall
be obligated to indemnify an Indemnified Party hereunder for that portion of any Liabilities
that is finally determined by a court of competent jurisdiction to have been the result of
the gross negligence or willful misconduct of such Indemnified Party or the breach of a
Transaction Document by an Indemnified Party (not resulting from a breach or
misrepresentation by any Issuer Party). In connection with the obligation of the Issuer
Parties to indemnify for expenses as set forth above, each Issuer Party, jointly and
severally, further agrees, upon presentation of appropriate invoices containing reasonable
detail, promptly to (and in no event later than thirty (30) days after the presentation of
such invoice(s)) reimburse each Indemnified Party for all such reasonable expenses
(including fees, disbursements and other charges of counsel incurred by an Indemnified Party
in any action or proceeding between any Issuer Party or any Subsidiary or any thereof and
such Indemnified Party (or Indemnified Parties) or between an Indemnified Party (or
Indemnified Parties) and any third party or otherwise) as they are incurred by such
Indemnified Party; provided, however, that if an Indemnified Party is reimbursed hereunder
for any expenses, such reimbursement of expenses shall be refunded to the extent it is
finally judicially determined by a court of competent jurisdiction that the Liabilities in
question resulted primarily from (i) the willful misconduct or gross negligence of such
Indemnified Party or (ii) the breach by such Indemnified Party of any representation,
warranty, covenant or other agreement of such Indemnified Party contained in this Agreement
or any other Transaction Document.
	 
	7.2	 	Notification
	 
	 	 	Each Indemnified Party under this Section 7 shall, promptly after the receipt of
notice of the commencement of any action, investigation, claim or other proceeding against
such Indemnified Party in respect of which indemnity may be sought from the Issuer Parties




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	 	 	under this Section 7, notify the Company in writing of the commencement thereof.
The failure of any Indemnified Party to so notify the Company of any such action shall not
relieve any Issuer Party from any liability that it may have to such Indemnified Party
unless, and only to the extent that, such omission has a material adverse effect on such
Issuer Party, including a material adverse effect on the ability of such Issuer Party to
conduct the defense. In case any such action, claim or other proceeding shall be brought
against any Indemnified Party and it shall notify the Company of the commencement thereof,
the Issuer Parties shall be entitled to assume the defense thereof at their own expense,
with counsel reasonably satisfactory to such Indemnified Party in its reasonable judgment;
provided, however, that any Indemnified Party may, at its own expense, retain separate
counsel to participate in such defense. Notwithstanding the foregoing, in any action, claim
or proceeding in which an Issuer Party on the one hand, and an Indemnified Party, on the
other hand, is, or is reasonably likely to become, a party, such Indemnified Party shall
have the right to employ separate counsel at the expense of the Issuer Parties and to
control its own defense of such action, claim or proceeding if, in the reasonable opinion of
counsel to such Indemnified Party, a conflict or potential conflict exists between any
Issuer Party, on the one hand, and such Indemnified Party, on the other hand, that would
make such separate representation advisable. Each Issuer Party agrees that it shall not,
without the prior written consent of the Indemnified Parties, settle, compromise or consent
to the entry of any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated hereby (if any Indemnified Party is a party thereto or
has been actually threatened to be made a party thereto) unless such settlement, compromise
or consent includes an unconditional release of the Purchasers, the Administrative Agent and
each other Indemnified Party from all liability arising or that may arise out of such claim,
action or proceeding. No Issuer Party shall be liable for any settlement of any claim,
action or proceeding affected against an Indemnified Party without its written consent,
which consent shall not be unreasonably withheld. The rights accorded to Indemnified
Parties hereunder shall be in addition to any rights that any Indemnified Party may have at
common law, by separate agreement or otherwise.
	 
	7.3	 	Survival of Indemnification Provisions
	 
	 	 	The provisions of this Section 7 shall survive the term of this Agreement and
repayment of the Obligations.
	 
	8.	 	COVENANTS
	 
	8.1	 	Affirmative Covenants
	 
	 	 	Until the payment in full in cash of all the Obligations (including, without limitation, all
expenses and amounts due at such time in respect of indemnity obligations under Section
7), each Issuer Party will and will cause each of its Subsidiaries to:






	 	(a)	 	Financial Statements, Reports, etc
	 
	 	 	 	Furnish to the Administrative Agent and each Purchaser:




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	 	(i)	 	Annual Reports. As soon as available and in any event
within 105 days after the end of each Fiscal Year, beginning with the Fiscal
Year ending December 31, 2006, (1) the consolidated balance sheet of Holdings
as of the end of such Fiscal Year and related consolidated statements of
income, cash flows and stockholders’ equity for such Fiscal Year, in
comparative form with such financial statements as of the end of, and for, the
preceding Fiscal Year, and notes thereto (including a note with a consolidating
balance sheet and statements of income and cash flows separating out Holdings,
the Company and the Subsidiaries), accompanied by an opinion of Ernst & Young
LLP or other independent public accountants of recognized national standing
reasonably satisfactory to the Administrative Agent (which opinion shall not be
qualified as to scope or contain any going concern or other qualification),
stating that such financial statements fairly present, in all material
respects, the consolidated financial condition, results of operations and cash
flows of Holdings as of the dates and for the periods specified in accordance
with GAAP, (2) a management report in a form reasonably satisfactory to the
Administrative Agent setting forth statement of income items and Consolidated
EBITDA of Holdings for such Fiscal Year, showing variance, by dollar amount and
percentage, from amounts for the previous Fiscal Year and budgeted amounts and
(3) a narrative report and management’s discussion and analysis, in a form
reasonably satisfactory to the Administrative Agent, of the financial condition
and results of operations of Holdings for such Fiscal Year, as compared to
amounts for the previous Fiscal Year and budgeted amounts;
	 
	 	(ii)	 	Quarterly Reports. As soon as available and in any
event within 45 days after the end of each of the first three Fiscal Quarters
of each Fiscal Year, beginning with the Fiscal Quarter ending June 30, 2007
(provided that the following items delivered with respect to the Fiscal Quarter
ending June 30, 2007 shall also include the information for the Fiscal Quarter
ending March 31, 2007), (1) the consolidated balance sheet of Holdings as of
the end of such Fiscal Quarter and related consolidated statements of income
and cash flows for such Fiscal Quarter and for the then elapsed portion of the
Fiscal Year, in comparative form with the consolidated statements of income and
cash flows for the comparable periods in the previous Fiscal Year, and notes
thereto (including a note with a consolidating balance sheet and statements of
income and cash flows separating out Holdings, the Company and the
Subsidiaries), accompanied by a certificate of a Financial Officer stating that
such financial statements fairly present, in all material respects, the
consolidated financial condition, results of operations and cash flows of
Holdings as of the date and for the periods specified in accordance with GAAP
consistently applied, and on a basis consistent with audited financial
statements referred to in clause (i) of this Section 8.1(a), subject to
normal year-end audit adjustments, (2) a management report in a form reasonably
satisfactory to the Administrative Agent setting forth statement of income
items and Consolidated EBITDA of Holdings for such Fiscal Quarter and for the
then elapsed portion of the




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	 	 	 	Fiscal Year, showing variance, by dollar amount and percentage, from amounts
for the comparable periods in the previous Fiscal Year and budgeted amounts
and (3) a narrative report and management’s discussion and analysis of the
financial condition and results of operations for such Fiscal Quarter and
the then elapsed portion of the Fiscal Year, as compared to the comparable
periods in the previous Fiscal Year and budgeted amounts;
	 
	 	(iii)	 	Monthly Reports. As soon as available and in any
event within 30 days after the end of each calendar month beginning with the
month ending March 31, 2007 (provided that the following items delivered with
respect to the month ending March 31, 2007 shall also include the information
for the months ending January 31, 2007 and February 28, 2007), a calculation of
Consolidated EBITDA for such month, the consolidated balance sheet of Holdings
as of the end of such month and related consolidated statements of income and
cash flows for such month and for the then elapsed portion of the Fiscal Year,
in comparative form with (i) the budgets provided in accordance with Section
8.1(a)(viii) and (ii) the consolidated statements of income and cash flows for
the comparable periods in the previous Fiscal Year, and notes thereto
(including a note with a consolidating balance sheet and statements of income
and cash flows separating out Holdings, the Company and the Subsidiaries). For
the avoidance of doubt, delivery of any of the financial statements set forth
in Section 8.1(a)(i) and (ii) above, shall not satisfy the
requirements set forth in this Section 8.1(a)(iii);
	 
	 	(iv)	 	Financial Officer’s Certificate. (1)  Concurrently
with any delivery of financial statements under Section 8.1(a)(i) or
(ii), a Compliance Certificate (A) certifying that no Default has
occurred or, if such a Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with respect
thereto, (B) beginning with financial statement delivered for fiscal quarter
ended March 31, 2009, setting forth computations in reasonable detail
satisfactory to the Administrative Agent demonstrating compliance with the
covenants contained in 8.3 (including the aggregate amount of Excluded
Issuances for such period and the uses therefor) and (C) showing a
reconciliation of Consolidated EBITDA to the net income set forth on the
statement of income; and (2) concurrently with any delivery of financial
statements under Section 8.1(a)(i) above, beginning with the Fiscal
Year ending December 31, 2006, a report of the accounting firm opining on or
certifying such financial statements stating that in the course of its regular
audit of the financial statements of Holdings and its Subsidiaries, which audit
was conducted in accordance with generally accepted auditing standards, such
accounting firm obtained no knowledge that any Default insofar as it relates to
financial or accounting matters has occurred or, if in the opinion of such
accounting firm such a Default has occurred, specifying the nature and extent
thereof;




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	 	(v)	 	Reserved
	 
	 	(vi)	 	Reserved
	 
	 	(vii)	 	Management Letters. Promptly after the receipt
thereof by any Issuer Party, a copy of any “management letter” received by any
such Person from its certified public accountants and the management’s
responses thereto;
	 
	 	(viii)	 	Budgets. Within 30 days after the beginning of each Fiscal Year, a
budget for the Company and its Subsidiaries in form reasonably satisfactory to
the Administrative Agent, but to include balance sheets, statements of income
and sources and uses of cash, for each month of such Fiscal Year prepared in
detail, prepared in summary form, in each case, with appropriate presentation
and discussion of the principal assumptions upon which such budget is based,
accompanied by the statement of a Financial Officer of the Company to the
effect that the budget of the Company and its Subsidiaries is a reasonable
estimate for the periods covered thereby and, promptly when available, any
significant revisions of such budget;
	 
	 	(ix)	 	Organization. To the extent there has been any changes
to the organizational chart set forth in Schedule 5.7(b), concurrently
with any delivery of financial statements under Section 8.1(a)(i) or
(ii), an accurate organizational chart as contemplated by
Section 5.7(b);
	 
	 	(x)	 	Organizational Documents. Promptly provide copies of
any Organizational Documents that have been amended or modified in accordance
with the terms hereof and deliver a copy of any notice of default given or
received by any Issuer Party under any Organizational Document within 15 days
after such Issuer Party gives or receives such notice;
	 
	 	(xi)	 	Other Information. Promptly, from time to time, such
other information regarding the operations, business affairs and financial
condition of any Issuer Party, or compliance with the terms of any Transaction
Document, as the Administrative Agent or any Purchaser may reasonably request;
provided that the Issuer Parties will furnish promptly to the Administrative
Agent and each of the Purchasers the name of any Person that becomes an Equity
Investor after the Closing Date whether or not requested by the Administrative
Agent or any Purchaser; and
	 
	 	(xii)	 	Intent to Cure. With respect to each Test Period for
which a Cure Right will be exercised, on the date the financial statements
pursuant to Section 8.1(a)(i) or (ii) have been, or should have
been, delivered for the applicable fiscal period, the Company shall deliver
together with such financial statements an Officer’s Certificate of a Financial
Officer of the Company containing a computation in reasonable detail of the
applicable




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	 	 	 	Event of Default and a notice of its intent to cure (a “Notice of Intent to
Cure”) such Event of Default through the issuance of Permitted Cure
Securities as contemplated pursuant to Section 9.6.






	 	(b)	 	Litigation and Other Notices
	 
	 	 	 	Furnish to the Administrative Agent and each Purchaser written notice of the
following promptly (and, in any event, within three Business Days of the occurrence
thereof):






	 	(i)	 	any Default, specifying the nature and extent thereof and the
corrective action (if any) taken or proposed to be taken with respect thereto;
	 
	 	(ii)	 	the filing or commencement of, or any written threat or notice
of intention of any Person to file or commence, any action, suit, litigation,
investigation or proceeding, whether at law or in equity by or before any
Governmental Authority, (i) against any Issuer Party or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse Effect or
(ii) with respect to any Transaction Document;
	 
	 	(iii)	 	any development that has resulted in, or, within ninety (90)
days, could reasonably be expected to result in a Material Adverse Effect; and
	 
	 	(iv)	 	the occurrence of a Casualty Event in excess of $250,000.






	 	(c)	 	Existence; Businesses and Properties






	 	(i)	 	Do or cause to be done all things necessary to preserve, renew
and maintain in full force and effect its legal existence, except as otherwise
expressly permitted under Section 8.2(e) or Section 8.2(f) or,
in the case of any Subsidiary, where the failure to perform such obligations,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
	 
	 	(ii)	 	Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights, licenses,
permits, privileges, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business; maintain
and operate such business in substantially the manner in which it is presently
conducted and operated; comply with all applicable Requirements of Law
(including any and all zoning, building, Environmental Law, ordinance, code or
approval or any building permits or any restrictions of record or agreements
affecting the Real Property) and decrees and orders of any Governmental
Authority, whether now in effect or hereafter enacted, except where the failure
to comply, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect; pay and perform its material
obligations under all Transaction Documents and Related Transaction Documents;
and at all times maintain, preserve and




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	 	 	 	protect all property material to the conduct of such business and keep such
property in working order; provided that nothing in this Section
8.1(c)(ii) shall prevent (1) sales of property, consolidations or
mergers by or involving any Issuer Party in accordance with Section
8.2(e) or Section 8.2(f); (2) the withdrawal by any Issuer Party
of its qualification as a foreign corporation in any jurisdiction where such
withdrawal, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect; or (3) the abandonment by
any Issuer Party of any rights, franchises, licenses, trademarks, trade
names, copyrights or patents that such Person reasonably determines are not
useful to its business or no longer commercially desirable.






	 	(d)	 	Insurance






	 	(i)	 	Generally. Keep its insurable property adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks as is customary with
companies in the same or similar businesses operating in the same or similar
locations, including insurance with respect to Mortgaged Properties and other
properties material to the business of the Issuer Parties against such
casualties and contingencies and of such types and in such amounts with such
deductibles as is customary in the case of similar businesses operating in the
same or similar locations, including, if applicable (1) physical hazard
insurance on an “all risk” basis, (2) commercial general liability against
claims for bodily injury, death or property damage covering any and all
insurable claims, (3) explosion insurance in respect of any boilers, machinery
or similar apparatus constituting Collateral, (4) business interruption
insurance and (5) worker’s compensation insurance and such other insurance as
may be required by any Requirement of Law.
	 
	 	(ii)	 	Reserved.
	 
	 	(iii)	 	Notice to Agents. Notify the Administrative Agent and
each Purchaser immediately whenever any separate insurance concurrent in form
or contributing in the event of loss with that required to be maintained under
this Section 8.1(d) is taken out by any Issuer Party; and promptly
deliver to the Administrative Agent and each Purchaser a duplicate original
copy of such policy or policies.
	 
	 	(iv)	 	[Reserved].
	 
	 	(v)	 	[Reserved].
	 
	 	(vi)	 	No Termination Actions. No Issuer Party shall take any
action that is reasonably likely to be the basis for termination, revocation or
denial of any insurance coverage required to be maintained hereunder or that
could be the basis for a defense to any claim under any Insurance Policy, and




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	 	 	 	each Issuer Party shall otherwise comply in all material respects with all
Insurance Requirements; provided, however, that each Issuer Party may, at
its own expense and after written notice to the Administrative Agent and
each of the Purchasers, (1) contest the applicability or enforceability of
any such Insurance Requirements by appropriate legal proceedings, the
prosecution of which does not constitute a basis for cancellation or
revocation of any insurance coverage required under this Section
8.1(d) or (2) cause the Insurance Policy containing any such Insurance
Requirement to be replaced by a new policy complying with the provisions of
this Section 8.1(d).






	 	(e)	 	Obligations and Taxes






	 	(i)	 	Payment of Obligations. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all Taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, services, materials and supplies or otherwise that, if
unpaid, might give rise to a Lien other than a Permitted Lien upon such
properties or any part thereof; provided that such payment and discharge shall
not be required with respect to any such Tax, assessment, charge, levy or claim
so long as (x)(1) the validity or amount thereof shall be contested in good
faith by appropriate proceedings timely instituted and diligently conducted and
the applicable Issuer Party shall have set aside on its books adequate reserves
or other appropriate provisions with respect thereto in accordance with GAAP,
(2) such contest operates to suspend collection of the contested obligation,
Taxes, assessment or charge and enforcement of a Lien other than a Permitted
Lien and (3) in the case of Collateral, the applicable Issuer Party shall have
otherwise complied with the Contested Asset Lien Conditions and (y) the failure
to pay could not reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
	 
	 	(ii)	 	Filing of Returns. Timely and correctly file all
material Tax Returns required to be filed by it. Withhold, collect and remit
all Taxes that it is required to collect, withhold or remit.
	 
	 	(iii)	 	Tax Shelter Reporting. The Company does not intend to
treat the issuance of the Closing Notes as being a “reportable transaction”
within the meaning of Treasury Regulation Section 1.6011-4. In the event the
Company determines to take any action inconsistent with such intention, it will
promptly notify the Administrative Agent and each Purchaser thereof.






	 	(f)	 	Employee Benefits




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(i) Except where failure to do so could not reasonably be expected to have a
Material Adverse Effect, comply in all material respects with the applicable
provisions of ERISA and the Code with respect to employment plans and (ii) furnish
to the Administrative Agent and each Purchaser (1) as soon as possible after, and in
any event within 5 days after any Responsible Officer of any Issuer Party or any
ERISA Affiliates of any Issuer Party knows or has reason to know that, any ERISA
Event has occurred that, alone or together with any other ERISA Event could
reasonably be expected to result in liability of the Issuer Parties or any of their
ERISA Affiliates in an aggregate amount exceeding $2.5 million, a statement of a
Financial Officer of the Company setting forth details as to such ERISA Event and
the action, if any, that the Issuer Parties propose to take with respect thereto,
and (2) upon request by the Administrative Agent or any Purchaser, copies of (A)
each Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by any Issuer Party or any ERISA Affiliate with the Internal Revenue Service
with respect to each Plan; (B) the most recent actuarial valuation report for each
Plan; (C) all notices received by any Issuer Party or any ERISA Affiliate from a
Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and
(D) such other documents or governmental reports or filings relating to any Plan (or
employee benefit plan sponsored or contributed to by any Issuer Party) as the
Administrative Agent or the Required Note-Holders shall reasonably request.




	 	(g)	 	Maintaining Records; Access to Properties and Inspections; Annual
Meetings






	 	(i)	 	Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law are made of
all dealings and transactions in relation to its business and activities. Upon
reasonable notice, each Issuer Party will permit any representatives designated
by the Administrative Agent and any Purchaser to visit and inspect the
financial records and the property of such Issuer Party at reasonable times and
to make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or such Purchaser to
discuss the affairs, finances, accounts and condition of any Issuer Party with
the officers and employees thereof and advisors therefor (including independent
accountants).
	 
	 	(ii)	 	Within 45 days after the end of each Fiscal Quarter of the
Issuer Parties, at the request of the Administrative Agent or Required
Note-Holders, hold a conference call (at a mutually agreeable time, the costs
of such call to be paid by the Company) with all Purchasers who choose to
participate in such call, on which call shall be reviewed the financial results
of the previous Fiscal Quarter and the financial condition of the Issuer
Parties and the budget presented for the current Fiscal Quarter of the Issuer
Parties.






	 	(h)	 	Use of Proceeds




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	 	 	 	Use the proceeds of the issuance of the Closing Notes only for the purposes set
forth in Section 5.12.
	 
	 	(i)	 	Compliance with Environmental Laws; Environmental Reports






	 	(A)	 	Comply, and cause all lessees and other Persons occupying Real
Property owned, operated or leased by any Issuer Party to comply, in all
material respects with all Environmental Laws and Environmental Permits
applicable to its operations and Real Property; obtain and renew all material
Environmental Permits applicable to its operations and Real Property; and
conduct all Responses required by, and in accordance with, Environmental Laws;
provided that no Issuer Party shall be required to undertake any Response to
the extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect
to such circumstances in accordance with GAAP.
	 
	 	(B)	 	If a Default caused by reason of a breach of Section
5.18 or Section 8.1(i)(A) shall have occurred and be continuing for
more than 20 days without the Issuer Parties commencing activities reasonably
likely to cure such Default in accordance with Environmental Laws, at the
written request of the Administrative Agent or the Required Note-Holders
through the Administrative Agent, provide to the Purchasers within 60 days
after such request, at the expense of the Company, an environmental assessment
report regarding the matters which are the subject of such Default, including,
where appropriate, soil and/or groundwater sampling, prepared by an
environmental consulting firm and, in the form and substance, reasonably
acceptable to the Administrative Agent and indicating the presence or absence
of Hazardous Materials and the estimated cost of any compliance or Response to
address them.






	 	(j)	 	Interest Rate Protection
	 
	 	 	 	The Company shall enter into, and maintain, Hedging Agreements in accordance with
the terms of the Senior Credit Agreement.
	 
	 	(k)	 	Additional Guarantors
	 
	 	 	 	With respect to any Person that is or becomes a Subsidiary after the Closing Date,
promptly (and in any event within 30 days after such Person becomes a Subsidiary)
cause such new Subsidiary to execute a Subsidiary Guaranty as set forth in
Exhibit E. Notwithstanding the foregoing, no Foreign Subsidiary shall be
required to take the actions specified above if doing so would constitute an
investment of earnings in United States property under Section 956 (or a successor
provision) of the Code, which investment would or could reasonably be expected to
trigger an increase in the net income of a United States shareholder of such
Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as




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	 	 	 	reasonably determined by the Company; provided that this exception shall not apply
to (i) Voting Stock of any Subsidiary which is a first-tier controlled foreign
corporation (as defined in Section 957(a) of the Code) representing 66% of the total
voting power of all outstanding Voting Stock of such Subsidiary and (ii) 100% of the
Equity Interests not constituting Voting Stock of any such Subsidiary, except that
any such Equity Interests constituting “stock entitled to vote” within the meaning
of Treasury Regulation Section 1.956-2(c)(2) shall be treated as Voting Stock for
purposes of this Section 8.1(k).
	 
	 	(l)	 	Further Assurances
	 
	 	 	 	Upon the exercise by the Administrative Agent or any Purchaser of any power, right,
privilege or remedy pursuant to any Transaction Document which requires any consent,
approval, registration, qualification or authorization of any Governmental Authority
execute and deliver all applications, certifications, instruments and other
documents and papers that the Administrative Agent or such Purchaser may require.
	 
	 	(m)	 	Changes In Information 
	 
	 	 	 	Not effect any change (i) in any Issuer Party’s legal name, (ii) in the location of
any Issuer Party’s chief executive office, (iii) in any Issuer Party’s identity or
organizational structure, (iv) in any Issuer Party’s Federal Taxpayer Identification
Number or organizational identification number, if any, or (v) in any Issuer Party’s
jurisdiction of organization (in each case, including by merging with or into any
other entity, reorganizing, dissolving, liquidating, reorganizing or organizing in
any other jurisdiction), until it shall have given the Administrative Agent and each
Purchaser not less than 30 days’ prior written notice (in the form of an Officer’s
Certificate), or such lesser notice period agreed to by the Administrative Agent, of
its intention so to do, clearly describing such change and providing such other
information in connection therewith as the Administrative Agent or the Required
Note-Holders may reasonably request. Each Issuer Party agrees to promptly provide
the Administrative Agent and each Purchaser with certified Organizational Documents
reflecting any of the changes described in the preceding sentence. Each Issuer
Party also agrees to promptly notify the Administrative Agent and each Purchaser of
any change in the location of any office in which it maintains books or records
owned by it or any office or facility at which its assets are located.
	 
	 	(n)	 	Affirmative Covenants with Respect to Leases
	 
	 	 	 	With respect to each Lease for Real Property, the respective Issuer Party shall, if
it is the landlord, perform all the obligations imposed upon the landlord under such
Lease and, if it is the tenant, enforce all of the tenant’s obligations thereunder,
except where the failure to so perform or enforce could not reasonably be expected
to result in a Property Material Adverse Effect.




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	 	(o)	 	Board Rights






	 	(i)	 	For so long as the Obligations remain unpaid and unsatisfied,
each Issuer Party shall give a representative designated by the Administrative
Agent (the “Observer”) written notice of each meeting of the Board of
Directors of such Issuer Party, at the same time and in the same manner as
notice is given to the directors on the Board of Directors of such Issuer Party
and such Issuer Party shall permit the Observer to attend, as an observer, all
such meetings. The Issuer Parties shall reimburse the Observer for the travel
and other related expenses that s/he reasonably incurs in connection with
her/his activities as an observer pursuant to this Section 8.1(o)(i).
The Observer shall be entitled to receive all written materials and other
information (including, without limitation, copies of meeting minutes and
agenda) given to the Board of Directors of each Issuer Party in connection with
such meetings at the same time such materials and information are given to the
Board of Directors of such Issuer Party. The Purchasers for themselves and on
behalf of the Observer agree that the confidentiality provisions of each Issuer
Party’s Organizational Documents shall apply to all meetings of its Board of
Directors and to all confidential materials and information received by the
Observer. Notwithstanding the foregoing, in the event that, in the reasonable
judgment of each Issuer Party and the Purchasers, the attendance of the
Observer at a meeting or any portion thereof of the Board of Directors of such
Issuer Party and/or the receipt of any materials or information would create a
conflict of interest for the Purchasers in their capacity as “Purchasers” under
this Agreement, the Observer shall, as the case may be, abstain from
participating in any such meeting or portion thereof or not be entitled to
receipt of such materials and other information.
	 
	 	(ii)	 	Each Issuer Party shall cause its Board of Directors to meet
not less often than quarterly.






	 	(p)	 	Amendments to Senior Documents
	 
	 	 	 	Upon the Purchasers’ request, simultaneously with the execution of an amendment,
waiver, modification, supplement or other agreement by the Issuer Parties in favor
of the Senior Agent and the Senior Lenders the effect of which amends or modifies
the representations, warranties, covenants or events of default in the Senior
Documents or accelerates the maturity date of the loans made under the Senior
Documents, the Issuer Parties shall execute and deliver to the Purchasers a
corresponding amendment, waiver, modification, supplement or other agreement in
favor of the Purchasers with respect to the Transaction Documents which amendment or
other agreement shall maintain any applicable “cushion” between the Senior Documents
and the Transaction Documents.
	 
	 	(q)	 	Subordination Agreement




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	 	 	 	From and after execution and delivery thereof by each Issuer Party, such Issuer
Party shall perform and observe its obligations under any Subordination Agreement,
if any.
	 
	 	(r)	 	Enforcement of Rights
	 
	 	 	 	Holdings shall enforce all of its rights under the Acquisition Documents, including,
but not limited to, all indemnification rights and pursue all remedies available to
it with diligence and in good faith in connection with the enforcement of any such
rights.
	 
	 	(s)	 	Substitute Notes 
	 
	 	 	 	Promptly following the consummation of the Merger, Target shall execute and deliver
to each Purchaser promissory notes, in the form attached hereto as Exhibit
H, which promissory notes shall be given in substitution for and replacement of
those certain promissory notes executed by the Company on the Closing Date in favor
of each Purchaser. Upon delivery to the Purchasers of such promissory notes, each
Purchaser shall surrender the original promissory notes delivered by the Company on
the Closing Date.






	 	8.2	 	Negative Covenants
	 
	 	 	 	Until the payment in full in cash of all the Obligations including, without limitation, all
expenses and amounts due at such time in respect of indemnity obligations under Section
7, no Issuer Party will, nor will it cause or permit any Subsidiaries to:






	 	(a)	 	Indebtedness
	 
	 	 	 	Incur, create, assume or permit to exist, directly or indirectly, any Indebtedness,
except






	 	(i)	 	Indebtedness incurred under this Agreement and the other
Transaction Documents;
	 
	 	(ii)	 	(1) Indebtedness outstanding on the Closing Date and listed on
Schedule 8.2(a)(ii), and (2) refinancings or renewals thereof; provided
that (A) any such refinancing Indebtedness is in an aggregate principal amount
not greater than the aggregate principal amount of the Indebtedness being
renewed or refinanced, plus the amount of any premiums required to be paid
thereon and reasonable fees and expenses associated therewith, (B) such
refinancing Indebtedness has a later or equal final maturity and longer or
equal weighted average life than the Indebtedness being renewed or refinanced
and (C) the covenants, events of default, subordination and other provisions
thereof (including any guarantees thereof) shall be, in the aggregate, no less
favorable to the Purchasers than those contained in the Indebtedness being
renewed or refinanced;




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	 	(iii)	 	Indebtedness incurred under the Senior Credit Agreement in an
aggregate amount not to exceed $158.0 million at any time outstanding
minus the amount of (1) any principal amortization payments on term
loan borrowings and (2) permanent reductions in the revolving loan commitment
under the Senior Credit Agreement; provided, however the Indebtedness incurred
under the Senior Credit Agreement or Indebtedness incurred in connection with
any refinancing or replacement of the Senior Debt after the date hereof may be
increased to an amount not to exceed $233.0 million minus the amount of
(1) any principal amortization payments on term loan borrowings and (2)
permanent reductions in the revolving loan commitment under the Senior Credit
Agreement, in each case so long as the Total Leverage Ratio for the 4 Fiscal
Quarters most recently ended after giving effect to any such increase (as if
such increase had occurred during such 4 Fiscal Quarter Period) does not exceed
8.0 to 1.0; provided that, in the case of any replacement or refinancing after
the date hereof, the yield on the replaced or refinanced Indebtedness shall not
be greater than the yield on the Indebtedness being replaced or refinanced. If
in connection with a Permitted Acquisition, (x) the Issuer Parties request that
the Required Note-Holders consent to an increase of such $233.0 million amount,
which consent shall be at the sole discretion of the Required Note-Holders, (y)
the Total Leverage Ratio for the 4 Fiscal Quarters most recently ended after
giving effect to any such proposed increase (as if such proposed increase had
occurred during such 4 Fiscal Quarter Period) does not exceed 8.0 to 1.0 and
(z) the Required Note-Holders refuse to grant such consent, then the Issuer
Parties may, notwithstanding any other terms contained in the Transaction
Documents, (A) prepay the Notes held by any non-consenting Purchaser without
penalty or premium in accordance with the terms of the Notes or (B) upon notice
to each non-consenting Purchaser and the Administrative Agent, require such
non-consenting Purchaser to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 12.3), all of its interests, rights and obligations under
this Agreement and the other Transaction Documents and such assignee shall
assume such obligations (which assignee may be another Purchaser, if a
Purchaser accepts such assignment); provided, that (i) the Administrative Agent
shall have been paid the processing and recordation fee specified in
Section 12.3(d); (ii) such non-consenting Purchaser shall have received
payment of an amount equal to the outstanding principal of its Notes, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder
and under the other Transaction Documents (other than prepayment penalties);
and (iii) such assignment does not conflict with applicable Requirements of
Law.
	 
	 	(iv)	 	Indebtedness under Hedging Obligations with respect to interest
rates, foreign currency exchange rates or commodity prices, in each case not
entered into for speculative purposes; provided that if such Hedging
Obligations relate to interest rates, (1) such Hedging Obligations relate to




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	 	 	 	payment obligations on Indebtedness otherwise permitted to be incurred by
the Transaction Documents and (2) the notional principal amount of such
Hedging Obligations at the time incurred does not exceed the principal
amount of the Indebtedness to which such Hedging Obligations relate;
	 
	 	(v)	 	Indebtedness permitted by Sections 8.2(d)(vi) and
(ix);
	 
	 	(vi)	 	Indebtedness in respect of Purchase Money Obligations and
Capital Lease Obligations, and refinancings or renewals thereof, in an
aggregate amount not to exceed $5.0 million at any time outstanding;
	 
	 	(vii)	 	Indebtedness in respect of bid, performance or surety bonds,
workers’ compensation claims, self-insurance obligations and bankers
acceptances issued for the account of any Issuer Party in the ordinary course
of business, including guarantees or obligations of any Issuer Party with
respect to letters of credit supporting such bid, performance or surety bonds,
workers’ compensation claims, self-insurance obligations and bankers
acceptances (in each case other than for an obligation for money borrowed);
	 
	 	(viii)	 	Contingent Obligations of any Issuer Party in respect of Indebtedness
otherwise permitted under this Section 8.2(a);
	 
	 	(ix)	 	Indebtedness arising from netting services, the honoring by a
bank or other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, however, that
such Indebtedness is extinguished within twenty Business Days of incurrence;
	 
	 	(x)	 	Indebtedness arising in connection with endorsement of
instruments for deposit in the ordinary course of business;
	 
	 	(xi)	 	other Indebtedness incurred or assumed in connection with a
Permitted Acquisition in an aggregate amount not to exceed $5.0 million;
	 
	 	(xii)	 	Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or from
guaranties or letters of credit, surety bonds or performance bonds securing the
performance of Holdings or any of its Subsidiaries pursuant to such agreements,
in connection with Permitted Acquisitions, Asset Sales or any other permitted
dispositions of any business, assets or Subsidiary of Holdings or any of its
Subsidiaries;
	 
	 	(xiii)	 	Indebtedness of any Subsidiary to the Company or any Subsidiary Guarantor or
of the Company to any Subsidiary Guarantor;




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	 	(xiv)	 	Indebtedness consisting of Attributable Indebtedness incurred
in connection with any transactions permitted by Section 8.2(f)(vi);
and
	 
	 	(xv)	 	unsecured Indebtedness of any Issuer Party in an aggregate
amount not to exceed $5.0 million at any time outstanding.






	 	(b)	 	Liens
	 
	 	 	 	Create, incur, assume or permit to exist, directly or indirectly, any Lien on any
property now owned or hereafter acquired by it or on any income or revenues or
rights in respect of any thereof, except the following (collectively, the “Permitted
Liens”):






	 	(i)	 	inchoate Liens for taxes, assessments or governmental charges
or levies not yet due and payable or delinquent and Liens for taxes,
assessments or governmental charges or levies, which (a) are being contested in
good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP, which proceedings (or orders entered in
connection with such proceedings) have the effect of preventing the forfeiture
or sale of the property subject to any such Lien, and (b) in the case of any
such charge or claim which has or may become a Lien against any assets of any
Issuer Party, such Lien and the contest thereof shall satisfy the Contested
Asset Lien Conditions;
	 
	 	(ii)	 	Liens in respect of property of any Issuer Party imposed by
Requirements of Law, which were incurred in the ordinary course of business and
do not secure Indebtedness for borrowed money, such as carriers’,
warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s
and mechanics’ Liens and other similar Liens arising in the ordinary course of
business, and (a) which do not in the aggregate materially detract from the
value of the property of the Issuer Parties, taken as a whole, and do not
materially impair the use thereof in the operation of the business of the
Issuer Parties, taken as a whole, (b) which, if they secure obligations that
are then due and unpaid, are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance
with GAAP, which proceedings (or orders entered in connection with such
proceedings) have the effect of preventing the forfeiture or sale of the
property subject to any such Lien, and (c) in the case of any such Lien which
has or may become a Lien against any assets of any Issuer Party, such Lien and
the contest thereof shall satisfy the Contested Asset Lien Conditions;
	 
	 	(iii)	 	any Lien in existence on the Closing Date and set forth on
Schedule 8.2(b)(iii) and any Lien granted as a replacement or
substitute therefor; provided that any such replacement or substitute Lien (i)
except as permitted by Section 8.2(a)(ii)(2)(A), does not secure an
aggregate amount of Indebtedness, if any, greater than that secured on the
Closing




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	 	 	 	Date and (ii) does not encumber any property other than the property subject
thereto on the Closing Date (any such Lien, an “Existing Lien”);
	 
	 	(iv)	 	easements, rights-of-way, restrictions (including zoning
restrictions), covenants, licenses, encroachments, protrusions and other
similar charges or encumbrances, and minor title deficiencies on or with
respect to any Real Property, in each case whether now or hereafter in
existence, not (a) securing Indebtedness, (b) individually or in the aggregate
materially impairing the value or marketability of such Real Property or (c)
individually or in the aggregate materially interfering with the ordinary
conduct of the business of the Issuer Parties at such Real Property;
	 
	 	(v)	 	Liens arising out of judgments, attachments or awards not
resulting in a Default;
	 
	 	(vi)	 	Liens (other than any Lien imposed by ERISA) (x) imposed by
Requirements of Law or deposits made in connection therewith in the ordinary
course of business in connection with workers’ compensation, unemployment
insurance and other types of social security legislation, (y) incurred in the
ordinary course of business to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money) or (z) arising by virtue of
deposits made in the ordinary course of business to secure liability for
premiums to insurance carriers; provided that (i) with respect to clauses (x),
(y) and (z) of this paragraph (vi), such Liens are for amounts not yet due and
payable or delinquent or, to the extent such amounts are so due and payable,
such amounts are being contested in good faith by appropriate proceedings for
which adequate reserves have been established in accordance with GAAP, which
proceedings for orders entered in connection with such proceedings have the
effect of preventing the forfeiture or sale of the property subject to any such
Lien, (ii) to the extent such Liens are not imposed by Requirements of Law,
such Liens shall in no event encumber any property other than cash and Cash
Equivalents and (iii) in the case of any such Lien against any assets of any
Issuer Party, such Lien and the contest thereof shall satisfy the Contested
Asset Lien Conditions;
	 
	 	(vii)	 	Leases of the properties of any Issuer Party, in each case
entered into in the ordinary course of such Issuer Party’s business so long as
such Leases (other than with respect to Leases of Real Property) are
subordinate in all respects to the Liens granted and evidenced by the Senior
Documents and do not, individually or in the aggregate, (a) interfere in any
material respect with the ordinary conduct of the business of any Issuer Party,
or (b) materially impair the use (for its intended purposes) or the value of
the property subject thereto;




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	 	(viii)	 	Liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by any Issuer Party in
the ordinary course of business in accordance with the past practices of such
Issuer Party;
	 
	 	(ix)	 	Liens securing Indebtedness incurred pursuant to
Section 8.2(a)(vi); provided that any such Liens attach only to the
property being financed pursuant to such Indebtedness and do not encumber any
other property of any Issuer Party;
	 
	 	(x)	 	bankers’ Liens, rights of setoff and other similar Liens
existing solely with respect to cash and Cash Equivalents on deposit in one or
more accounts maintained by any Issuer Party, in each case granted in the
ordinary course of business in favor of the bank or banks with which such
accounts are maintained, securing amounts owing to such bank with respect to
cash management and operating account arrangements, including those involving
pooled accounts and netting arrangements; provided that, unless such Liens are
non-consensual and arise by operation of law, in no case shall any such Liens
secure (either directly or indirectly) the repayment of any Indebtedness;
	 
	 	(xi)	 	Liens on property of a Person existing at the time such Person
is acquired or merged with or into or consolidated with any Issuer Party to the
extent permitted hereunder (and not created in anticipation or contemplation
thereof); provided that such Liens do not extend to property not subject to
such Liens at the time of acquisition (other than improvements thereon) and are
no more favorable to the lienholders than such existing Lien;
	 
	 	(xii)	 	Liens granted pursuant to the Senior Documents;
	 
	 	(xiii)	 	licenses of Intellectual Property granted by any Issuer Party in the ordinary
course of business and not interfering in any material respect with the
ordinary conduct of business of the Issuer Parties;
	 
	 	(xiv)	 	the filing of UCC financing statements solely as a
precautionary measure in connection with operating leases or consignment of
goods; and
	 
	 	(xv)	 	Liens incurred in the ordinary course of business of any Issuer
Party with respect to obligations that do not in the aggregate exceed $2.0
million at any time outstanding.






	 	(c)	 	Sale and Leaseback Transactions
	 
	 	 	 	Enter into any arrangement, directly or indirectly, with any Person whereby it shall
sell or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such property
or other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a “Sale and




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	 	 	 	Leaseback Transaction”) unless (i) the sale of such property is permitted by
Section 8.2(f) and (ii) any Liens arising in connection with its use of such
property are permitted by Section 8.2(b).
	 
	 	(d)	 	Investment, Loan and Advances
	 
	 	 	 	Directly or indirectly, lend money or credit (by way of guarantee or otherwise) or
make advances to any Person, or purchase or acquire any stock, bonds, notes,
debentures or other obligations or securities of, or any other interest in, or make
any capital contribution to, any other Person, or purchase or own a futures contract
or otherwise become liable for the purchase or sale of currency or other commodities
at a future date in the nature of a futures contract (all of the foregoing,
collectively, “Investments”), except that the following shall be permitted:






	 	(i)	 	the Issuer Parties may consummate the Transactions and the
Related Transactions in accordance with the provisions of the Transaction
Documents and the Related Transaction Documents, as applicable;
	 
	 	(ii)	 	Investments outstanding on the Closing Date and identified on
Schedule 8.2(d)(ii);
	 
	 	(iii)	 	the Issuer Parties may (a) acquire and hold accounts
receivables owing to any of them if created or acquired in the ordinary course
of business and payable or dischargeable in accordance with customary terms,
(b) invest in, acquire and hold cash and Cash Equivalents, (c) endorse
negotiable instruments held for collection in the ordinary course of business
or (d) make lease, supplier, utility and other similar deposits in the ordinary
course of business;
	 
	 	(iv)	 	Hedging Obligations incurred pursuant to Section
8.2(a)(iv);
	 
	 	(v)	 	loans and advances to directors, employees and officers of the
Company and the Subsidiaries for bona fide business purposes and to purchase
Equity Interests of Holdings, in aggregate amount not to exceed $2.5 million at
any time outstanding;
	 
	 	(vi)	 	Investments (a) by any Issuer Party in the Company or any
Subsidiary Guarantor, (b) by any Issuer Party in any Person that, in connection
with an Investment that is a Permitted Acquisition, becomes a Subsidiary
Guarantor and (c) by a Subsidiary that is not a Subsidiary Guarantor in any
other Subsidiary that is not a Subsidiary Guarantor;
	 
	 	(vii)	 	Investments in securities of trade creditors or customers in
the ordinary course of business received upon foreclosure or pursuant to any
plan of reorganization or liquidation or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers;




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	 	(viii)	 	Investments made by the Company or any Subsidiary as a result of
consideration received in connection with an Asset Sale made in compliance with
Section 8.2(f);
	 
	 	(ix)	 	Investments made in compliance with Section 8.2(t); and
	 
	 	(x)	 	other Investments in an aggregate amount not to exceed $5.0
million at any time outstanding.






	 	 	An Investment shall be deemed to be outstanding to the extent not returned in the same form
as the original Investment to the Company or any Subsidiary Guarantor.






	 	(e)	 	Mergers and Consolidations
	 
	 	 	 	Wind up, liquidate or dissolve its affairs or enter into any transaction of merger
or consolidation (or agree to do any of the foregoing at any future time), except
that the following shall be permitted:






	 	(i)	 	Asset Sales in compliance with Section 8.2(f);
	 
	 	(ii)	 	acquisitions in compliance with Section 8.2(g);
	 
	 	(iii)	 	any Issuer Party may merge or consolidate with or into the
Company or any Subsidiary Guarantor (as long as the Company is the surviving
Person in the case of any merger or consolidation involving the Company and a
Subsidiary Guarantor is the surviving Person and remains a Wholly Owned
Subsidiary of Holdings in any other case);
	 
	 	(iv)	 	any Subsidiary may dissolve, liquidate or wind up its affairs
at any time; provided that such dissolution, liquidation or winding up, as
applicable, could not reasonably be expected to have a Material Adverse Effect;
and
	 
	 	(v)	 	the Transactions as contemplated by the Transaction Documents
and the Related Transaction Documents, including, without limitation, the
Acquisition, the filing of the Merger Certificate and the Merger.






	 	(f)	 	Asset Sales
	 
	 	 	 	Effect any Asset Sale, or agree to effect any Asset Sale, except that the following
shall be permitted:






	 	(i)	 	disposition of used, worn out, obsolete or surplus property by
any Issuer Party in the ordinary course of business and the abandonment or
other disposition of Intellectual Property that is, in the reasonable judgment
of the Company, no longer economically practicable to maintain or useful in the
conduct of the business of the Issuer Parties taken as a whole;




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	 	(ii)	 	Asset Sales; provided that the aggregate consideration received
in respect of all Asset Sales pursuant to this clause (ii) shall not exceed
$5.0 million in any four consecutive Fiscal Quarters of the Company, but, in
any event, shall not exceed $2.0 million with respect to any single Asset Sale;
	 
	 	(iii)	 	leases of real or personal property in the ordinary course of
business;
	 
	 	(iv)	 	mergers and consolidations in compliance with Section
8.2(e);
	 
	 	(v)	 	Investments in compliance with Section 8.2(d); and
	 
	 	(vi)	 	solely in connection with and as contemplated by a Permitted
Acquisition, Sale and Leaseback Transaction not to exceed $10.0 million.






	 	(g)	 	Acquisitions
	 
	 	 	 	Purchase or otherwise acquire (in one or a series of related transactions) any part
of the property (whether tangible or intangible) of any Person (or agree to do any
of the foregoing at any future time), except that the following shall be permitted:






	 	(i)	 	Capital Expenditures by the Company and the Subsidiaries;
	 
	 	(ii)	 	purchases and other acquisitions of inventory, materials,
contracts, equipment, intangible property and other assets in the ordinary
course of business;
	 
	 	(iii)	 	Investments in compliance with Section 8.2(d);
	 
	 	(iv)	 	leases of real or personal property in the ordinary course of
business;
	 
	 	(v)	 	Permitted Acquisitions; and
	 
	 	(vi)	 	mergers and consolidations in compliance with Section
8.2(e).






	 	(h)	 	Dividends
	 
	 	 	 	Authorize, declare or pay, directly or indirectly, any Dividends with respect to any
Issuer Party, except that the following shall be permitted:






	 	(i)	 	Dividends by any Issuer Party to the Company or any Guarantor
that is a Wholly Owned Subsidiary of the Company;
	 
	 	(ii)	 	payments to Holdings to permit Holdings, and the subsequent use
of such payments by Holdings, to repurchase or redeem Qualified Capital Stock
of Holdings held by officers, directors or employees or former officers,
directors or employees (or their transferees, estates or beneficiaries under
their estates) of any Issuer Party, upon their death, disability, retirement,
severance or termination of employment or service; provided that the aggregate
cash consideration paid for all such redemptions and payments




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	 	 	 	shall not exceed, in any Fiscal Year, the sum of (x) $2.0 million, plus (y)
the amount of any Net Cash Proceeds received by Holdings or contributed to
the Company from the issuance and sale since the issue date of Qualified
Capital Stock of Holdings (other than the Cure Amounts or amounts
contributed for purposes of making Capital Expenditures) to officers,
directors or employees of any Issuer Party that have not been used to make
any repurchases, redemptions or payments under this clause (ii), plus (z)
the net cash proceeds of any “key-man” life insurance policies of any Issuer
Party that have not been used to make any repurchases, redemptions or
payments under this clause (ii);
	 
	 	(iii)	 	(A) to the extent actually used by Holdings to pay such taxes,
costs and expenses, payments by the Company to or on behalf of Holdings in an
amount sufficient to pay franchise taxes and other fees required to maintain
the legal existence of Holdings, (B) payments by the Company to or on behalf of
Holdings in an amount sufficient to pay out-of-pocket legal, accounting and
filing costs and other expenses in the nature of overhead in the ordinary
course of business of Holdings, (C) to the extent actually used by the parent
of Holdings to pay such taxes, costs and expenses, payments by Holdings to or
on behalf of the parent of Holdings in an amount sufficient to pay franchise
taxes and other fees required to maintain the legal existence of such parent
and (D) payments by Holdings to or on behalf of the parent of Holdings in an
amount sufficient to pay out-of-pocket legal, accounting and filing costs and
other expenses in the nature of overhead in the ordinary course of business of
such parent, in the case of clauses (A) through (D) in an aggregate amount not
to exceed $250,000 in any Fiscal Year;
	 
	 	(iv)	 	Permitted Tax Distributions by (i) the Company to Holdings and
(ii) Holdings to the holders of its Equity Interests; and
	 
	 	(v)	 	payments made to Holdings to permit Holdings to make payments
permitted by Section 8.2(i)(v).






	 	(i)	 	Transactions with Affiliates
	 
	 	 	 	Enter into, directly or indirectly, any transaction or series of related
transactions, whether or not in the ordinary course of business, with any Affiliate
of any Issuer Party (other than between or among the Company and one or more
Subsidiary Guarantors), other than on terms and conditions at least as favorable to
such Issuer Party as would reasonably be obtained by such Issuer Party at that time
in a comparable arm’s-length transaction with a Person other than an Affiliate,
except that the following shall be permitted:






	 	(i)	 	Dividends permitted by Section 8.2(h);
	 
	 	(ii)	 	Investments permitted by Sections 8.2(d)(v), (vi)(a)
and (c), (ix) and (x);




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	 	(iii)	 	reasonable and customary director (including, without
limitation, amounts being paid to Nader Dahreshori), officer and employee
compensation (including bonuses and related expenses) and other benefits
(including retirement, health, stock option and other benefit plans) and
indemnification arrangements, in each case approved by the Board of Directors
of the Company;
	 
	 	(iv)	 	transactions with customers, clients, suppliers, joint venture
partners or purchasers or sellers of goods and services, in each case in the
ordinary course of business and otherwise not prohibited by the Transaction
Documents;
	 
	 	(v)	 	so long as no Default exists and the Administrative Agent and
each Purchaser has received the most current version of the Management Services
Agreement, at the times specified and the amounts set forth in the Management
Services Agreement, the payment of (i) the annual advisory fee and
reimbursement of expenses to Veronis Suhler Stevenson LLC (“VSS LLC”); provided
that payments under this clause (v)(i) shall in any event not exceed $260,000
per Fiscal Year, (ii) transaction fees payable to VSS LLC pursuant to Section
3.1 of the Management Services Agreement, which transaction fees shall not
exceed 1% of enterprise value in respect of the transaction pursuant to which
such fees are owed, and (iii) all other investment banking fees and related
expenses payable to VSS LLC pursuant to the Management Services Agreement;
	 
	 	(vi)	 	the existence of, and the performance by any Issuer Party of
its obligations under the terms of, any limited liability company, limited
partnership or other Organizational Document or securityholders agreement
(including any registration rights agreement or purchase agreement related
thereto) to which it is a party on the Closing Date, and which has been
disclosed to the Purchasers as in effect on the Closing Date, and similar
agreements that it may enter into thereafter; provided, however, that the
existence of, or the performance by any Issuer Party of obligations under, any
amendment to any such existing agreement or any such similar agreement entered
into after the Closing Date shall only be permitted by this
Section 8.2(i)(vi) to the extent not more adverse to the interest of
the Purchasers in any material respect, when taken as a whole, than any of such
documents and agreements as in effect on the Closing Date;
	 
	 	(vii)	 	sales of Qualified Capital Stock of Holdings to Affiliates of
the Company (except as permitted under Section 8.2(h)(ii)) not
otherwise prohibited by the Transaction Documents and the granting of
registration and other customary rights in connection therewith;
	 
	 	(viii)	 	any transaction with an Affiliate where the only consideration paid by any
Issuer Party is Qualified Capital Stock of Holdings;




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	 	(ix)	 	exercise of the Cure Right;
	 
	 	(x)	 	the transactions set forth on Schedule 8.2(i) of this
Agreement; and
	 
	 	(xi)	 	the Transactions as contemplated by the Transaction Documents
and Related Transaction Documents.






	 	(j)	 	Prepayments of Other Indebtedness; Modifications of Organizational
Documents and Other Documents, etc
	 
	 	 	 	Directly or indirectly:






	 	(i)	 	make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment on or redemption or acquisition for value of, or
any prepayment or redemption as a result of any asset sale, change of control
or similar event of, any Subordinated Indebtedness, except as otherwise
permitted by this Agreement or except as otherwise permitted by Section
8.2(a)(iii);
	 
	 	(ii)	 	amend or modify, or permit the amendment or modification of,
any provision of any Transaction Document or Related Transaction Document
(other than the Senior Documents) in any manner that is adverse in any material
respect to the interests of the Purchasers or any Subordinated Indebtedness if
the effect of such amendment or modification is to increase the interest rate
on such Subordinated Indebtedness, change (to earlier dates) and dates upon
which payments of principal or interest are due thereon, change any event of
default or condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof or
change the subordination provisions of such Subordinated Indebtedness (or any
guaranty thereof); or
	 
	 	(iii)	 	terminate, amend or modify any of its Organizational Documents
or any agreement to which it is a party with respect to its Equity Interests
(including any stockholders’ agreement) (collectively, the “Equity
Agreements”), or enter into any new agreement with respect to its Equity
Interests, other than any such amendments or modifications or such new
agreements which are not adverse in any material respect to the interests of
any Purchaser; provided that Holdings may issue such Equity Interests, so long
as such issuance is not prohibited by Section 8.2(l) or any other
provision of this Agreement, and may amend or modify its Organizational
Documents or other Equity Agreements to authorize any such Equity Interests.




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	 	(k)	 	Limitation on Certain Restrictions on Subsidiaries
	 
	 	 	 	Directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other interest
or participation in its profits owned by the Company or any Subsidiary, or pay any
Indebtedness owed to the Company or a Subsidiary, (b) make loans or advances to the
Company or any Subsidiary or (c) transfer any of its properties to the Company or
any Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (i) applicable Requirements of Law; (ii) this Agreement and the other
Transaction Documents; (iii) the Senior Documents; (iv) customary provisions
restricting subletting or assignment of any lease governing a leasehold interest of
a Subsidiary; (v) customary provisions restricting assignment of any agreement
entered into by a Subsidiary in the ordinary course of business; (vi) any holder of
a Lien permitted by Section 8.2(b) restricting the transfer of the property
subject thereto; (vii) customary restrictions and conditions contained in any
agreement relating to the sale of any property permitted under
Section 8.2(f) pending the consummation of such sale; (viii) any agreement
in effect at the time such Subsidiary becomes a Subsidiary of the Company, so long
as such agreement was not entered into in connection with or in contemplation of
such Person becoming a Subsidiary of the Company; (ix) without affecting the Issuer
Parties’ obligations under Section 8.1(k), customary provisions in
partnership agreements, limited liability company organizational governance
documents, asset sale and stock sale agreements and other similar agreements entered
into in the ordinary course of business that restrict the transfer of ownership
interests in such partnership, limited liability company or similar Person; (x)
restrictions on cash or other deposits or net worth imposed by suppliers or
landlords under contracts entered into in the ordinary course of business; (xi) any
instrument governing Indebtedness assumed in connection with any Permitted
Acquisition, which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person or the properties or
assets of the Person so acquired; (xii) in the case of any joint venture which is
not an Issuer Party in respect of any matters referred to in clauses (b) and (c)
above, restrictions in such Person’s Organizational Documents or pursuant to any
joint venture agreement or stockholders agreements solely to the extent of the
Equity Interests of or property held in the subject joint venture or other entity;
or (xiii) any encumbrances or restrictions imposed by any amendments or refinancings
that are otherwise permitted by the Transaction Documents of the contracts,
instruments or obligations referred to in clauses (iii) or (viii) above; provided
that such amendments or refinancings are no more materially restrictive with respect
to such encumbrances and restrictions than those prior to such amendment or
refinancing.
	 
	 	(l)	 	Limitation on Issuance of Capital Stock






	 	(i)	 	With respect to Holdings, issue any Equity Interest that is not
Qualified Capital Stock other than MIP Units.




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	 	(ii)	 	With respect to the Company or any Subsidiary, issue any Equity
Interest (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, any Equity Interest,
except (i) for stock splits, stock dividends and additional issuances of Equity
Interests which do not decrease the percentage ownership of the Company or any
Subsidiaries in any class of the Equity Interest of such Subsidiary; (ii)
Subsidiaries of the Company formed after the Closing Date in accordance with
Section 8.2(m) may issue Equity Interests to the Company or the
Subsidiary of the Company which is to own such Equity Interests; and (iii) the
Company may issue common stock that is Qualified Capital Stock to Holdings.






	 	(m)	 	Limitation on Creation of Subsidiaries
	 
	 	 	 	Other than as permitted pursuant to Section 8.2(t), establish, create or
acquire any additional Subsidiaries without the prior written consent of the
Required Note-Holders; provided that, without such consent, the Company may (i)
establish or create one or more Wholly Owned Subsidiaries of the Company, (ii)
establish, create or acquire one or more Subsidiaries in connection with an
Investment made pursuant to Section 8.2(d) or (iii) acquire one or more
Subsidiaries in connection with a Permitted Acquisition, so long as, in each case,
Section 8.1(k) shall be complied with.
	 
	 	(n)	 	Business






	 	(i)	 	With respect to Holdings, engage in any business activities or
have any properties or liabilities, other than (a) its ownership of the Equity
Interests of the Company or any parent company of the Company whose only asset
is its beneficial ownership of the Company and is a direct or indirect Wholly
Owned Subsidiary of Holdings, (b) obligations under the Transaction Documents,
the Related Transaction Documents and the Senior Documents, and (c) activities,
properties and/or liabilities or other obligations incidental to the foregoing
clauses (a) and (b), including, without limitation, liabilities or other
obligations incident to its fulfilling its obligations under its Organizational
Documents and to be in good standing in its jurisdiction of organization.
	 
	 	(ii)	 	With respect to the Company and the Subsidiaries, engage
(directly or indirectly) in any business other than those businesses in which
the Company and its Subsidiaries are engaged on the Closing Date (or, in the
good faith judgment of the Board of Directors, which are substantially related
thereto or are reasonable extensions thereof).






	 	(o)	 	Limitation on Accounting Changes




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	 	 	 	Make or permit any change in accounting policies or reporting practices, without the
consent of the Required Note-Holders, which consent shall not be unreasonably
withheld, except changes that are required by GAAP.
	 
	 	(p)	 	Fiscal Year
	 
	 	 	 	Change its Fiscal Year-end to a date other than December 31.
	 
	 	(q)	 	No Further Negative Pledge
	 
	 	 	 	Enter into any agreement, instrument, deed or lease which, by its terms, prohibits
or limits the ability of any Issuer Party to create, incur, assume or suffer to
exist any Lien upon any of their respective properties or revenues, whether now
owned or hereafter acquired, or which requires the grant of any security for an
obligation if security is granted for another obligation, except the following: (1)
this Agreement, the other Transaction Documents and the Senior Documents; (2)
covenants in documents creating Liens permitted by Section 8.2(b)
prohibiting further Liens on the properties encumbered thereby; (3) any other
agreement that does not restrict in any manner (directly or indirectly) Liens
created pursuant to the Senior Documents on any Collateral securing the Senior Debt
and does not require the direct or indirect granting of any Lien securing any
Indebtedness or other obligation by virtue of the granting of Liens on or pledge of
property of any Loan Party to secure the Senior Debt; and (4) any prohibition or
limitation that (a) exists pursuant to applicable Requirements of Law, (b) consists
of customary restrictions and conditions contained in any agreement relating to the
sale of any property permitted under Section 8.2(f) pending the consummation
of such sale, (c) restricts subletting or assignment of any lease governing a
leasehold interest of the Company or a Subsidiary, (d) exists in any agreement in
effect at the time such Subsidiary becomes a Subsidiary of the Company, so long as
such agreement was not entered into in contemplation of such Person becoming a
Subsidiary or (e) is imposed by any amendments or refinancings that are otherwise
permitted by the Transaction Documents of the contracts, instruments or obligations
referred to in clause (3) or (4)(d); provided that such amendments and refinancings
are no more materially restrictive with respect to such prohibitions and limitations
than those prior to such amendment or refinancing.
	 
	 	(r)	 	Anti-Terrorism Law; Anti-Money Laundering






	 	(i)	 	Directly or indirectly, (i) knowingly conduct any business or
engage in making or receiving any contribution of funds, goods or services to
or for the benefit of any Person described in Section 5.22, (ii)
knowingly deal in, or otherwise engage in any transaction relating to, any
property or interests in property blocked pursuant to the Executive Order or
any other Anti-Terrorism Law, or (iii) knowingly engage in or conspire to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law (and the Issuer Parties shall deliver to the Purchasers




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	 	 	 	any certification or other evidence requested from time to time by any
Purchaser in its reasonable discretion, confirming the Issuer Parties’
compliance with this Section 8.2(r)).
	 
	 	(ii)	 	Cause or permit any of the funds of such Issuer Party that are
used to repay the Notes to be derived from any unlawful activity with the
result that the issuances of the Notes would be in violation of any Requirement
of Law.






	 	(s)	 	Embargoed Person
	 
	 	 	 	Cause or permit (a) any of the funds or properties of the Issuer Parties that are
used to repay the amounts outstanding under the Notes to constitute property of, or
be beneficially owned directly or indirectly by, any Person subject to sanctions or
trade restrictions under United States law (“Embargoed Person” or “Embargoed
Persons”) that is identified on (1) the “List of Specially Designated Nationals and
Blocked Persons” maintained by OFAC and/or on any other similar list maintained by
OFAC pursuant to any authorizing statute including, but not limited to, the
International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading
with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Order or Requirement
of Law promulgated thereunder, with the result that the investment in the Issuer
Parties (whether directly or indirectly) is prohibited by a Requirement of Law, or
the purchase of the Notes made by the Purchasers would be in violation of a
Requirement of Law, or (2) the Executive Order, any related enabling legislation or
any other similar Executive Orders or (b) any Embargoed Person to have any direct or
indirect interest, of any nature whatsoever in the Issuer Parties, with the result
that the investment in the Issuer Parties (whether directly or indirectly) is
prohibited by a Requirement of Law or the issuance or purchase of the Notes is in
violation of a Requirement of Law.
	 
	 	(t)	 	Additional Holding Companies
	 
	 	 	 	Establish, create or acquire any additional Subsidiaries without the prior written
consent of the Required Note-Holders; provided that, without such consent, Holdings
may (a) establish or create one or more direct Subsidiaries of Holdings, (b)
establish, create or acquire one or more direct Subsidiaries in connection with an
Investment made pursuant to Section 8.2(d) or (c) acquire one or more direct
Subsidiaries in connection with a Permitted Acquisition, so long as, in each case,
Section 8.1(k) shall be complied with and such Subsidiary to the extent it is the
direct parent entity of the Company, shall assume all obligations of Holdings under
this Agreement by entering into a Joinder Agreement as set forth in Exhibit
F and executing a Guaranty and upon any such assumption and execution of
Guaranty Holdings shall be released from all its obligations under this Agreement,
and the other Transaction Documents.
	 
	 	(u)	 	Senior Document Amendments




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	 	 	 	Amend, modify, waive or change in any manner any term or condition of any Senior
Document if the effect of such amendment, modification, waiver or change is to (A)
increase Senior Debt in excess of the principal amount of Senior Debt permitted
under Section 8.2(a)(iii) or (B) add restrictions on the ability of the
Company or any Guarantor to make payments to the Administrative Agent and/or the
Purchasers or (C) modify the terms and conditions set forth in Section 6.11(c) of
the Senior Credit Agreement.
	 
	 	(v)	 	Limitation on Repurchases and Other Repayments of Notes
	 
	 	 	 	Directly or indirectly, prepay, repurchase, redeem or otherwise acquire or retire
(and shall not permit any Affiliate to), in whole or in part, directly or
indirectly, any Notes held by any holder of any Notes unless the applicable Issuer
Party, Subsidiary or any applicable Affiliate shall have offered to prepay,
repurchase, redeem or otherwise acquire or retire, as the case may be, the same
proportion of the aggregate principal amount of the Notes held by each other holder
of any Notes at the time outstanding upon the same terms and conditions.






	8.3	 	Financial Covenants
	 
	 	 	Each Issuer Party shall maintain and keep in full force and effect the Financial Covenant
set forth below. The calculation and determination of each such Financial Covenant, and all
accounting terms contained therein, shall be so calculated and construed in accordance with
GAAP, applied on a basis consistent with the financial statements of the Issuer Parties
delivered on or before the Closing Date to the Administrative Agent and each of the
Purchasers:
	 
	 	 	Minimum Consolidated EBITDA

	 
	 	 	Commencing with the Fiscal Quarter ending March 31, 2009, the Issuer Parties shall
maintain as of the end of each Fiscal Quarter, calculated on a rolling four (4)
quarter basis, for each four quarter period ending on the last day of each such
Fiscal Quarter, a Consolidated EBITDA of not less than $25,000,000.

	 
	9.	 	DEFAULTS AND REMEDIES
	 
	9.1	 	Events of Default
	 
	 	 	The occurrence of any one or more of the following events shall constitute an “Event of
Default” hereunder:






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





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	 	(b)	 	a default shall be made in the payment of any interest under any Note or any
other amount (other than an amount referred to in paragraph (a) above) due under any
Transaction Document, when and as the same shall become due and payable, and such
default shall continue unremedied for a period of three Business Days;
	 
	 	(c)	 	any representation or warranty made or deemed made in or in connection with any
Transaction Document, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument furnished
in connection with or pursuant to any Transaction Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or furnished;
	 
	 	(d)	 	default shall be made in the due observance or performance by any Issuer Party
of any covenant, condition or agreement contained in Section 8.1(b),
(c)(i), (h), Section 8.2 or in Section 8.3;
	 
	 	(e)	 	default shall be made in the due observance or performance by any Issuer Party
of any covenant, condition or agreement contained in any Transaction Document (other
than those specified in paragraphs (a), (b) or (d) immediately above) and such default
shall continue unremedied or shall not be waived for a period of 30 days after written
notice thereof from the Administrative Agent or any Purchaser to the Company;
	 
	 	(f)	 	any Issuer Party shall (i) fail to pay any principal or interest, regardless of
amount, due in respect of any Indebtedness (other than the Obligations and the Senior
Debt), when and as the same shall become due and payable beyond any applicable grace
period, or (ii) fail to observe or perform any other term, covenant, condition or
agreement contained in any agreement or instrument evidencing or governing any
Indebtedness (other than the Obligations and the Senior Debt) if the effect of any
failure referred to in this clause (ii) is to cause, or to permit the holder or holders
of such Indebtedness or a trustee or other representative on its or their behalf (with
or without the giving of notice, the lapse of time or both) to cause, such Indebtedness
to become due prior to its stated maturity or become subject to a mandatory offer
purchase by the obligor; provided that, it shall not constitute an Event of Default
pursuant to this paragraph (f) unless the aggregate amount of all such Indebtedness
referred to in clauses (i) and (ii) exceeds $5.0 million at any one time (provided
that, in the case of any Hedging Obligations, the amount counted for this purpose shall
be the amount payable by all Issuer Parties if such Hedging Obligations were terminated
at such time);
	 
	 	(g)	 	an involuntary proceeding shall be commenced or an involuntary petition shall
be filed in a court of competent jurisdiction seeking (i) relief in respect of any
Issuer Party, or of a substantial part of the property of any Issuer Party, under the
Bankruptcy Code, as now constituted or hereafter amended, or any other federal, state
or foreign bankruptcy, insolvency, receivership or similar law; (ii) the appointment of
a receiver, trustee, custodian, sequestrator, conservator or similar official for any
Issuer Party or for a substantial part of the property of any Issuer




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	 	 	 	Party; or (iii) the winding-up or liquidation of any Issuer Party; and such
proceeding or petition shall continue undismissed for 90 days or an order or decree
approving or ordering any of the foregoing shall be entered;
	 
	 	(h)	 	any Issuer Party shall (i) voluntarily commence any proceeding or file any
petition seeking relief under the Bankruptcy Code, as now constituted or hereafter
amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or
similar law; (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
clause (g) above; (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for any Issuer Party or for a
substantial part of the property of any Issuer Party; (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding; (v) make a
general assignment for the benefit of creditors; (vi) become unable, admit in writing
its inability or fail generally to pay its debts as they become due; (vii) take any
action for the purpose of effecting any of the foregoing; or (viii) wind up or
liquidate;
	 
	 	(i)	 	one or more judgments, orders or decrees for the payment of money in an
aggregate amount in excess of $5.0 million (to the extent not covered by insurance or
the indemnity of the Sellers under the Acquisition Agreement) shall be rendered against
any Issuer Party or any combination thereof and the same shall remain undischarged,
unvacated or unbonded for a period of 60 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment creditor
to levy upon properties of any Issuer Party to enforce any such judgment;
	 
	 	(j)	 	one or more ERISA Events shall have occurred that, when taken together with all
other such ERISA Events could reasonably be expected to result in a Material Adverse
Effect or in the imposition of a Lien on any properties of any Issuer Party;
	 
	 	(k)	 	any Transaction Document or any material provisions thereof shall at any time
and for any reason be declared by a court of competent jurisdiction to be null and
void, or a proceeding shall be commenced by any Issuer Party or any other Person, or by
any Governmental Authority, seeking to establish the invalidity or unenforceability
thereof (exclusive of questions of interpretation of any provision thereof), or any
Issuer Party shall repudiate or deny any portion of its liability or obligation for the
Obligations;
	 
	 	(l)	 	there shall have occurred a Change in Control;
	 
	 	(m)	 	any Issuer Party shall be prohibited or otherwise restrained from conducting
the business theretofore conducted by it in any manner that has or could reasonably be
expected to result in a Material Adverse Effect by virtue of any determination, ruling,
decision, decree or order of any court or Governmental Authority of competent
jurisdiction; or




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	 	(n)	 	(i) Any Issuer Party shall fail to make any payment on account of any Senior
Debt when due (whether at scheduled maturity, by required prepayment, upon acceleration
or otherwise) and such failure shall continue beyond any period of grace provided with
respect thereto or (ii) any Issuer Party shall otherwise fail to observe or perform any
other agreement, term or condition contained in any agreement or instrument relating to
any Senior Debt other than a financial maintenance covenant and such failure is not
cured or waived within 60 days or (iii) the maturity date of the Senior Debt has been
accelerated or the Senior Debt has been prepaid, liquidated or redeemed, in each case
as a result of a default under the Senior Documents; provided, however, that if such
default shall be cured or waived by the holders of the Senior Debt, in each case prior
to the commencement of any action under Section 9.2, then the Event of Default
that occurred under this subsection by reason of such default shall be deemed likewise
to have been thereupon cured or waived; provided, however, that the foregoing shall not
waive any other Default which may have occurred under any other subsection of
Section 9.1.






	9.2	 	Acceleration
	 
	 	 	If an Event of Default occurs under Section 9.1(g) or 9.1(h), the
Obligations shall immediately become due and payable, without presentment, demand, protest
or notice of any kind, all of which are hereby expressly waived. If any other Event of
Default occurs and is continuing, the Obligations, at the option of the Required
Note-Holders, shall immediately become due and payable, without presentment, demand, protest
or notice of any kind, all of which are hereby expressly waived.
	 
	9.3	 	Suits for Enforcement






	 	(a)	 	Upon the occurrence and during the continuation of any one or more Events of
Default, the Administrative Agent may, and shall at the request of the Required
Note-Holders proceed to protect and enforce the rights of each of the Purchasers
hereunder by suit in equity, action at law or by other appropriate proceeding, whether
for the specific performance of any covenant or agreement contained in this Agreement
or any other Transaction Document or in aid of the exercise of any power granted in
this Agreement or any other Transaction Documents, or may proceed to enforce the
payment of the Notes, or to enforce any other legal or equitable right of the
Administrative Agent and the Purchasers, provided, however, that no Purchaser will take
any actions to protect or enforce its rights hereunder without the consent of the
Required Note-Holders. The Administrative Agent shall have the right, in its own name
and as agent for the Purchasers, to take all actions now or hereafter existing at law,
in equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Purchasers (including the
institution and prosecution of all judicial, administrative and other proceedings and
the filings of proofs of claim and debt in connection therewith).




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	 	(b)	 	Upon the occurrence of an Event of Default, the Company shall pay to the
Administrative Agent and the Purchasers such amounts as shall be sufficient to cover
the costs and expenses of the Administrative Agent and the Purchasers as a result of
the occurrence of such Event of Default, as provided in this Agreement (including,
without limitation, as provided in Section 12.12) and the other Transaction
Documents.






	9.4	 	Remedies Cumulative
	 
	 	 	No remedy herein conferred upon the Administrative Agent or any Purchaser is intended to be
exclusive of any other remedy and each and every such remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter existing at law or
in equity or by statute or otherwise.
	 
	9.5	 	Remedies Not Waived
	 
	 	 	No course of dealing between any Issuer Party, the Administrative Agent and any Purchaser or
any delay on the part of the Administrative Agent or any Purchaser in exercising any rights
hereunder shall operate as a waiver of any right.
	 
	9.6	 	Certain Cure Rights.
	 
	 	 	Notwithstanding anything to the contrary contained in Section 9.1, in the event that
the Company fails to comply with any financial covenant contained in Section 8.3,
Holdings shall have the right, no later than 10 days after the delivery of a Notice of
Intent to Cure, to issue Permitted Cure Securities for cash or otherwise make cash
contribution to the capital of the Company in an aggregate amount not in excess of the
minimum amount necessary to cure the relevant failure to comply with such Financial
Covenant, the net cash proceeds of which shall be contributed to the common equity capital
of the Company (collectively, the “Cure Right”), and upon the receipt by the Company of such
cash (the “Cure Amount”), such financial covenant shall be recalculated giving effect to the
following pro forma adjustments:






(a) Consolidated EBITDA shall be increased, as provided in the definition thereof, solely
for the purpose of measuring such financial covenant and not for any other purpose under
this Agreement, by an amount equal to the Cure Amount;




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




(c) to the extent that the Cure Amount proceeds are used to repay Indebtedness, such
Indebtedness shall not be deemed to have been repaid for purposes of calculating the



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Financial Covenant for the Test Period with respect to which such Cure Right was exercised;
and




(d) to the extent a Fiscal Quarter ended for which such financial covenant is initially
recalculated as a result of a Cure Right is included in the calculation of a financial
covenant in a subsequent fiscal period, the Cure Amount shall be included in the amount of
Consolidated EBITDA for such initial Fiscal Quarter;




provided that in each four Fiscal Quarters there shall be at least two consecutive Fiscal
Quarters in which no Cure Right is exercised. If the Company shall have delivered a Notice
of Intent to Cure, in accordance with Section 8.1(a)(xi), then (subject to the
preceding sentence) the right of the Purchasers to declare the Obligations due and payable
solely as a result of a breach of Section 8.3 shall be suspended for a period of 10
Business Days following the date of delivery of such Notice of Intent to Cure.




	10.	 	PREPAYMENT
	 
	10.1	 	Optional Prepayment
	 
	 	 	Following the second anniversary of the Closing Date and subject to the terms and conditions
of the Notes and any restrictions set forth in the Senior Credit Agreement, the Company may
prepay the outstanding principal of (together with accrued interest on) the Notes in full,
or from time to time, in part, in accordance with the provisions set forth in Section
4 of the Closing Notes.
	 
	10.2	 	Mandatory Prepayment
	 
	 	 	Subject to the terms and conditions of the Closing Notes and any restrictions set forth in
the Senior Credit Agreement, the Company shall prepay the outstanding principal of (together
with accrued interest on) the Notes in accordance with the provisions of Sections 5
and 6 of the Closing Notes.
	 
	11.	 	THE ADMINISTRATIVE AGENT
	 
	11.1	 	Appointment
	 
	 	 	Each Purchaser hereby irrevocably designates and appoints TCW IV (together with any
successor Administrative Agent pursuant to Section 11.9) as the agent of such
Purchaser under this Agreement and the other Transaction Documents, and each such Purchaser
irrevocably authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Transaction 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 Transaction 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 Purchaser, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into




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	 	 	this Agreement or any other Transaction Document or otherwise exist against the
Administrative Agent.
	 
	11.2	 	Delegation of Duties
	 
	 	 	The Administrative Agent may execute any of its duties under this Agreement and the other
Transaction 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.
	 
	11.3	 	Exculpatory Provisions
	 
	 	 	The Administrative Agent or any of its respective officers, directors, employees, agents,
attorneys in fact or affiliates shall not 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 Transaction 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 Purchasers for any recitals, statements, representations or warranties
made by any Issuer Party or any officer thereof contained in this Agreement or any other
Transaction Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in connection with,
this Agreement or any other Transaction Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Transaction
Document or for any failure of any Issuer Party a party thereto to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any obligation to any
Purchaser 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 Transaction Document,
or to inspect the properties, books or records of any Issuer Party.
	 
	11.4	 	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 any
Issuer Party), 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 Transaction Document unless it shall first receive such advice or concurrence of the
Required Note-Holders (or, if so specified by this Agreement, all Purchasers) as it deems
appropriate or it shall first be indemnified to its satisfaction by the Purchasers against
any and all liability and expense that may be




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	 	 	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 Transaction Documents in accordance with a
request of the Required Note-Holders (or, if so specified by this Agreement, all
Purchasers), and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Purchasers and all future holders of the Notes.
	 
	11.5	 	Action on Default
	 
	 	 	The Administrative Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Note-Holders (or, if so specified by
this Agreement, all Purchasers); 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
Purchasers.
	 
	11.6	 	Non-Reliance on Agents and Other Purchasers
	 
	 	 	Each Purchaser expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys in fact or affiliates have made any
representations or warranties to it (other than those representations made by it pursuant to
Section 6 in its capacity as a Purchaser) and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of any Issuer Party or any Affiliate of
any Issuer Party, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Purchaser. Each Purchaser represents, severally as to itself
and not jointly, to the Administrative Agent that it has, independently and without reliance
upon the Administrative Agent or any other Purchaser, 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 Issuer Parties and their affiliates and made its own decision to purchase its Closing
Notes hereunder and enter into this Agreement. Each Purchaser, severally as to itself and
not jointly, also represents that it shall, independently and without reliance upon the
Administrative Agent or any other Purchaser, 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 Transaction
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
Issuer Parties and their affiliates.
	 
	11.7	 	Indemnification
	 
	 	 	The Purchasers agree to indemnify the Administrative Agent in its capacity as such (to the
extent not reimbursed by any Issuer Party and without limiting the obligation of any Issuer
Party to do so), ratably according to their respective percentages in the Notes in effect on
the date on which indemnification is sought under this Section 11 (or, if
indemnification is sought after the date upon which the Notes shall have been paid in full,




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	 	 	ratably in accordance with such 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 Notes) be imposed on, incurred by or
asserted against the Administrative Agent, in its capacity as such, in any way relating to
or arising out of this Agreement, the Notes, any of the other Transaction 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 the Administrative Agent, in its
capacity as such, under or in connection with any of the foregoing; provided that no
Purchaser 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 the Administrative Agent’s gross negligence or willful misconduct. The
agreements in this Section 11 shall survive the payment of the Notes and all other
amounts payable hereunder.
	 
	11.8	 	Agent in Its Individual Capacity
	 
	 	 	The Administrative Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any Issuer Party as though the Administrative
Agent were not the Administrative Agent. With respect to its Notes made or renewed by it,
the Administrative Agent shall have the same rights and powers under this Agreement and the
other Transaction Documents as any Purchaser and may exercise the same as though it were not
the Administrative Agent, and the terms “Purchaser” and “Purchasers” shall include the
Administrative Agent in its individual capacity.
	 
	11.9	 	Successor Agents
	 
	 	 	The Administrative Agent may resign in such capacity upon thirty (30) days’ prior written
notice to the Purchasers and the Company. If the Administrative Agent shall resign in such
capacity under this Agreement and the other Transaction Documents, then the Required
Note-Holders shall appoint a successor agent for the Purchasers, which successor agent
shall, unless an Event of Default shall have occurred and be continuing, be subject to
approval by the Company (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 Agent’s rights, powers and
duties as the 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 Notes, it being understood that the Company shall jointly and
severally pay the reasonable fees and expenses of any successor Administrative Agent,
including in connection with its review of the Transaction Documents. If no successor agent
has accepted appointment as the Administrative Agent by the date that is ninety (90) days
following the applicable retiring Administrative Agent’s notice of resignation, the
applicable retiring Administrative Agent’s resignation shall nevertheless thereupon become
effective, and the Purchasers shall assume and perform all of the duties of the
Administrative Agent hereunder until




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	 	 	such time, if any, as the Required Note-Holders appoint a successor agent as provided for
above. After any retiring Administrative Agent’s resignation as the Administrative Agent
the provisions of this Section 11 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the Administrative Agent under this Agreement and
the other Transaction Documents.
	 
	12.	 	MISCELLANEOUS
	 
	12.1	 	Survival of Representations and Warranties
	 
	 	 	All indemnification or other protection provided to any Indemnified Party pursuant to any
Transaction Document and all of the representations and warranties made in any Transaction
Document shall survive the execution and delivery of this Agreement, any investigation by or
on behalf of the Purchasers and acceptance of the Notes and payment therefor and termination
of this Agreement.
	 
	12.2	 	Notices
	 
	 	 	All notices, demands and other communications provided for or permitted under any
Transaction Document shall be made in writing and addressed as follows:






	 	(a)	 	If to the Administrative Agent, TCW




or TCW IVB:


TCW/Crescent Mezzanine IV, L.L.C.

200 Park Avenue

Suite 2200

New York, New York 10166

Attention: Andrew G. Bernstein

Facsimile No.: (212) 771-4551



With a copy to:



Loeb & Loeb LLP

345 Park Avenue

New York, New York 10154

Attention: Stan Johnson, Esq.

Facsimile No.: (212) 407-4990





	 	(b)	 	If to MAC:





MAC Capital, Ltd.

c/o Trust Company of the West

11100 Santa Monica Blvd, Suite 2000

Los Angeles CA 90025

Attention: Scott Fukumoto

Facsimile: (310) 235-5966


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	 	(c)	 	If to New York Life Investment Management Mezzanine Partners II, LP or NYLIM
Mezzanine Partners II Parallel Fund, LP:




c/o NYLCAP Manager, LLC

51 Madison Avenue, 16th Floor

New York, New York 10010

Attention: James M. Barker V

                   Lorne M. Smith, Esq.

Facsimile No.: (212) 576-5591



With a copy to:



McDermott Will & Emery LLP

340 Madison Avenue

New York, New York 10173-1922

Attention: Seth T. Goldsamt, Esq.

Facsimile No.: (212) 547-5444





	 	(d)	 	If to Goldentree Capital Solutions Fund Financing or Goldentree Capital
Opportunities, LP




c/o GoldenTree Asset Management LP



300 Park Avenue, 21st Floor



New York, NY 10022

Attention: Jason Chen

Facsimile No.: (212) 847-3496



	 	(e)	 	If to any other Purchaser:




To the address specified below its

signature on any signature page

hereto or any signature page of any

applicable Assignment





	 	(f)	 	If to any Issuer Party:





c/o Veronis Suhler Stevenson

350 Park Avenue

New York, NY 10022

Attention: Scott J. Troeller

Facsimile: (212) 381-8168

Telephone: (212) 381-8420

E-mail: TroellerS@vss.com;


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With a copy to:



Lowenstein Sandler PC

1251 Avenue of the Americas

18th Floor

New York, NY 10020

Attention: Lowell A. Citron

Facsimile: (973) 422-6809

Telephone: (646) 414-6819

E-mail: lcitron@lowenstein.com;





All such notices, demands and other communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when delivered by courier,
if delivered by commercial overnight courier service; five (5) Business Days after
being deposited in the mail, postage prepaid, if mailed; and when receipt is
acknowledged, if telecopied.




	12.3	 	Successors and Assigns






	 	(a)	 	This Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of the parties hereto. No Issuer Party may assign any of its
rights under this Agreement without the prior written consent of the Purchasers, any
such purported assignment without such consent being null and void. Except as provided
in Section 7, no Person other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of any of the Transaction Documents.
	 
	 	(b)	 	Subject to applicable securities laws, each Purchaser may, without notice to or
consent of any Issuer Party or other party hereto, at any time sell to any Person
(“Participants”) participating interests in all or a portion of any Obligation owing to
such Purchaser, any Note held by such Purchaser or any other interest of such Purchaser
under this Agreement and the other Transaction Documents. In the event of any such
sale by a Purchaser of participating interests, such Purchaser’s obligations under this
Agreement shall remain unchanged, such Purchaser shall remain solely responsible for
the performance thereof, such Purchaser shall remain the holder of its Notes for all
purposes under this Agreement and the Company and the Administrative Agent shall
continue to deal solely and directly with such Purchaser in connection with such
Purchaser’s rights and obligations under this Agreement. Any agreement pursuant to
which any such sale is effected may require the selling Purchaser to obtain the consent
of the Participant in order for such Purchaser to agree in writing to any amendment,
waiver or consent of a type specified in clauses (ii) through (vii) of Section
12.4(b) but may not otherwise require the selling Purchaser to obtain the consent
of such Participant to any other amendment, waiver or consent hereunder. The Issuer
Parties agree that if amounts outstanding under this Agreement and the other
Transaction Documents are not paid when due (whether upon acceleration or otherwise),
each Participant shall, to the fullest extent permitted by law, be deemed to have the




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	 	 	 	right of setoff in respect of its participating interest in amounts owing under this
Agreement and any other Transaction Documents to the same extent as if the amount of
its participating interest were owing directly to it as a Purchaser under this
Agreement or any other Transaction Documents; provided, however, that (i) no
Participant shall exercise any rights under this sentence without the consent of the
Administrative Agent, (ii) no Participant shall have any rights under this sentence
which are greater than those of the selling Purchaser and (iii) such rights of
setoff shall be subject to the obligation of such Participant to share the payment
so obtained with all of the Purchasers as provided herein. The Issuer Parties also
agree that any Purchaser which has transferred any participating interest in its
Obligations shall, notwithstanding any such transfer, be entitled to the full
benefits accorded such Purchaser under Sections 2.6 and 7.1, as if
such Purchaser had not made such transfer.
	 
	 	(c)	 	Subject to applicable securities laws, each Purchaser may only sell, transfer,
negotiate or assign all or a portion of its rights and obligations hereunder or under
any Transaction Document to (i) any other Purchaser, (ii) any Affiliate or Approved
Fund of any Purchaser or (iii) with the consent of the Company (which consent shall not
be unreasonably withheld or delayed and which consent shall not be required following
the occurrence and during the continuance of an Event of Default), any other Person;
provided, however, that the aggregate outstanding principal amount (determined as of
the effective date of the applicable Assignment) of the Notes subject to any such
transfer shall not be less than $2,000,000, unless such transfer (1) is made to an
existing Purchaser or an Affiliate or Approved Fund of any existing Purchaser, (2) is
of the assignor’s (together with its Affiliates and Approved Funds) entire interest in
such Note or (3) is made with the prior consent of the Company.
	 
	 	(d)	 	The parties to each sale made in reliance on clause (c) above shall execute and
deliver to the Administrative Agent (which shall keep a copy thereof) an Assignment,
together with any existing Note subject to such sale (or any affidavit of loss therefor
acceptable to the Administrative Agent), any tax forms required to be delivered
pursuant to this Agreement and, other than in connection with an assignment to any
Affiliate or Approved Fund of any Purchaser, payment to Administrative Agent by the
assignee of an assignment fee in the amount of $4,000. Upon receipt of all the
foregoing, and conditioned upon such receipt, from and after the effective date
specified in such Assignment, the Administrative Agent shall deliver such Assignment to
the Company and the Company shall record or cause to be recorded in the Register the
information contained in such Assignment.
	 
	 	(e)	 	Effective upon the entry of such record in the Register, (i) such assignee
shall become a party hereto and, to the extent that rights and obligations under the
Transaction Documents have been assigned to such assignee pursuant to such Assignment,
shall have the rights and obligations of a Purchaser, (ii) any applicable Note or
portion thereof shall be transferred to such assignee through such entry and (iii) the
assignor thereunder shall, to the extent that rights and




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	 	 	 	obligations under this Agreement have been assigned by it pursuant to such
Assignment, relinquish its rights (except for those surviving the payment in full of
the Obligations) and be released from its obligations under the Transaction
Documents, other than those relating to events or circumstances occurring prior to
such assignment.






	12.4	 	Amendment and Waiver






	 	(a)	 	No failure or delay on the part of any of the parties hereto in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any remedies that
may be available to the parties hereto at law, in equity or otherwise.
	 
	 	(b)	 	No amendment or waiver of any provision of any Transaction Document and no
consent to any departure by any Issuer Party therefrom shall be effective unless the
same shall be in writing and signed (1) in the case of an amendment, consent or waiver
to cure any ambiguity, omission, defect or inconsistency by the Administrative Agent
and the applicable Issuer Party, (2) in the case of any other waiver or consent, by the
Required Note-Holders (or by the Administrative Agent with the consent of the Required
Note-Holders) and (3) in the case of any other amendment, by the Required Note-Holders
(or by the Administrative Agent with the consent of the Required Note-Holders) and the
Issuer Parties; provided, however, that no amendment, consent or waiver described in
clause (2) or (3) above shall, unless in writing and signed by each Purchaser directly
affected thereby (or by the Administrative Agent with the consent of such Purchaser),
in addition to any other Person the signature of which is otherwise required pursuant
to any Transaction Document, do any of the following:






	 	(i)	 	waive any condition specified in Section 3;
	 
	 	(ii)	 	subject such Purchaser to any additional obligation;
	 
	 	(iii)	 	reduce (including through release, forgiveness, assignment or
otherwise) (A) the principal amount of, the interest rate on, or the amount of
interest payable in cash or any obligation of the Company to repay (whether or
not on a fixed date), any amount outstanding under the Notes owing to such
Purchaser, or (B) any fee (including any prepayment premium) or accrued
interest or other amounts payable to such Purchaser;
	 
	 	(iv)	 	amend, waive or postpone any scheduled maturity date or other
scheduled date fixed for the payment, in whole or in part, of principal of or
premium on any Note or interest on any Note;
	 
	 	(v)	 	release any Guarantor from its Guaranty Obligations under its
Guaranty;




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	 	(vi)	 	reduce or increase the proportion of Purchasers required for
the Purchasers to take any action hereunder or change the definition of the
term “Required Note-Holders”; or
	 
	 	(vii)	 	amend or waive Section 2.5 (Payments), Section 8.2(a)(iii)
(Indebtedness), Section 8.2(v) (Limitation on Repurchases and Other Repayments
of Notes), Section 10.1 (Optional Prepayment) or Section 10.2 (Mandatory
Prepayment) of this Agreement or Section 4 (Voluntary Prepayment) or Section 5
(Mandatory Prepayment) of any Note; or, in the case of each of the foregoing
Sections, any of the definitions used therein;
	 
	 	(viii)	 	adversely affect the priority of the Notes;
	 
	 	(ix)	 	change the currency in which amounts due under the Notes are
payable; or
	 
	 	(x)	 	amend this Section 12.4;






	 	 	and provided, further, that no amendment, waiver or consent shall affect the rights or
duties under any Transaction Document of, or any payment to, the Administrative Agent (or
otherwise modify any provision of Article 11 or the application thereof) without the
prior written consent of the Administrative Agent.
	 
	12.5	 	Responsible Officer
	 
	 	 	Any document delivered hereunder that is signed by a Responsible Officer of any Issuer Party
and any request or other communication conveyed telephonically or otherwise by a Responsible
Officer of any Issuer Party (or any Person reasonably believed by the Administrative Agent
or any Purchaser to be a Responsible Officer of any Issuer Party) shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or other action
on the part of such Issuer Party and such Responsible Officer (or such Person reasonably
believed by the Administrative Agent or any Purchaser to be a Responsible Officer of any
Issuer Party) shall be conclusively presumed to have acted on behalf of such Issuer Party.
	 
	12.6	 	Signatures and Counterparts
	 
	 	 	Facsimile or other electronic transmissions of any executed original document and/or
retransmission of any executed facsimile or other electronic transmission shall be deemed to
be the same as the delivery of an executed original. At the request of any party hereto,
the other parties hereto shall confirm facsimile or other electronic transmissions by
executing duplicate original documents and delivering the same to the requesting party or
parties. This Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
	 
	12.7	 	Headings




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	 	 	The headings in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
	 
	12.8	 	GOVERNING LAW
	 
	 	 	THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
	 
	12.9	 	WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION
	 
	 	 	EACH OF THE PARTIES HERETO WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY
IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS
AGREEMENT OR THE VALIDITY, PROTECTION, INTERPRETATION, OR ENFORCEMENT HEREOF. THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF
THE PARTIES HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A
BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS
TRANSACTION, AND THAT EACH SHALL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE
DEALINGS. EACH OF THE PARTIES HERETO FURTHER WARRANTS AND REPRESENTS THAT EACH HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, OR
TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS AGREEMENT. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. EACH
OF THE PARTIES HERETO ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT,
BUT FOR THIS WAIVER, BE REQUIRED OF EACH. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
NOTES OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL
JURISDICTION AND VENUE OF SUCH COURTS FOR THE




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	 	 	PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH
COURTS ARE AN INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS ADDRESS
SET FORTH IN SECTION 12.2, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH
MAILING.
	 
	12.10	 	Severability
	 
	 	 	If any one or more of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the remaining
provisions hereof.
	 
	12.11	 	Entire Agreement
	 
	 	 	This Agreement, together with the exhibits and schedules hereto and the other Transaction
Documents, is intended by the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings among the parties, other than those set
forth or referred to herein or therein. This Agreement, together with the exhibits and
schedules hereto, and the other Transaction Documents supersede all prior agreements and
understandings between the parties with respect to such subject matter.
	 
	12.12	 	Certain Expenses
	 
	 	 	The Issuer Parties, jointly and severally, shall pay within 10 Business Days of receipt of a
reasonably detailed written demand: (i) all reasonable costs and expenses of the
Administrative Agent and each of the Purchasers in connection with the preparation,
negotiation, execution and delivery of any of the Transaction Documents (including in each
case, without limitation, (A) all reasonable due diligence, transportation, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and expenses, (B)
the reasonable travel and other related expenses incurred by the Observer pursuant to
Section 8.1(o) and (C) the reasonable fees, charges and disbursements of counsel for
the Administrative Agent and the Purchasers with respect thereto, (ii) all reasonable costs
and expenses of the Administrative Agent (including the reasonable fees of counsel to the
Administrative Agent) in connection with (a) the administration, amendment, supplement,
modification or waiver of or to any provision of any of the Transaction Documents or (b) the
consent to any departure by any Issuer Party from the terms of any provision of any of the
Transaction Documents and (iii) all reasonable costs and expenses of the Administrative
Agent and each of the Purchasers (including the




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	 	 	reasonable fees and expenses of counsel to the Administrative Agent and a single special
counsel to the Purchasers with respect thereto) in connection with the enforcement of the
Transaction Documents, whether in any action, suit or litigation, any bankruptcy, insolvency
or similar proceeding affecting creditors’ rights generally, including during a Default or
Event of Default with respect to advising the Administrative Agent and the Purchasers of
their rights and responsibilities or the protection or preservation of rights or interests,
under the Transaction Documents, with respect to negotiations with any Issuer Party or with
other creditors of any Issuer Party or any of its Subsidiaries arising out of any Default or
any events or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency or other
similar proceeding involving creditors’ rights generally and any proceeding ancillary
thereto.
	 
	12.13	 	Publicity
	 
	 	 	Except as may be required by applicable law, none of the parties hereto shall issue a
publicity release or announcement or otherwise make any public disclosure concerning this
Agreement or the transactions contemplated hereby, without prior approval by the other
parties hereto. If any announcement is required by law to be made by any party hereto,
prior to making such announcement such party shall deliver a draft of such announcement to
the other parties and shall give the other parties an opportunity to comment thereon.
Notwithstanding anything to the contrary set forth herein, each Issuer Party consents to the
Purchasers publishing a tombstone or any similar advertising material relating to the
transactions contemplated by the Transaction Documents.
	 
	12.14	 	Further Assurances
	 
	 	 	Each of the parties shall execute such documents and perform such further acts (including,
without limitation, obtaining any consents, exemptions, authorizations, or other actions by,
or giving any notices to, or making any filings with, any Governmental Authority or any
other Person) as may be reasonably required or desirable to carry out or to perform the
provisions of the Transaction Documents.
	 
	12.15	 	Note Register
	 
	 	 	The Company shall keep a register (the “Register”) in which the Company shall provide for
the registration of the Notes and the registration of transfers of the Notes. Upon
surrender for registration of transfer of any such Note at the office of the Company set
forth herein, the Company shall (if such transfer is permitted hereunder) execute and
deliver, in the name of the designated transferee or transferees, one or more new Notes of
the same type and in a like aggregate principal amount. As an issuer of a Note, the Company
shall have no Obligation hereunder or under any of its respective Notes to any Person other
than the registered holder of such Note.
	 
	12.16	 	Confidentiality
	 
	 	 	Each holder of a Note agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates’




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	 	 	limited partners, members, managers, directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any
regulatory authority or the National Association of Insurance Commissioners or any similar
organization, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section
12.16, to any assignee of or participant in, or any prospective assignee of or
participant in, any of its rights or obligations under this Agreement or any Note, (g) with
the consent of the Issuer Parties, or (h) to the extent such Information (1) becomes
publicly available other than as a result of a breach of this Section 12.16 by such holder
or (2) becomes available to any holder of a Note on a nonconfidential basis from a source
other than any Issuer Party; provided, however, to the extent practicable, the applicable
Purchaser shall endeavor to give the Issuer Parties notice prior to disclosing any
Information under subsections (c), (d) and (f) of this Section 12.16. For the
purposes of this Section 12.16, “Information” shall mean all information received
from any Issuer Party relating to any Issuer Party or its business, other than any such
information that is available to any holder of a Note on a nonconfidential basis prior to
disclosure by such Issuer Party. Any Person required to maintain the confidentiality of
Information as provided in this Section 12.16 shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.





[SIGNATURE PAGES FOLLOW]




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



	 	 	 	 	 	 	 
	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 
	 	 	VSS-CAMBIUM MERGER CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Scott J. Troeller	 	 
	 
	 	 	 	 
Name: Scott J. Troeller	 	 
	 
	 	 	 	Title: Vice-President	 	 
	 
	 	 	 	 	 	 
	 	 	HOLDINGS:	 	 
	 
	 	 	 	 	 	 
	 	 	VSS-CAMBIUM HOLDINGS, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Scott J. Troeller	 	 
	 

	 	 	 	 
Name: Scott J. Troeller	 	 
	 

	 	 	 	Title: President	 	 






101








 





	 	 	 	 	 	 	 
	 	 	PURCHASERS:	 	 
	 
	 	 	 	 	 	 
	 	 	TCW/CRESCENT MEZZANINE PARTNERS IV, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	TCW/Crescent Mezzanine Management IV,
L.L.C., its Investment Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	TCW/Asset Management Company, its Sub-

Advisor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Patrick Turner 	 	 
	 

	 	 	 	 

Name: Patrick Turner
	 	 
	 

	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	TCW/CRESCENT MEZZANINE PARTNERS IVB, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	TCW/Crescent Mezzanine Management IV,
L.L.C., its Investment Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	TCW/Asset Management Company, its Sub-

Advisor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Patrick Turner	 	 
	 

	 	 	 	 

Name: Patrick Turner
	 	 
	 

	 	 	 	Title: Managing Director	 	 






102








 





	 	 	 	 	 	 	 
	 	 	MAC CAPITAL, LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	TCW Advisors, Inc., as attorney-in-fact	 	 
	 
	 	 	 	 	 	 
	 
	 	By:	 	/s/ Scott Whalen 	 	 
	 

	 	 	 	 

Name: Scott Whalen
	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Julia K. Haram 	 	 
	 

	 	 	 	 

Name: Julia K. Haram
	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	NEW YORK LIFE INVESTMENT 

MANAGEMENT MEZZANINE PARTNERS II, LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	NYLIM Mezzanine Partners II GenPar, LP	 	 
	 

	 	Its:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	NYLIM Mezzanine Partners II GenPar GP, LLC	 	 
	 

	 	Its:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ James M. Barker, V 	 	 
	 

	 	Name:	 	 
James M. Barker, V	 	 
	 

	 	Title:	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	 	 	NYLIM MEZZANINE PARTNERS II PARALLEL FUND, LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	NYLIM Mezzanine Partners II GenPar, LP	 	 
	 

	 	Its:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	NYLIM Mezzanine Partners II GenPar GP, LLC	 	 
	 

	 	Its:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ James M. Barker, V 	 	 
	 
	 	Name:	 	 
James M. Barker, V	 	 
	 

	 	Title:	 	Authorized Signatory	 	 







103








 






	 	 	 	 	 	 	 
	 	 	GOLDENTREE CAPITAL SOLUTIONS FUND FINANCING	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jonathan Ezrow	 	 
	 

	 	 	 	 

Name: Jonathan Ezrow
	 	 
	 

	 	 	 	Title: Portfolio Manager	 	 
	 
	 	 	 	 	 	 
	 	 	GOLDENTREE CAPITAL OPPORTUNITIES, LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jonathan Ezrow	 	 
	 

	 	 	 	 

Name: Jonathan Ezrow
	 	 
	 

	 	 	 	Title: Portfolio Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ADMINISTRATIVE AGENT:	 	 
	 
	 	 	 	 	 	 
	 	 	TCW/CRESCENT MEZZANINE PARTNERS IV, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	TCW/Crescent Mezzanine Management IV,
L.L.C., its Investment Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	TCW/Asset Management Company, its Sub-

Advisor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Patrick Turner	 	 
	 

	 	 	 	 

Name: Patrick Turner
	 	 
	 

	 	 	 	Title: Managing Director	 	 







104