exv10w8





Exhibit 10.8


EXECUTION
VERSION



 





$158,000,000




CREDIT AGREEMENT




dated as of April 12, 2007,




among




VSS-CAMBIUM MERGER CORP.

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

as Borrower,




VSS-CAMBIUM HOLDINGS, LLC

and

THE OTHER GUARANTORS PARTY HERETO,

as Guarantors,




THE LENDERS PARTY HERETO




and




CREDIT SUISSE SECURITIES (USA) LLC

and

BARCLAYS CAPITAL,

the investment banking division of BARCLAYS BANK PLC,

as Co-Lead Arrangers and Joint Bookmanagers,




and




BARCLAYS BANK PLC,

as Administrative Agent and Collateral Agent,




and




CREDIT SUISSE SECURITIES (USA) LLC,

as Co-Syndication Agent




and




BNP PARIBAS,

as Co-Syndication Agent

and




TD SECURITIES (USA) LLC,

Documentation Agent




Cahill Gordon & Reindel llp

80 Pine Street

New York, NY 10005




 















 








TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	DEFINITIONS
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01 Defined Terms
	 	 	2	 
	SECTION 1.02 Classification of Loans and Borrowings
	 	 	38	 
	SECTION 1.03 Terms Generally
	 	 	38	 
	SECTION 1.04 Accounting Terms; GAAP
	 	 	38	 
	SECTION 1.05 Resolution of Drafting Ambiguities
	 	 	39	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	THE CREDITS
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01 Commitments
	 	 	39	 
	SECTION 2.02 Loans
	 	 	39	 
	SECTION 2.03 Borrowing Procedure
	 	 	40	 
	SECTION 2.04 Evidence of Debt; Repayment of Loans
	 	 	41	 
	SECTION 2.05 Fees
	 	 	42	 
	SECTION 2.06 Interest on Loan
	 	 	43	 
	SECTION 2.07 Termination and Reduction of Commitments
	 	 	43	 
	SECTION 2.08 Interest Elections
	 	 	44	 
	SECTION 2.09 Amortization of Term Borrowings
	 	 	45	 
	SECTION 2.10 Optional and Mandatory Prepayments of Loans
	 	 	45	 
	SECTION 2.11 Alternate Rate of Interest
	 	 	49	 
	SECTION 2.12 Yield Protection
	 	 	49	 
	SECTION 2.13 Breakage Payments
	 	 	50	 
	SECTION 2.14 Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	 	 	51	 
	SECTION 2.15 Taxes
	 	 	53	 
	SECTION 2.16 Mitigation Obligations; Replacement of Lenders
	 	 	55	 
	SECTION 2.17 [Reserved]
	 	 	55	 
	SECTION 2.18 Letters of Credit
	 	 	56	 
	SECTION 2.19 Increase in Commitments
	 	 	61	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01 Organization; Powers
	 	 	63	 
	SECTION 3.02 Authorization; Enforceability
	 	 	63	 
	SECTION 3.03 No Conflicts
	 	 	63	 
	SECTION 3.04 Financial Statements; Projections
	 	 	63	 
	SECTION 3.05 Properties
	 	 	64	 
	SECTION 3.06 Intellectual Property
	 	 	65	 
	SECTION 3.07 Equity Interests and Subsidiaries
	 	 	65	 
	SECTION 3.08 Litigation; Compliance with Laws
	 	 	66	 






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	Section	 	Page
	SECTION 3.09 Agreements
	 	 	66	 
	SECTION 3.10 Federal Reserve Regulations
	 	 	66	 
	SECTION 3.11 Investment Company Act
	 	 	66	 
	SECTION 3.12 Use of Proceeds
	 	 	67	 
	SECTION 3.13 Taxes
	 	 	67	 
	SECTION 3.14 No Material Misstatements
	 	 	67	 
	SECTION 3.15 Labor Matters
	 	 	67	 
	SECTION 3.16 Solvency
	 	 	67	 
	SECTION 3.17 Employee Benefit Plans
	 	 	68	 
	SECTION 3.18 Environmental Matters
	 	 	68	 
	SECTION 3.19 Insurance
	 	 	69	 
	SECTION 3.20 Security Documents
	 	 	70	 
	SECTION 3.21 Acquisition Documents; Representations and Warranties in Acquisition Agreement
	 	 	71	 
	SECTION 3.22 Anti-Terrorism Law
	 	 	71	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	CONDITIONS TO CREDIT EXTENSIONS
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01 Conditions to Initial Credit Extension
	 	 	72	 
	SECTION 4.02 Conditions to All Credit Extensions
	 	 	75	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	AFFIRMATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01 Financial Statements, Reports, etc.
	 	 	76	 
	SECTION 5.02 Litigation and Other Notices
	 	 	78	 
	SECTION 5.03 Existence; Businesses and Properties
	 	 	79	 
	SECTION 5.04 Insurance
	 	 	79	 
	SECTION 5.05 Obligations and Taxes
	 	 	80	 
	SECTION 5.06 Employee Benefits
	 	 	81	 
	SECTION 5.07 Maintaining Records; Access to Properties and Inspections; Annual Meetings
	 	 	81	 
	SECTION 5.08 Use of Proceeds
	 	 	82	 
	SECTION 5.09 Compliance with Environmental Laws; Environmental Reports
	 	 	82	 
	SECTION 5.10 Interest Rate Protection
	 	 	82	 
	SECTION 5.11 Additional Collateral; Additional Guarantors
	 	 	82	 
	SECTION 5.12 Security Interests; Further Assurances
	 	 	84	 
	SECTION 5.13 Information Regarding Collateral
	 	 	84	 
	SECTION 5.14 Affirmative Covenants with Respect to Leases
	 	 	85	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	NEGATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01 Indebtedness
	 	 	85	 
	SECTION 6.02 Liens
	 	 	86	 
	SECTION 6.03 Sale and Leaseback Transactions
	 	 	89	 






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	Section	 	Page
	SECTION 6.04 Investment, Loan and Advances
	 	 	89	 
	SECTION 6.05 Mergers and Consolidations
	 	 	90	 
	SECTION 6.06 Asset Sales
	 	 	90	 
	SECTION 6.07 Acquisitions
	 	 	91	 
	SECTION 6.08 Dividends
	 	 	91	 
	SECTION 6.09 Transactions with Affiliates
	 	 	92	 
	SECTION 6.10 Financial Covenant
	 	 	93	 
	SECTION 6.11 Prepayments of Other Indebtedness; Modifications of Organizational Documents and Other Documents, etc.
	 	 	94	 
	SECTION 6.12 Limitation on Certain Restrictions on Subsidiaries
	 	 	95	 
	SECTION 6.13 Limitation on Issuance of Capital Stock
	 	 	95	 
	SECTION 6.14 Limitation on Creation of Subsidiaries
	 	 	96	 
	SECTION 6.15 Business
	 	 	96	 
	SECTION 6.16 Limitation on Accounting Changes
	 	 	96	 
	SECTION 6.17 Fiscal Year
	 	 	96	 
	SECTION 6.18 No Further Negative Pledge
	 	 	96	 
	SECTION 6.19 Anti-Terrorism Law; Anti-Money Laundering
	 	 	97	 
	SECTION 6.20 Embargoed Person
	 	 	97	 
	SECTION 6.21 Additional Holding Companies
	 	 	97	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	GUARANTEE
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.01 The Guarantee
	 	 	98	 
	SECTION 7.02 Obligations Unconditional
	 	 	98	 
	SECTION 7.03 Reinstatement
	 	 	99	 
	SECTION 7.04 Subrogation; Subordination
	 	 	99	 
	SECTION 7.05 Remedies
	 	 	100	 
	SECTION 7.06 Instrument for the Payment of Money
	 	 	100	 
	SECTION 7.07 Continuing Guarantee
	 	 	100	 
	SECTION 7.08 General Limitation on Guarantee Obligations
	 	 	100	 
	SECTION 7.09 Release of Guarantors
	 	 	100	 
	SECTION 7.10 Right of Contribution
	 	 	100	 
	 
	 	 	 	 
	ARTICLE VIII


EVENTS OF DEFAULT
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.01 Events of Default
	 	 	101	 
	SECTION 8.02 Rescission
	 	 	103	 
	SECTION 8.03 Application of Proceeds
	 	 	104	 
	SECTION 8.04 Certain Cure Rights
	 	 	104	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01 Appointment and Authority
	 	 	105	 
	SECTION 9.02 Rights as a Lender
	 	 	105	 






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	Section	 	Page
	SECTION 9.03 Exculpatory Provisions
	 	 	106	 
	SECTION 9.04 Reliance by Agent
	 	 	106	 
	SECTION 9.05 Delegation of Duties
	 	 	107	 
	SECTION 9.06 Resignation of Agent
	 	 	107	 
	SECTION 9.07 Non-Reliance on Agent and Other Lenders
	 	 	107	 
	SECTION 9.08 No Other Duties, etc.
	 	 	108	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	SECTION 10.01 Notices
	 	 	108	 
	SECTION 10.02 Waivers; Amendment
	 	 	110	 
	SECTION 10.03 Expenses; Indemnity; Damage Waiver
	 	 	114	 
	SECTION 10.04 Successors and Assigns
	 	 	115	 
	SECTION 10.05 Survival of Agreement
	 	 	118	 
	SECTION 10.06 Counterparts; Integration; Effectiveness
	 	 	118	 
	SECTION 10.07 Severability
	 	 	118	 
	SECTION 10.08 Right of Setoff
	 	 	118	 
	SECTION 10.09 Governing Law; Jurisdiction; Consent to Service of Process
	 	 	119	 
	SECTION 10.10 Waiver of Jury Trial
	 	 	119	 
	SECTION 10.11 Headings
	 	 	120	 
	SECTION 10.12 Treatment of Certain Information; Confidentiality
	 	 	120	 
	SECTION 10.13 USA PATRIOT Act Notice
	 	 	120	 
	SECTION 10.14 Interest Rate Limitation
	 	 	120	 
	SECTION 10.15 Lender Addendum
	 	 	121	 
	SECTION 10.16 Obligations Absolute
	 	 	121	 






	 	 	 
	ANNEXES
	 	 
	 
	 	 
	Annex I

	 	Applicable Margin
	Annex II

	 	Amortization Table
	Annex III

	 	Incremental Term Loan
	 
	 	 
	SCHEDULES
	 	 
	 
	 	 
	Schedule 1.01(a)

	 	Refinancing Indebtedness to Be Repaid
	Schedule 1.01(b)

	 	Subsidiary Guarantors
	Schedule 3.03

	 	Governmental Approvals; Compliance with Laws
	Schedule 3.06(a)

	 	Intellectual Property Claims
	Schedule 3.06(c)

	 	Violations or Proceedings
	Schedule 3.09

	 	Material Contracts
	Schedule 3.18

	 	Environmental Matters
	Schedule 3.19

	 	Insurance
	Schedule 3.21

	 	Acquisition Documents
	Schedule 4.01(g)

	 	Local Counsel
	Schedule 6.01(b)

	 	Existing Indebtedness
	Schedule 6.02(c)

	 	Existing Liens
	Schedule 6.04(b)

	 	Existing Investments






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	Schedule 6.09

	 	Affiliate Transactions
	 
	EXHIBITS
	 	 
	 
	Exhibit A

	 	Form of Administrative Questionnaire
	Exhibit B

	 	Form of Assignment and Assumption
	Exhibit C

	 	Form of Borrowing Request
	Exhibit D

	 	Form of Compliance Certificate
	Exhibit E

	 	Form of Interest Election Request
	Exhibit F

	 	Form of Joinder Agreement
	Exhibit G

	 	Form of Landlord Access Agreement
	Exhibit H

	 	Form of LC Request
	Exhibit I

	 	Form of Lender Addendum
	Exhibit J

	 	[Reserved]
	Exhibit K-1

	 	Form of Term Note
	Exhibit K-2

	 	Form of Revolving Note
	Exhibit L-1

	 	Form of Perfection Certificate
	Exhibit L-2

	 	Form of Perfection Certificate Supplement
	Exhibit M

	 	Form of Security Agreement
	Exhibit N

	 	Form of Opinion of Company Counsel
	Exhibit O

	 	Form of Solvency Certificate
	Exhibit P

	 	Form of Intercompany Note
	Exhibit Q

	 	Form of Non-Bank Certificate








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CREDIT AGREEMENT




          This CREDIT AGREEMENT (this “Agreement”) dated as of April 12, 2007, among VSS-Cambium Merger
Corp., a Delaware corporation (“Borrower”), VSS-Cambium Holdings, LLC, a Delaware limited
liability company (“Holdings”), the Subsidiary Guarantors (such term and each other capitalized
term used but not defined herein having the meaning given to it in Article I), the Lenders,
Credit Suisse Securities (USA) LLC as co-syndication agent (in such capacity, “Co-Syndication
Agent”), BNP Paribas, as co-syndication agent (in such capacity, “Co-Syndication Agent” and
together with the other Co-Syndication Agent, the “Syndication Agents”), TD Securities (USA) LLC,
as documentation agent (in such capacity, “Documentation Agent”), and Barclays Bank PLC as
administrative agent (in such capacity, “Administrative Agent”) for the Lenders and as collateral
agent (in such capacity, “Collateral Agent”) for the Secured Parties and the Issuing Bank.




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 Borrower with and into
Target, with Target surviving the merger.




          WHEREAS, the Equity Financing shall be consummated simultaneously herewith.




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




          WHEREAS, after the consummation of the Acquisition on the Closing Date, Borrower will cause
Target to file a certificate of merger (the “Merger Certificate”) with the Secretary of State of
Delaware and will effect a merger (the “Merger”) of Borrower with and into Target, with Target
surviving the Merger.




          WHEREAS, Borrower has requested the Lenders to extend credit in the form of (a) Tranche B
Loans on the Closing Date, in an aggregate principal amount not in excess of $128,000,000, and
(b) Revolving Loans at any time and from time to time prior to the Revolving Maturity Date, in an
aggregate principal amount at any time outstanding not in excess of $30,000,000, none of which may
be drawn on the Closing Date.




          WHEREAS, Borrower has requested the Issuing Bank to issue letters of credit, in an aggregate
face amount at any time outstanding not in excess of $5,000,000, to support payment obligations
incurred in the ordinary course of business by Borrower and its Subsidiaries.




          WHEREAS, the proceeds of the Loans are to be used in accordance with Section 3.12.




          WHEREAS, Borrower shall enter into the Senior Unsecured Note Purchase Agreement providing for
the issuance of Senior Unsecured Notes in the aggregate original principal amount of up to
$50,000,000 simultaneously herewith.














 








          NOW, THEREFORE, the Lenders are willing to extend such credit to Borrower and the Issuing Bank
is willing to issue letters of credit for the account of Borrower on the terms and subject to the
conditions set forth herein. Accordingly, the parties hereto agree as follows:




ARTICLE I




DEFINITIONS




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




          “ABR,” when used in reference to any Loan or Borrowing, is used when such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate
Base Rate.




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




          “ABR Loan” shall mean any ABR Term Loan or ABR Revolving Loan.




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




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




          “Acquired Business” shall have the meaning assigned to such term in the first recital hereto.




          “Acquisition” shall have the meaning assigned to such term in the first recital hereto.




          “Acquisition Agreement” shall have the meaning assigned to such term in the first recital
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.




          “Acquisition Documents” shall mean the collective reference to the Acquisition Agreement and
the other documents listed on Schedule 3.21.




-2-









 








          “Adjusted LIBOR Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest
Period, (a) an interest rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%)
equal to the LIBOR Rate for such Eurodollar Borrowing in effect for such Interest Period divided by
(b) 1 minus the Statutory Reserves (if any) for such Eurodollar Borrowing for such Interest Period.




          “Administrative Agent” shall have the meaning assigned to such term in the preamble hereto and
includes each other person appointed as the successor pursuant to Article X.




          “Administrative Agent Fee” shall have the meaning assigned to such term in
Section 2.05(b).




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




          “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 6.09, 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.




          “Agents” shall mean the Administrative Agent and the Collateral Agent; and “Agent” shall mean
any of them.




          “Agreement” shall have the meaning assigned to such term in the preamble hereto.




          “Alternate Base Rate” shall mean, for any day, a rate per annum (rounded upward, if necessary,
to the nearest 1/100th of 1%) equal to the greater of (a) the Base Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 0.50%. If the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of
the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of
the preceding sentence until the circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Base Rate or the Federal Funds Effective
Rate shall be effective on the effective date of such change in the Base Rate or the Federal Funds
Effective Rate, respectively.




          “Anti-Terrorism Laws” shall have the meaning assigned to such term in Section 3.22.




          “Applicable Fee” shall mean, for any day, with respect to any Commitment, the applicable
percentage set forth in Annex I under the caption “Applicable Fee”.




          “Applicable Margin” shall mean, for any day, (i) with respect to any Tranche B Loan, (x) 2.75%
per annum for Eurodollar Loans and (y) 1.75% for ABR Loans and (ii) with respect to any Revolving
Loan, the applicable percentage set forth in Annex I under the columns “Eurodollar” or
“ABR”, as applicable for the appropriate Type of Revolving Loan that is opposite the applicable
“Level” of the Borrower as of the date of such Borrowing.




          “Applicable Percentage” shall mean, with respect to any Lender, the percentage of the total
Loans and Commitments represented by such Lender’s Loans and Commitments.




-3-









 








          “Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.




          “Arrangers” shall mean Credit Suisse Securities (USA) LLC and Barclays Capital, a division of
Barclays Bank PLC, as co-lead arrangers.




          “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) Borrower, (ii) any Subsidiary Guarantor or (iii) other than
for purposes of Section 6.06, any other Subsidiary.




          “Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is required by Section
10.04(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit B, or any other form approved by the Administrative Agent.




          “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
Borrower’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.




          “Bailee Letter” shall have the meaning assigned thereto in the Security Agreement.




          “Base Rate” shall mean, for any day, a rate per annum that is equal to the corporate base rate
of interest established by the Administrative Agent from time to time for purposes of calculating
its “prime rate”; each change in the Base Rate shall be effective on the date such change is
effective. The corporate base rate is not necessarily the lowest rate charged by the
Administrative Agent to its customers.




          “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.




          “Borrower” shall have the meaning assigned to such term in the preamble hereto.




          “Borrowing” shall mean Loans of the same Class and Type, made, converted or continued on the
same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect.




-4-









 








          “Borrowing Request” shall mean a request by Borrower in accordance with the terms of
Section 2.03 and substantially in the form of Exhibit C, or such other form as
shall be approved by the Administrative Agent.




          “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; provided, however, that when used in
connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank market.




          “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 Borrower 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 Borrower (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) and (ii) any portion of such increase attributable solely to acquisitions
of Capital Assets in Permitted Acquisitions.




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


-5-









 







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 Borrower 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:





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




     (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) upon and following an IPO, (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



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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.




          “Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking into effect of any law, treaty, order, policy, rule or
regulation, (b) any change in any law, treaty, order, policy, rule or regulation or in the
administration, interpretation or application thereof by any Governmental Authority or (c) the
making or issuance of any request, guideline or directive (whether or not having the force of law)
by any Governmental Authority.




          “Charges” shall have the meaning assigned to such term in Section 10.14.




          “Class,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Revolving Loans, Tranche B Loans, or Incremental Term Loans
that are not Tranche B Loans and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment, or Tranche B Commitment in each case, under this Agreement as
originally in effect or pursuant to Section 2.19, of which such Loan, Borrowing or
Commitment shall be a part.




          “Closing Date” shall mean the date of the initial Credit Extension hereunder.




          “Code” shall mean the Internal Revenue Code of 1986.




          “Collateral” shall mean, collectively, all of the Security Agreement Collateral, the Mortgaged
Property and all other property of whatever kind and nature subject or purported to be subject from
time to time to a Lien under any Security Document.




          “Collateral Agent” shall have the meaning assigned to such term in the preamble hereto.




          “Commitment”
shall mean, with respect to any Lender, such Lender’s Revolving Commitment or
Tranche B Commitment and any Commitment to make Tranche B Loans or Revolving Loans of a new Class
extended by such Lender as provided in Section 2.19.




          “Commitment Fee” shall have the meaning assigned to such term in Section 2.05(a).




          “Companies” shall mean Holdings and its Subsidiaries; and “Company” shall mean any one of
them.




          “Compliance Certificate” shall mean a certificate of a Financial Officer substantially in the
form of Exhibit D.




          “Confidential Information Memorandum” shall mean that certain confidential information
memorandum dated as of March, 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.




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          “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
6.10 only, the Cure Amount, if any, received by Holdings and contributed to Borrower in cash
for such period and permitted to be included in Consolidated EBITDA pursuant to Section
8.04 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 Borrower only if a corresponding
amount would be permitted at the date of determination to be distributed to Borrower 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):





     (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 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



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     (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.




          Other than for purposes of calculating Excess Cash Flow, 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 Administrative Agent 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.




          “Consolidated Indebtedness” shall mean, as at any date of determination, the aggregate amount
of all Indebtedness and all LC Exposure of Borrower 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 Borrower 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
Borrower and its Subsidiaries for such period;




     (b) commissions, discounts and other fees and charges owed by Borrower 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 Borrower or any of its Subsidiaries for such period;




     (d) cash contributions to any employee stock ownership plan or similar trust made by
Borrower 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 Borrower 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 Borrower or
any of its Subsidiaries for such period;




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



-9-









 






     (g) all interest on any Indebtedness of Borrower 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, 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 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
Borrower 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 Borrower) in
which any person other than Borrower 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
Borrower or (subject to clause (b) below) any of its Subsidiaries during such period;




     (b) the net income of any Subsidiary of Borrower 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 Borrower’s 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 Borrower or any of its
Subsidiaries upon any Asset Sale (other than any dispositions in the ordinary course of
business) by Borrower 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 Borrower or any of its Subsidiaries during such
period.



-10-









 





          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 6.08(c) and (d).




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




          “Contested Collateral Lien Conditions” shall mean, with respect to any Permitted Lien of the
type described in clauses (a), (b), (e) and (f) of Section 6.02, the following conditions:





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




     (b) at the option and at the request of the Administrative Agent, to the extent such
Lien is in an amount in excess of $500,000, the appropriate Loan Party shall maintain cash
reserves in an amount sufficient to pay and discharge such Lien and the Administrative
Agent’s reasonable estimate of all interest and penalties related thereto; and




     (c) such Lien shall in all respects be subject and subordinate in priority to the Lien
and security interest created and evidenced by the Security Documents, except if and to the
extent that the Requirement of Law creating, permitting or authorizing such Lien provides
that such Lien is or must be superior to the Lien and security interest created and
evidenced by the Security Documents.



          “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.




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          “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.




          “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.




          “Control Agreement” shall have the meaning assigned to such term in the Security Agreement.




          “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, Borrower or any
other portfolio companies.




          “Credit Extension” shall mean, as the context may require, (i) the making of a Loan by a
Lender or (ii) the issuance of any Letter of Credit, or the amendment, extension or renewal of any
existing Letter of Credit, by the Issuing Bank.




          “Cure Amount” shall have the meaning assigned to such term in Section 8.04.




          “Cure Right” shall have the meaning assigned to such term in Section 8.04.




          “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 6.01).




          “Debt Service” shall mean, for any period, Cash Interest Expense for such period plus
scheduled principal amortization of all Indebtedness for such period.




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




          “Default Rate” shall have the meaning assigned to such term in Section 2.06(c).




          “Disqualified Capital Stock” shall mean any (A) MIP Units 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 Final 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 Final Maturity Date, or (c) contains any repurchase
obligation which may come into effect prior to payment in full of all Obligations.




-12-









 








          “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.




          “Documentation Agent” shall have the meaning assigned to such term in the preamble hereto.




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




          “Domestic Subsidiary” shall mean any Subsidiary that is organized or existing under the laws
of the United States, any state thereof or the District of Columbia.




          “Eligible Assignee” shall mean (a) if the assignment does not include assignment of a
Revolving Commitment, (i) any Lender, (ii) an Affiliate of any Lender, (iii) an Approved Fund and
(iv) any other person approved by the Administrative Agent (such approval not to be unreasonably
withheld or delayed) and (b) if the assignment includes assignment of a Revolving Commitment,
(i) any Revolving Lender and (ii) any other person approved by the Administrative Agent, the
Issuing Bank and Borrower (each such approval not to be unreasonably withheld or delayed);
provided that (x) no approval of Borrower shall be required during the continuance of a Default or
prior to the completion of the primary syndication of the Commitments and Loans (as determined by
the Administrative Agent) and (y) “Eligible Assignee” shall not include Borrower or any of its
Affiliates or Subsidiaries or any natural person.




          “Embargoed Person” shall have the meaning assigned to such term in Section 6.20.




          “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.




-13-









 








          “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 Borrower 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.




          “Equipment” shall have the meaning assigned to such term in the Security Agreement.




          “Equity Financing” shall mean the cash equity investment in Holdings by the Equity Investors
as the same is further invested in cash equity in Borrower on or prior to the Closing Date, in an
amount not less than $135.0 million on terms and conditions satisfactory to the Administrative
Agent (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 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 issuance or sale 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.




-14-









 








          “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 Company 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 Company
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 Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal from any Plan or Multiemployer Plan; (h) the receipt by any Company 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 Company.




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




          “Eurodollar Loan” shall mean any Eurodollar Revolving Loan or Eurodollar Term Loan.




          “Eurodollar Revolving Borrowing” shall mean a Borrowing comprised of Eurodollar Revolving
Loans.




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




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




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




          “Event of Default” shall have the meaning assigned to such term in Section 8.01.




          “Excess Amount” shall have the meaning assigned to such term in Section 2.10(i).




          “Excess Cash Flow” shall mean, for any Excess Cash Flow Period, Consolidated EBITDA for such
Excess Cash Flow Period, minus, without duplication:





     (a) Debt Service for such Excess Cash Flow Period;



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     (b) any prepayments of Tranche B Loans, and any prepayments of Revolving Loans to the
extent accompanied by corresponding permanent reductions in the Revolving Commitments,
during such Excess Cash Flow Period, in each case other than (i) any voluntary prepayments
and (ii) amounts already reflected in Debt Service; 




     (c) Capital Expenditures during such Excess Cash Flow Period (excluding Capital
Expenditures made in such Excess Cash Flow Period where a certificate in the form
contemplated by the following clause (d) was previously delivered) that are paid in cash;
provided, however, that Capital Expenditures, to the extent financed with Excluded
Issuances, shall not reduce Excess Cash Flow;




     (d) Capital Expenditures that Borrower or any of its Subsidiaries shall, during such
Excess Cash Flow Period, become obligated to make but that are not made during such Excess
Cash Flow Period; provided that Borrower shall deliver a certificate to the Administrative
Agent not later than 90 days after the end of such Excess Cash Flow Period, signed by a
Responsible Officer of Borrower and certifying that such Capital Expenditures will be made
in the immediately following Excess Cash Flow Period; provided, however, that Capital
Expenditures, to the extent financed with Excluded Issuances, shall not reduce Excess Cash
Flow;




     (e) the aggregate amount of expenditures made in cash during such period pursuant to
Sections 6.04(e) and (i) and 6.07(e) (including contingent or
deferred payments paid in cash during such Excess Cash Flow Period); provided,
however, that Capital Expenditures and Permitted Acquisitions, to the extent financed with
Excluded Issuances, shall not reduce Excess Cash Flow;




     (f) taxes of Holdings and its Subsidiaries that were paid in cash during such Excess
Cash Flow Period or will be paid within six months after the end of such Excess Cash Flow
Period and for which reserves have been established;




     (g) Permitted Tax Distributions that are paid during the respective Excess Cash Flow
Period or will be paid within six months after the close of such Excess Cash Flow Period;




     (h) the absolute value of the difference, if negative, of the amount of Net Working
Capital at the end of the prior Excess Cash Flow Period (or the beginning of the Excess Cash
Flow Period in the case of the first Excess Cash Flow Period) over the amount of Net Working
Capital at the end of such Excess Cash Flow Period;




     (i) Permitted Management and Fees and Expenses paid in cash during such Excess Cash
Flow Period;




     (j) losses excluded from the calculation of Consolidated Net Income by operation of
clause (c) or (h) of the definition thereof that are paid in cash during such Excess Cash
Flow Period;




     (k) to the extent added to determine Consolidated EBITDA, all items that did not result
from a cash payment to Borrower or any of its Subsidiaries on a consolidated basis;




     (l) advances on royalties paid in cash during such Excess Cash Flow Period; and



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     (m) development liabilities with respect to the Hillsborough County Schools and
deferred compensation in an amount not to exceed $225,000 and $100,000, respectively, on an
annual basis and $1,050,000 and $500,000, respectively, in the aggregate; in each case, to
the extent paid in cash during such Excess Cash Flow Period;


provided that any amount deducted pursuant of any of the foregoing clauses that will be paid after
the close of such Excess Cash Flow Period shall not be deducted again in a subsequent Excess Cash
Flow Period; plus, without duplication:





     (i) the difference, if positive, of the amount of Net Working Capital at the end of the
prior Excess Cash Flow Period (or the beginning of the Excess Cash Flow Period in the case
of the first Excess Cash Flow Period) over the amount of Net Working Capital at the end of
such Excess Cash Flow Period;




     (ii) all proceeds received during such Excess Cash Flow Period of any Indebtedness to
the extent used to finance any Capital Expenditure (other than Indebtedness under this
Agreement to the extent there is no corresponding deduction to Excess Cash Flow above in
respect of the use of such borrowings);




     (iii) to the extent any permitted Capital Expenditures referred to in clause (d) above
do not occur in the Excess Cash Flow Period specified in the certificate of Borrower
provided pursuant to clause (d) above, such amounts of Capital Expenditures that were not so
made in the Excess Cash Flow Period specified in such certificates;




     (iv) any income or gain received in cash (other than from a Subsidiary) during such
period, which investments were made pursuant to Section 6.04(e) or (i)
(other than investments made from Excluded Issuances);




     (v) income or gain excluded from the calculation of Consolidated Net Income by
operation of clause (c) or (h) of the definition thereof that is realized in cash during
such Excess Cash Flow Period (except to the extent such gain is subject to
Section 2.10(c), (d), (e), (f) or (g)); and




     (vi) to the extent subtracted in determining Consolidated EBITDA, all items that did
not result from a cash payment by Borrower or any of its Subsidiaries on a consolidated
basis during such Excess Cash Flow Period.



          “Excess Cash Flow Period” shall mean (i) the period taken as one accounting period from
January 1, 2008 and ending on December 31, 2008 and (ii) each fiscal year of Borrower thereafter.




          “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.




          “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, the Issuing
Bank or any other recipient of any payment to be made by or on account of any obligation of
Borrower hereunder, (a) taxes imposed on or measured by its overall net income, profits or gains




-17-









 







(however denominated), franchise taxes imposed on it (in lieu of net income taxes) and branch
profits taxes imposed on it, by a jurisdiction (or any political subdivision thereof) as a result
of the recipient being organized, is deemed to be doing business in (other than business deemed to
arise by virtue of entering into this Agreement, any other Loan Document or any of the transactions
contemplated under such documents) in or having its principal office or, in the case of any Lender,
its applicable lending office in or a present or former connection with (except for present or
former connections arising by virtue of entering into this Agreement, any Loan Document or any of
the transactions contemplated under such documents) such jurisdiction and (b) in the case of a
Foreign Lender, any U.S. federal withholding tax that (i) is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new lending
office), except (x) to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive additional amounts
from Borrower with respect to such withholding tax pursuant to Section 2.15(a) or (y) if
such Foreign Lender is an assignee pursuant to a request by Borrower under Section 2.16;
provided that this subclause (b)(i) shall not apply to any Tax imposed on a Lender in connection
with an interest or participation in any Loan or other obligation that such Lender was required to
acquire pursuant to Section 2.14(d), or (ii) is attributable to such Foreign
Lender’s failure to comply with Section 2.15(e).




          “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.




          “Executive Order” shall have the meaning assigned to such term in Section 3.22.




          “Existing Lien” shall have the meaning assigned to such term in Section 6.02(c).




          “Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System of the United
States arranged by federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for the day for such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing selected by it.




          “Fees” shall mean the Commitment Fees, the Administrative Agent Fees, the LC Participation
Fees and the Fronting Fees.




          “Final Maturity Date” shall mean the latest of the Revolving Maturity Date, the Tranche B
Maturity Date, and any Incremental Term Loan Maturity Date applicable to existing Incremental Term
Loans, as of any date of determination.




          “Financial Officer” of any person shall mean the chief financial officer of such person.




          “FIRREA” shall mean the Financial Institutions Reform, Recovery and Enforcement Act of 1989,
as amended.




          “First Lien Leverage Ratio” shall mean the ratio of (a)(i) for the first four full fiscal
quarters after the Closing Date, Consolidated Indebtedness, less the aggregate amount of Senior
Unsecured Notes and any other unsecured Indebtedness permitted under this Agreement of Borrower and
its Subsidiaries on such date, less Letters of Credit outstanding not to exceed $5.0 million in the
aggregate


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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 average Revolving Exposure for such Test Period,
less the Revolving Exposure at such date of determination, less the aggregate amount of Senior
Unsecured Notes and any other unsecured Indebtedness permitted under this Agreement of Borrower and
its Subsidiaries on such date, less Letters of Credit outstanding not to exceed $5.0 million, less
the average amount for such Test Period of non restricted cash and Cash Equivalents that would
appear on the consolidated balance sheet of Borrower in conformity with GAAP for such Test Period
on such date, to (b) Consolidated EBITDA for the Test Period then most recently ended.




          “Foreign Lender” shall mean any Lender that is not, for United States federal income tax
purposes, (i) an individual who is a citizen or resident of the United States, (ii) a corporation,
partnership or other entity treated as a corporation or partnership created or organized in or
under the laws of the United States, or any political subdivision thereof, (iii) an estate whose
income is subject to U.S. federal income taxation regardless of its source or (iv) a trust if a
court within the United States is able to exercise primary supervision over the administration of
such trust and one or more United States persons have the authority to control all substantial
decisions of such trust or a trust that has made a valid election to be treated as a U.S. person.




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




          “Fronting Fee” shall have the meaning assigned to such term in Section 2.05(c).




          “Fund” shall mean any person that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the ordinary course of
its business.




          “GAAP” shall mean generally accepted accounting principles in the United States applied on a
consistent basis.




          “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.




          “Guaranteed Obligations” shall have the meaning assigned to such term in Section 7.01.




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          “Guarantees” shall mean the guarantees issued pursuant to Article VII by Holdings and
the Subsidiary Guarantors.




          “Guarantors” shall mean Holdings and the Subsidiary Guarantors.




          “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 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 6.21. Holdings shall not
include any entity that has been released from its obligations under this Agreement in accordance
with Section 6.21.




          “Increase Effective Date” shall have the meaning assigned to such term in Section
2.19(a).




          “Incremental Term Loan” shall have the meaning assigned to such term in Section
2.19(a).




          “Incremental Term Loan Commitment” shall have the meaning assigned to such term in Section
2.19(a).




          “Incremental Term Loan Maturity Date” shall have the meaning assigned to such term in
Section 2.19(a).




          “Increase Joinder” shall have the meaning assigned to such term in Section 2.19(c).




          “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 6.01 and 8.01(f), 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


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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 deferred liability on any Person’s balance sheet in accordance with Statement of
Financial Accounting Standard No. 13.




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




          “Indemnitee” shall have the meaning assigned to such term in Section 10.03(b).




          “Information” shall have the meaning assigned to such term in Section 10.12.




          “Insurance Policies” shall mean the insurance policies and coverages required to be maintained
by each Loan Party which is an owner of Mortgaged Property with respect to the applicable Mortgaged
Property pursuant to Section 5.04 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 Loan 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 3.06(a).




          “Intercompany Note” shall mean a promissory note substantially in the form of
Exhibit P.




          “Interest Election Request” shall mean a request by Borrower to convert or continue a
Revolving Borrowing or Term Borrowing in accordance with Section 2.08(b), substantially in
the form of Exhibit E.




          “Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business Day of
each March, June, September and December to occur during any period in which such Loan is
outstanding, (b) with respect to any Eurodollar Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Loan with
an Interest Period of more than three months’ duration, the last day of such Interest Period that
occurs at intervals of three months’ duration after the first day of such Interest Period, (c) with
respect to any Revolving Loan, the Revolving Maturity Date or such earlier date on which the
Revolving Commitments are terminated in accordance with the terms and conditions of this Agreement
and (d) with respect to any Tranche B Loan, the Tranche B Maturity Date, or an Incremental Term
Loan Maturity Date, as the case may be.




          “Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day in the calendar month
that is one, two, three or six months thereafter, as Borrower may elect; provided that (a) if any
Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended


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to the next succeeding Business Day unless such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next preceding Business
Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.




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




          “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 Securities and Exchange
Commission in accordance with the Securities Act.




          “Issuing Bank” shall mean, as the context may require, (a) Barclays Bank PLC, in its capacity
as issuer of Letters of Credit issued by it; (b) any other Lender that may become an Issuing Bank
pursuant to Sections 2.18(j) and (k) in its capacity as issuer of Letters of Credit
issued by such Lender; or (c) collectively, all of the foregoing.




          “Joinder Agreement” shall mean a joinder agreement substantially in the form of
Exhibit F.




          “Landlord Access Agreement” shall mean a Landlord Access Agreement, substantially in the form
of Exhibit G, or such other form as may reasonably be acceptable to the Administrative
Agent.




          “LC Commitment” shall mean the commitment of the Issuing Bank to issue Letters of Credit
pursuant to Section 2.18. The amount of the LC Commitment shall initially be $5.0 million,
but in no event exceed the Revolving Commitment.




          “LC Disbursement” shall mean a payment or disbursement made by the Issuing Bank pursuant to a
drawing under a Letter of Credit.




          “LC Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate principal amount of all
Reimbursement Obligations outstanding at such time. The LC Exposure of any Revolving Lender at any
time shall mean its Pro Rata Percentage of the aggregate LC Exposure at such time.




          “LC Participation Fee” shall have the meaning assigned to such term in
Section 2.05(c).




          “LC Request” shall mean a request by Borrower in accordance with the terms of
Section 2.18(b) and substantially in the form of Exhibit H, or such other form as
shall be approved by the Administrative Agent.




          “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.




-22-









 








          “Lender Addendum” shall mean with respect to any Lender on the Closing Date, a lender addendum
in the form of Exhibit I, to be executed and delivered by such Lender on the Closing Date
as provided in Section 10.15.




          “Lenders” shall mean (a) the financial institutions that have become a party hereto pursuant
to a Lender Addendum and (b) any financial institution that has become a party hereto pursuant to
an Assignment and Assumption, other than, in each case, any such financial institution that has
ceased to be a party hereto pursuant to an Assignment and Assumption.




          “Letter of Credit” shall mean any Standby Letter of Credit issued or to be issued by an
Issuing Bank for the account of Borrower pursuant to Section 2.18.




          “Letter of Credit Expiration Date” shall mean the date which is fifteen days prior to the
Revolving Maturity Date.




          “LIBOR Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the
rate per annum equal to the arithmetic mean of the offered rates for deposits in dollars with a
term comparable to such Interest Period that appears on the Telerate British Bankers Assoc.
Interest Settlement Rates Page (as defined below) at approximately 11:00 a.m., London, England
time, on the second full Business Day preceding the first day of such Interest Period; provided,
however, that (i) if no comparable term for an Interest Period is available, the LIBOR Rate shall
be determined using the weighted average of the offered rates for the two terms most nearly
corresponding to such Interest Period and (ii) if there shall at any time no longer exist a
Telerate British Bankers Assoc. Interest Settlement Rates Page, “LIBOR Rate” shall mean, with
respect to each day during each Interest Period pertaining to Eurodollar Borrowings comprising part
of the same Borrowing, the rate per annum equal to the rate at which the Administrative Agent is
offered deposits in dollars at approximately 11:00 a.m., London, England time, two Business Days
prior to the first day of such Interest Period in the London interbank market for delivery on the
first day of such Interest Period for the number of days comprised therein and in an amount
comparable to its portion of the amount of such Eurodollar Borrowing to be outstanding during such
Interest Period. “Telerate British Bankers Assoc. Interest Settlement Rates Page” shall mean the
display designated as Page 3750 on the Telerate System Incorporated Service (or such other page as
may replace such page on such service for the purpose of displaying the rates at which dollar
deposits are offered by leading banks in the London interbank deposit market).




          “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 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.




          “Loan Documents” shall mean this Agreement, the Letters of Credit, the Notes (if any), and the
Security Documents, and, solely for purposes of paragraph (e) of Section 8.01, the
confidential Fee Letter, dated January 29, 2007, among Holdings, Credit Suisse Cayman Island
Branch, Credit Suisse Securities (USA) LLC and Barclays Bank PLC.




-23-









 








          “Loan Parties” shall mean Holdings, Borrower and the Subsidiary Guarantors.




          “Loans” shall mean, as the context may require, a Revolving Loan, a Tranche B Loan or any
Loans contemplated by Section 2.19).




          “Management Services Agreement” shall mean that certain Amended and Restated Limited
Liability Company Agreement of Holdings, dated as of April ___, 2007, as amended, restated,
supplemented or modified from time to time.




          “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 Borrower and its Subsidiaries, taken
as a whole; (b) material impairment of the ability of the Loan Parties to fully and timely perform
any of their obligations under any Loan Document; (c) material impairment of the rights of or
benefits or remedies available to the Lenders or the Collateral Agent under any Loan Document; or
(d) a material adverse effect on the Collateral or the Liens in favor of the Collateral Agent (for
its benefit and for the benefit of the other Secured Parties) on the Collateral or the priority of
such Liens.




          “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 3.09:





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




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




     (iii) any Contract pursuant to which the 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;




     (iv) any Contract with any Governmental Authority;




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




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




     (vii) any Contract that limits, or purports to limit, the ability of the 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 the 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;




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




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



-24-









 






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




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




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




     (xiii) any material licenses by which the 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;




     (xiv) 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




     (xv) any Contract pursuant to which the 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 Unsecured Note Purchase
Documents and (b) any other Indebtedness (other than the Loans and Letters of Credit) or Hedging
Obligations of Holdings or any of its Subsidiaries in an aggregate outstanding principal amount
exceeding $5.0 million. For purposes of determining Material Indebtedness, the “principal amount”
in respect of any Hedging Obligations of any Loan Party at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that such Loan Party would be required to pay if
the related Hedging Agreement were terminated at such time.




          “Maximum Rate” shall have the meaning assigned to such term in Section 10.14.




          “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 fourth recital
hereto.




          “MIP” shall mean VSS-Cambium Management LLC, a Delaware limited liability company.




          “MIP Units” shall mean the Equity Interests of MIP.




          “Mortgage” shall mean an agreement, including, but not limited to, a mortgage, deed of trust
or any other document, creating and evidencing a Lien on a Mortgaged Property, in form and
substance reasonably satisfactory to the Collateral Agent, 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 (a) each Real Property identified as a Mortgaged Property on
Schedule 8(a) to the Perfection Certificate dated the Closing Date and (b) each Real
Property, if any, which shall be subject to a Mortgage delivered after the Closing Date pursuant to
Section 5.11(c).




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          “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 Company or any ERISA Affiliate is then making or
accruing an obligation to make contributions; (b) to which any Company or any ERISA Affiliate has
within the preceding five plan years made contributions; or (c) with respect to which any Company
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 Borrower’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) Borrower’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 Loan
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 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.



          “Net Working Capital” shall mean, at any time, Consolidated Current Assets at such time minus
Consolidated Current Liabilities at such time.




          “Non-Guarantor Subsidiary” shall mean each Subsidiary that is not a Subsidiary Guarantor.




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          “Notes” shall mean any notes evidencing the Tranche B Loans or Revolving Loans issued pursuant
to this Agreement, if any, substantially in the form of Exhibit K-1 or K-2.




          “Notice of Intent to Cure” shall have the meaning assigned to such term in Section
5.01(k).




          “Obligations” shall mean (a) obligations of Borrower and the other Loan Parties from time to
time arising under or in respect of the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be made by Borrower and
the other Loan Parties under this Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of Reimbursement Obligations, interest thereon and obligations to
provide cash collateral in accordance with the terms of this Agreement and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of Borrower and the other Loan Parties under this Agreement and the
other Loan Documents, and (b) the due and punctual performance of all covenants, agreements,
obligations and liabilities of Borrower and the other Loan Parties under or pursuant to this
Agreement and the other Loan Documents.




          “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.




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




          “Participant” shall have the meaning assigned to such term in Section 10.04(d).




          “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.




          “Perfection Certificate” shall mean a certificate in the form of Exhibit L-1 or any
other form approved by the Collateral Agent, as the same shall be supplemented from time to time by
a Perfection Certificate Supplement or otherwise.




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          “Perfection Certificate Supplement” shall mean a certificate supplement in the form of
Exhibit L-2 or any other form approved by the Collateral Agent.




          “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:





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




     (ii) after giving effect to such transaction on a Pro Forma Basis, Borrower shall be in
compliance with the Total Leverage Ratio required by the covenant set forth in
Section 6.10 as of the most recent Test Period (assuming (x) for purposes of
Section 6.10, that such transaction, and all other Permitted Acquisitions
consummated since the first day of the relevant Test Period for each of the financial
covenants set forth in Section 6.10 ending on or prior to the date of such
transaction, had occurred on the first day of such relevant Test Period and (y) if such
transaction is to be consummated prior to the last day of the first Test Period for which
the covenant in Section 6.10 are required to be satisfied, the levels required for
such first Test Period shall be deemed to apply in determining compliance with such
covenants for purposes of this clause);




     (iii) no Company 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 6.01 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 Company
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;




     (iv) the person or business to be acquired shall be, or shall be engaged in, a business
of the type that Borrower and the Subsidiaries are permitted to be engaged in under
Section 6.15 and the property acquired in connection with any such transaction shall
be made subject to the Lien of the Security Documents and shall be free and clear of any
Liens, other than Permitted Collateral Liens;




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




     (vi) with respect to any transaction involving Acquisition Consideration of more than
$20.0 million, unless the Administrative Agent shall otherwise agree, Borrower shall have
provided the Administrative Agent and the Lenders 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 Borrower 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



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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 Lenders;




     (vii) 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 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 Final Maturity Date; and




     (viii) at least 10 Business Days prior to the proposed date of consummation of the
transaction, Borrower shall have delivered to the Agents and the Lenders 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 (a), (b), (c), (d), (e), (g), (i), (k) and (l) of
Section 6.02; provided, however, on the Closing Date or upon the date of delivery of each
additional Mortgage under Section 5.11 or 5.12, Permitted Collateral Liens shall
mean only those Liens set forth in Schedule B to the applicable Mortgage.




          “Permitted Cure Securities” means Equity Interests (if other than cash common equity interest
on terms and conditions reasonably acceptable to the Administrative Agent) of Holdings designated
as Permitted Cure Securities in an Officer’s Certificate delivered by Borrower 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 Borrower under Section 8.04 (the net proceeds of which
are contributed in cash to the common equity of Borrower).




          “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 6.02.




          “Permitted Management Fees and Expenses” shall mean such fees and expenses permitted under
Section 6.09(e).




-29-









 








          “Permitted Tax Distributions” shall mean payments, dividends or distributions by Borrower to
Holdings or the direct parent in order to pay consolidated or combined federal, state or local
taxes not payable directly by Borrower or any of its Subsidiaries (computed as if Holdings,
Borrower and its Subsidiaries were a single entity) which payments by Borrower (to Holdings or its
direct parent) are not in excess of the tax liabilities that would have been payable by Holdings,
Borrower and their Subsidiaries on a stand-alone basis.




          “person” shall mean any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.




          “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 Company or its ERISA Affiliate or with respect to which any
Company could incur liability (including under Section 4069 of ERISA).




          “Preferred Stock” shall mean, with respect to any person, any and all preferred or preference
Equity Interests (however designated) of such person whether now outstanding or issued after the
Closing Date.




          “Preferred Stock Issuance” shall mean the issuance or sale by Holdings or any of its
Subsidiaries of any Preferred Stock after the Closing Date (other than (x) as permitted by
Section 6.01 or (y) such issuance or sale of any Preferred Stock that is Qualified Capital
Stock to the Equity Investors).




          “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 Administrative Agent.




          “Pro Rata Percentage” of any Revolving Lender at any time shall mean the percentage of the
total Revolving Commitments of all Revolving Lenders represented by such Lender’s Revolving
Commitment.




          “property” shall mean any right, title or interest in or to property or assets of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity
Interests or other ownership interests of any person and whether now in existence or owned or
hereafter entered into or acquired, including all Real Property.




          “Property Material Adverse Effect” shall have the meaning assigned thereto in the 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.




-30-









 








          “Qualified Capital Stock” of any person shall mean any Equity Interests of such person that
are not Disqualified Capital Stock.




          “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 listed on Schedule 1.01(a)
of Holdings or any of its Subsidiaries.




          “Register” shall have the meaning assigned to such term in Section 10.04(c).




          “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.




          “Reimbursement Obligations” shall mean Borrower’s obligations under Section 2.18(e) to
reimburse LC Disbursements which have been made.




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




          “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.




          “Refinanced Term Loans” shall have the meaning assigned to such term in
Section 10.02(e).




          “Replacement Term Loans” shall have the meaning assigned to such term in
Section 10.02(e).




          “Required Class Lenders” shall mean (i) with respect to Tranche B Loans, Lenders having more
than 50% of all Tranche B Loans outstanding and (ii) with respect to Revolving Loans, Required
Revolving Lenders.




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          “Required Lenders” shall mean Lenders having more than 50% of the sum of all Loans
outstanding, LC Exposure and unused Revolving and Tranche B Loan Commitments.




          “Required Revolving Lenders” shall mean Lenders having more than 50% of all Revolving
Commitments or, after the Revolving Commitments have terminated, more than 50% of all Revolving
Exposure.




          “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.




          “Revolving Availability Period” shall mean the period from and including the Closing Date to
but excluding the earlier of (i) the Business Day preceding the Revolving Maturity Date and
(ii) the date of termination of the Revolving Commitments in accordance with the terms and
conditions of this Agreement.




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




          “Revolving Commitment” shall mean, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans hereunder up to the amount set forth on Schedule I to the
Lender Addendum executed and delivered by such Lender or by an Increase Joinder, or in the
Assignment and Assumption pursuant to which such Lender assumed its Revolving Commitment, as
applicable, as the same may be (a) reduced from time to time pursuant to Section 2.07 and
(b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04. The aggregate amount of the Lenders’ Revolving Commitments on the Closing
Date is $30.0 million.




          “Revolving Exposure” shall mean, with respect to any Lender at any time, the aggregate
principal amount at such time of all outstanding Revolving Loans of such Lender, plus the aggregate
amount at such time of such Lender’s LC Exposure.




          “Revolving Lender” shall mean a Lender with a Revolving Commitment.




          “Revolving Loan” shall mean a Loan made by the Lenders to Borrower pursuant to
Section 2.01(b). Each Revolving Loan shall either be an ABR Revolving Loan or a Eurodollar
Revolving Loan.




          “Revolving Maturity Date” shall mean the date which is 6 years after the Closing Date or, if
such date is not a Business Day, the first Business Day thereafter.




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          “Sale and Leaseback Transaction” has the meaning assigned to such term in
Section 6.03.




          “Secured Obligations” shall mean (a) the Obligations, (b) the due and punctual payment and
performance of all obligations of Borrower and the other Loan Parties under each Hedging Agreement
entered into with any counterparty that is a Secured Party and (c) the due and punctual payment and
performance of all obligations of Borrower and the other Loan Parties (including overdrafts and
related liabilities) under each Treasury Services Agreement entered into with any counterparty that
is a Secured Party.




          “Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral Agent,
each other Agent, the Lenders and each counterparty to a Hedging Agreement or Treasury Services
Agreement if at the date of entering into such Hedging Agreement or Treasury Services Agreement
such person was a Lender or an Affiliate of a Lender, in the case of each such Affiliate, and such
person executes and delivers to the Administrative Agent a letter agreement in form and substance
acceptable to the Administrative Agent pursuant to which such person (i) appoints the Collateral
Agent as its agent under the applicable Loan Documents and (ii) agrees to be bound by the
provisions of Sections 10.03 and 10.09 as if it were a Lender.




          “Securities Act” shall mean the Securities Act of 1933.




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




          “Security Agreement” shall mean a Security Agreement substantially in the form of
Exhibit M among the Loan Parties and Collateral Agent for the benefit of the Secured
Parties.




          “Security Agreement Collateral” shall mean all property pledged or granted as collateral
pursuant to the Security Agreement (a) on the Closing Date or (b) thereafter pursuant to
Section 5.11.




          “Security Documents” shall mean the Security Agreement, the Mortgages and each other security
document or pledge agreement delivered in accordance with applicable local or foreign law to grant
a valid, perfected security interest in any property as collateral for the Secured Obligations, and
all UCC or other financing statements or instruments of perfection required by this Agreement, the
Security Agreement, any Mortgage or any other such security document or pledge agreement to be
filed with respect to the security interests in property and fixtures created pursuant to the
Security Agreement or any Mortgage and any other document or instrument utilized to pledge or grant
or purport to pledge or grant a security interest or lien on any property as collateral for the
Secured Obligations.




          “Sellers” shall have the meaning assigned to such term in the first recital hereto.




          “Senior Unsecured Note Purchase Agreement” means (i) that certain note purchase agreement
dated as of the date hereof among Borrower, Holdings and the lenders party thereto, as amended,
restated, supplemented or modified from time to time to the extent permitted therein and (ii) any
other credit agreement, loan agreement, note agreement, promissory note, indenture or other
agreement or instrument evidencing or governing the terms of any indebtedness or other financial
accommodation that has been incurred to extend (subject to the limitations set forth herein) or
refinance in whole or in part the indebtedness and other obligations outstanding under (x) the note
purchase referred to


-33-









 







in clause (i) or (y) any subsequent Senior Unsecured Note Purchase Agreement, unless such
agreement or instrument expressly provides that it is not intended to be and is not a Senior
Unsecured Note Purchase Agreement hereunder. Any reference to the Senior Unsecured Note Purchase
Agreement hereunder shall be deemed a reference to any Senior Unsecured Note Purchase Agreement
then in existence.




          “Senior Unsecured Note Purchase Documents” means the Senior Unsecured Note Purchase Agreement
and the Transaction Documents as defined in the Senior Unsecured Note Purchase Agreement, including
the notes issued thereunder and the guarantees thereof issued under the Holdings Guaranty, dated as
of the Closing Date, made by Holdings in favor of the Senior Unsecured Note Purchasers and the
Subsidiary Guaranty, dated as of the Closing Date, made by the Subsidiaries of Borrower in favor of
the Senior Unsecured Note Purchasers.




          “Senior Unsecured Notes” means the notes issued under the Senior Unsecured Note Purchase
Agreement.




          “Senior Unsecured Note Purchasers” means each Person that is a purchaser under the Senior
Unsecured Note Purchase Agreement.




          “Sponsor” shall mean VSS Communications Partners IV, L.P.




          “Standby Letter of Credit” shall mean any standby letter of credit or similar instrument
issued for the purpose of supporting (a) workers’ compensation liabilities of Borrower or any of
its Subsidiaries, (b) the obligations of third-party insurers of Borrower or any of its
Subsidiaries arising by virtue of the laws of any jurisdiction requiring third-party insurers to
obtain such letters of credit, (c) performance, payment, deposit or surety obligations of Borrower
or any of its Subsidiaries if required by a Requirement of Law, in accordance with the ordinary
course of their business or in accordance with custom and practice in the industry or
(d) Indebtedness of Borrower or any of its Subsidiaries permitted to be incurred under
Section 6.01.




          “Statutory Reserves” shall mean for any Interest Period for any Eurodollar Borrowing the
average maximum rate at which reserves (including any marginal, supplemental or emergency reserves)
are required to be maintained during such Interest Period under Regulation D by member banks of the
United States Federal Reserve System in New York City with deposits exceeding one billion dollars
against “Eurocurrency liabilities” (as such term is used in Regulation D). Eurodollar Borrowings
shall be deemed to constitute Eurodollar liabilities and to be subject to such reserve requirements
without benefit of or credit for proration, exceptions or offsets which may be available from time
to time to any Lender under Regulation D.




          “Stock Option Plan” shall mean the Sopris Performance Share Plan 2004.




          “Subordinated Indebtedness” shall mean Indebtedness of Borrower or any Guarantor that is by
its terms subordinated in right of payment to the Obligations of Borrower and such Guarantor, as
applicable. For the avoidance of doubt, the Indebtedness under the Senior Unsecured Note Purchase
Documents is not Subordinated Indebtedness.




          “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


-34-









 







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 Borrower.




          “Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 1.01(b), and each
other Subsidiary that is or becomes a party to this Agreement pursuant to Section 5.11.




          “Survey” shall mean a survey of any Mortgaged Property (and all improvements thereon) which is
(a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where
such Mortgaged Property is located, (ii) dated (or redated) not earlier than six months prior to
the date of delivery thereof unless there shall have occurred within six months prior to such date
of delivery any exterior construction on the site of such Mortgaged Property or any easement, right
of way or other interest in the Mortgaged Property has been granted or become effective through
operation of law or otherwise with respect to such Mortgaged Property which, in either case, can be
depicted on a survey, in which events, as applicable, such survey shall be dated (or redated) after
the completion of such construction or if such construction shall not have been completed as of
such date of delivery, not earlier than 20 days prior to such date of delivery, or after the grant
or effectiveness of any such easement, right of way or other interest in the Mortgaged Property,
(iii) certified by the surveyor (in a manner reasonably acceptable to the Administrative Agent) to
the Administrative Agent, the Collateral Agent and the Title Company, (iv) complying in all
respects with the minimum detail requirements of the American Land Title Association as such
requirements are in effect on the date of preparation of such survey and (v) sufficient for the
Title Company to remove all standard survey exceptions from the title insurance policy (or
commitment) relating to such Mortgaged Property and issue endorsements reasonably requested by the
Collateral Agent (including, but not limited to, endorsements on matters relating to usury, first
loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public
road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax,
separate tax lot, and so-called comprehensive coverage over covenants and restrictions) or
(b) otherwise acceptable to the Collateral Agent.




          “Syndication Agents” shall have the meaning assigned to such term in the preamble hereto.




          “Target” shall have the meaning assigned to such term in the preamble 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 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.




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          “Tax Return” shall mean all returns, statements, filings, attachments and other documents or
certifications required to be filed in respect of Taxes.




          “Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.




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




          A “Test Period” in effect at any time shall mean the period of four consecutive fiscal
quarters of Borrower 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 5.01(a) or (b) (or, solely for
purposes of determining pro forma compliance with the covenant contained in Section 6.10,
pursuant to clause (ii) of the definition of “Permitted Acquisition” and Section 2.19,
prior to the date the first such financial statements are required to be so delivered, the most
recent period of four fiscal quarters of the Acquired Business ended on or prior to the Closing
Date).




          “Title Company” shall mean any title insurance company as shall be retained by Borrower and
reasonably acceptable to the Administrative Agent.




          “Title Policy” shall mean, with respect to each Mortgage on Real Property that is owned by
Borrower or any of its Subsidiaries, a policy of title insurance (or marked up title insurance
commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as
a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount
equal to not less than 105% of the fair market value of such Mortgaged Property and fixtures, which
policy (or such marked-up commitment) ”) shall (a) be issued by the Title Company, (b) to the
extent necessary, include such reinsurance arrangements (with provisions for direct access, if
necessary) as shall be reasonably acceptable to the Collateral Agent, (c) contain a “tie-in” or
“cluster” endorsement, if available under applicable law (i.e., policies which insure against
losses regardless of location or allocated value of the insured property up to a stated maximum
coverage amount), (d) have been supplemented by such endorsements (or where such endorsements are
not available, opinions of special counsel, architects or other professionals reasonably acceptable
to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including
endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving
credit, doing business, non-imputation, public road access, survey, variable rate, environmental
lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called
comprehensive coverage over covenants and restrictions), and (e) contain no exceptions to title
other than exceptions acceptable to the Collateral Agent.




          “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 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 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 Borrower in conformity with GAAP for such Test Period on such
date, to (b) Consolidated EBITDA for the Test Period then most recently ended.




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          “Tranche B Commitment” shall mean, with respect to each Lender, the commitment, if any, of
such Lender to make a Tranche B Loan hereunder on the Closing Date in the amount set forth on
Schedule I to the Lender Addendum executed and delivered by such Lender or by an Increase Joinder
or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Tranche B
Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to
Section 2.07 and (b) reduced or increased from time to time pursuant to assignments by or
to such Lender pursuant to Section 10.04. The initial aggregate amount of the Lenders’
Tranche B Commitments is $128,000,000.




          “Tranche B Lender” shall mean a Lender with a Tranche B Commitment or an outstanding Tranche B
Loan.




          “Tranche B Loan” shall mean the term loans made by the Lenders to Borrower pursuant to
Section 2.01(a) or by an Increase Joinder. Each Tranche B Loan shall be either an ABR Term
Loan or a Eurodollar Term Loan.




          “Tranche B Loan Repayment Date” shall have the meaning assigned to such term in
Section 2.09.




          “Tranche B Maturity Date” shall mean the date which is 6 years after the Closing Date or, if
such date is not a Business Day, the first Business Day thereafter.




          “Transaction Documents” shall mean the Acquisition Documents, the Senior Unsecured Note
Purchase Documents and the Loan Documents.




          “Transactions” shall mean, collectively, the transactions to occur on or prior to the Closing
Date pursuant to the Transaction Documents, including (a) the consummation of the Acquisition;
(b) the execution, delivery and performance of the Loan Documents and the initial borrowings
hereunder; (c) the Refinancing; (d) the Equity Financing; (e) the execution, delivery and
performance of the Senior Unsecured Note Purchase Documents and the borrowings thereunder; and
(f) the payment of all fees and expenses to be paid on or prior to the Closing Date and owing in
connection with the foregoing.




          “Transferred Guarantor” shall have the meaning assigned to such term in Section 7.09.




          “Treasury Services Agreement” shall mean any agreement relating to treasury, depositary and
cash management services or automated clearinghouse transfer of funds.




          “Type,” when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBOR Rate or the Alternate Base Rate.




          “UCC” shall mean the Uniform Commercial Code as in effect from time to time (except as
otherwise specified) in any applicable state or jurisdiction.




          “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.




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          “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.




          SECTION 1.02 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a
“Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Borrowing,” “Borrowing of Tranche B Loans”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class
and Type (e.g., a “Eurodollar Revolving Borrowing”) or by Priority Class (e.g., a “First Lien
Loan”).




          SECTION 1.03 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to
have the same meaning and effect as the word “shall.” Unless the context requires otherwise
(a) any definition of or reference to any Loan Document, agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other document as from time
to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any person
shall be construed to include such person’s successors and assigns, (c) the words “herein,”
“hereof” and “hereunder,” and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein
shall refer to such law or regulation as amended, modified or supplemented from time to time,
(f) 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, securities,
accounts and contract rights and (g) “on,” when used with respect to the Mortgaged Property or any
property adjacent to the Mortgaged Property, means “on, in, under, above or about.”




          SECTION 1.04 Accounting Terms; GAAP. 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 Borrower and the Required
Lenders. If at any time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and Borrower notifies Administrative Agent that
Borrower 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 Borrower that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have


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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
Loan Document, and Borrower, Administrative Agent or Required Lenders shall so request,
Administrative Agent, Lenders and Borrower 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 Required Lenders, not to be unreasonably withheld).




          SECTION 1.05 Resolution of Drafting Ambiguities. Each Loan Party acknowledges and agrees that it was represented by counsel in connection
with the execution and delivery of the Loan Documents to which it is a party, that it and its
counsel reviewed and participated in the preparation and negotiation hereof and thereof and that
any rule of construction to the effect that ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation hereof or thereof.




ARTICLE II




THE CREDITS




          SECTION 2.01 Commitments. Subject to the terms and conditions and relying upon the representations and warranties
herein set forth, each Lender agrees, severally and not jointly:





     (a) to make a Tranche B Loan to Borrower on the Closing Date in the principal amount
not to exceed its Tranche B Commitment; and




     (b) to make Revolving Loans to Borrower, at any time and from time to time after the
Closing Date until the earlier of the Revolving Maturity Date and the termination of the
Revolving Commitment of such Lender in accordance with the terms hereof, in an aggregate
principal amount at any time outstanding that will not result in such Lender’s Revolving
Exposure exceeding such Lender’s Revolving Commitment.



          Amounts paid or prepaid in respect of Tranche B Loans may not be reborrowed. Within the
limits set forth in clause (b) above and subject to the terms, conditions and limitations set forth
herein, Borrower may borrow, pay or prepay and reborrow Revolving Loans.




          SECTION 2.02 Loans.




          (a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders
ratably in accordance with their applicable Commitments; provided that the failure of any Lender to
make its Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it
being understood, however, that no Lender shall be responsible for the failure of any other Lender
to make any
Loan required to be made by such other Lender). Except for Loans deemed made pursuant to
Section 2.18(e)(ii), (x) ABR Loans comprising any Borrowing shall be in an aggregate
principal amount that is (i) an integral multiple of $250,000 and not less than $1.0 million or
(ii) equal to the remaining available balance of the applicable Commitments and (y) the Eurodollar
Loans comprising any Borrowing shall be in an aggregate principal amount that is (i) an integral
multiple of $500,000 and not less than $1.0 million or (ii) equal to the remaining available
balance of the applicable Commitments. 




          (b) Subject to Sections 2.11 and 2.12, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as Borrower may request pursuant to Section 2.03.
Each Lender may at


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its option make any Eurodollar Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of Borrower to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same time; provided that
Borrower shall not be entitled to request any Borrowing that, if made, would result in more than
six Eurodollar Borrowings outstanding hereunder at any one time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they commence on the same date,
shall be considered separate Borrowings.




          (c) Except with respect to Loans deemed made pursuant to Section 2.18(e)(ii), each
Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds to such account in New York City as the Administrative
Agent may designate or such other accounts as designated by the Administrative Agent not later than
noon, New York City time, and the Administrative Agent shall promptly credit the amounts so
received to an account as directed by Borrower in the applicable Borrowing Request maintained with
the Administrative Agent or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so received to the
respective Lenders.




          (d) Unless the Administrative Agent shall have received notice from a Lender prior to the date
(in the case of any Eurodollar Borrowing), and at least 2 hours prior to the time (in the case of
any ABR Borrowing), of any Borrowing that such Lender will not make available to the Administrative
Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent at the time of such Borrowing in
accordance with paragraph (c) above, and the Administrative Agent may, in reliance upon such
assumption, make available to Borrower on such date a corresponding amount. If the Administrative
Agent shall have so made funds available, then, to the extent that such Lender shall not have made
such portion available to the Administrative Agent, each of such Lender and Borrower severally
agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available to Borrower until
the date such amount is repaid to the Administrative Agent at (i) in the case of Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of
such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation. If such
Lender shall repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement, and
Borrower’s obligation to repay the Administrative Agent such corresponding amount pursuant to this
Section 2.02(d) shall cease. Borrower’s repayment of any of the Obligations pursuant to
this Section 2.02(d) shall not be deemed a waiver of any of the rights Borrower may have
against such Lender or release such Lender from any liability it may have to Borrower, in each
case, as a result of such Lender’s failure to satisfy its obligations under the terms of this
Agreement.




          (e) Notwithstanding any other provision of this Agreement, Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Revolving Maturity Date, Tranche B Maturity Date, or
Incremental Term Loan Maturity Date, as applicable.




          SECTION 2.03 Borrowing Procedure. To request a Revolving Borrowing or Term Borrowing, Borrower shall deliver, by hand
delivery, telecopier or electronic mail, a duly completed and executed Borrowing Request to the
Administrative Agent (i) in the case of a Eurodollar Borrowing, not later than noon, New York City
time, three Business Days before the date of the proposed Borrowing or (ii) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one


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Business Day before the date of the
proposed Borrowing. Each Borrowing Request shall be irrevocable and shall specify the following
information in compliance with Section 2.02:





     (a) whether the requested Borrowing is to be a Borrowing of Revolving Loans or
Tranche B Loans;




     (b) the aggregate amount of such Borrowing;




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




     (d) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;




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




     (f) the location and number of Borrower’s account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.02(c); and




     (g) that the conditions set forth in Sections 4.02(b)-(d) have been satisfied
as of the date of the notice.



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




          SECTION 2.04 Evidence of Debt; Repayment of Loans.




          (a) Promise to Repay. Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Tranche B Lender, the principal amount of each Tranche
B Loan of such Tranche B Lender as provided in Section 2.09 and (ii) to the Administrative
Agent for the account of each Revolving Lender, the then unpaid principal amount of each Revolving
Loan of such Revolving Lender on the Revolving Maturity Date.




          (b) Lender and Administrative Agent Records. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the Indebtedness of Borrower to such
Lender resulting from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under this Agreement. The
Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan
made hereunder, the Type and Class thereof and the Interest Period applicable thereto; (ii) the
amount of any principal or interest due and payable or to become due and payable from Borrower to
each Lender hereunder; and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof. The entries made in the
accounts maintained pursuant to this paragraph shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner affect
the obligations of Borrower to repay the Loans in accordance with their terms.




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          (c) Promissory Notes. Any Lender by written notice to Borrower (with a copy to the
Administrative Agent) may request that Loans of any Class made by it be evidenced by a promissory
note. In such event, Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) in the form of Exhibit K-1 or K-2, as the case may be.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one
or more promissory notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).




          SECTION 2.05 Fees.




          (a) Commitment Fee. Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee (a “Commitment Fee”) equal to the Applicable Fee per annum
on the average daily unused amount of each Revolving Commitment of such Lender during the period
from and including the date hereof to but excluding the date on which such Revolving Commitment
terminates. Accrued Commitment Fees shall be payable in arrears (A) on the last Business Day of
March, June, September and December of each year, commencing on the first such date to occur after
the date hereof, and (B) on the date on which such Revolving Commitment terminates. Commitment
Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). For purposes of
computing Commitment Fees with respect to Revolving Commitments, a Revolving Commitment of a Lender
shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of such
Lender.




          (b) Administrative Agent Fees. Borrower agrees to pay to the Administrative Agent,
for its own account, the administrative fees payable in the amounts and at the times separately
agreed upon between Borrower and the Administrative Agent (the “Administrative Agent Fees”).




          (c) LC and Fronting Fees. Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee (“LC Participation Fee”) with respect to
its participations in Letters of Credit, which shall accrue at a rate equal to the Applicable
Margin from time to time used to determine the interest rate on Eurodollar Revolving Loans pursuant
to Section 2.06 on the average daily amount of such Lender’s LC Exposure (excluding any
portion thereof attributable to
Reimbursement Obligations) during the period from and including the Closing Date to but
excluding the later of the date on which such Lender’s Revolving Commitment terminates and the date
on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee
(“Fronting Fee”), which shall accrue at the rate of 0.25% per annum on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to Reimbursement Obligations) during
the period from and including the Closing Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to be any LC Exposure,
as well as the Issuing Bank’s customary fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder. Accrued LC Participation
Fees and Fronting Fees shall be payable in arrears (i) on the last Business Day of March, June,
September and December of each year, commencing on the first such date to occur after the Closing
Date, and (ii) on the date on which the Revolving Commitments terminate. Any such fees accruing
after the date on which the Revolving Commitments terminate shall be payable on demand. Any other
fees payable to the Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand therefor. All LC Participation Fees and Fronting Fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).




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          (d) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders, except that
Borrower shall pay the Fronting Fees directly to the Issuing Bank. Once paid, none of the Fees
shall be refundable under any circumstances.




          SECTION 2.06 Interest on Loan.




          (a) ABR Loans. Subject to the provisions of Section 2.06(c), the Loans
comprising each ABR Borrowing shall bear interest at a rate per annum equal to the Alternate Base
Rate plus the Applicable Margin in effect from time to time.




          (b) Eurodollar Loans. Subject to the provisions of Section 2.06(c), the Loans
comprising each Eurodollar Borrowing shall bear interest at a rate per annum equal to the Adjusted
LIBOR Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin in
effect from time to time.




          (c) Default Rate. Notwithstanding the foregoing, during an Event of Default, all
Obligations which are then due and unpaid shall, to the extent permitted by applicable law, bear
interest, after as well as before judgment, at a per annum rate equal to (i) in the case of
principal and premium, if any, of or interest on any Loan, 2% plus the rate otherwise applicable to
such Loan as provided in the preceding paragraphs of this Section 2.06 or (ii) in the case
of any other amount, 2% plus the rate applicable to ABR Revolving Loans as provided in
Section 2.06(a) (in either case, the “Default Rate”).




          (d) Interest Payment Dates. Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to
Section 2.06(c) shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Revolving Loan without a permanent
reduction in Revolving Commitments), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment in accordance with Sections
2.09 and 2.10, as applicable, and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.




          (e) Interest Calculation. All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate Base Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).
The applicable Alternate Base Rate or Adjusted LIBOR Rate shall be determined by the
Administrative Agent in accordance with the provisions of this Agreement and such determination
shall constitute prima facie evidence of the accuracy of such rate.




          SECTION 2.07 Termination and Reduction of Commitments.




          (a) Termination of Commitments. The Tranche B Loan Commitments shall automatically
terminate at 5:00 p.m., New York City time, on the Closing Date. The Revolving Commitments and the
LC Commitment shall automatically terminate on the Revolving Maturity Date. Notwithstanding the
foregoing, all the Commitments shall automatically terminate at 5:00 p.m., New York City time, on
April 12, 2007, if the initial Credit Extension shall not have occurred by such time.




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          (b) Optional Terminations and Reductions. At its option, Borrower may at any time
terminate, or from time to time permanently reduce, the Commitments of any Class; provided that
(i) each reduction of the Commitments of any Class shall be in an amount that is an integral
multiple of $1.0 million and not less than $5.0 million and (ii) the Revolving Commitments shall
not be terminated or reduced if, after giving effect to any concurrent prepayment of the Revolving
Loans in accordance with Section 2.10, the aggregate amount of Revolving Exposures would
exceed the aggregate amount of Revolving Commitments.




          (c) Borrower Notice. Borrower shall notify the Administrative Agent in writing of any
election to terminate or reduce the Commitments under Section 2.07(b) at least three
Business Days prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by
Borrower pursuant to this Section shall be irrevocable, provided that a notice of termination of
the Commitments delivered by Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be revoked by Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such condition
is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent.
Each reduction of the Commitments of any Class shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.




          SECTION 2.08 Interest Elections.




          (a) Generally. Each Revolving Borrowing and Term Borrowing initially shall be of the
Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, Borrower
may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the
case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section.
Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. Notwithstanding anything to the contrary, Borrower shall not be entitled to
request any conversion or continuation that, if made, would result in more than five Eurodollar
Borrowings outstanding hereunder at any one time.




          (b) Interest Election Notice. To make an election pursuant to this Section, Borrower
shall deliver, by hand delivery, telecopier or electronic mail, a duly completed and executed
Interest Election Request to the Administrative Agent not later than the time that a Borrowing
Request would be required under Section 2.03 if Borrower were requesting a Revolving
Borrowing or Term Borrowing of the Type resulting from such election to be made on the effective
date of such election. Each Interest Election Request shall be irrevocable. Each Interest
Election Request shall specify the following information in compliance with Section 2.02:





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




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



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




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



          If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then Borrower shall be deemed to have selected an Interest Period of one month’s
duration.




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




          (c) Automatic Conversion to ABR Borrowing. If an Interest Election Request with
respect to a Eurodollar Borrowing is not timely delivered prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such
Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing, the
Administrative Agent or the Required Lenders may require, by notice to Borrower, that (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.




          SECTION 2.09 Amortization of Term Borrowings. Borrower shall pay to the Administrative Agent, for the account of the Lenders, on the
dates set forth on Annex II or if any such date is not a Business Day, on the immediately
preceding
Business Day (each such date, a “Tranche B Loan Repayment Date”), a principal amount of the
Tranche B Loans equal to the amount set forth on Annex II for such date (as adjusted
from time to time pursuant to Section 2.10(i)), together in each case with accrued and
unpaid interest on the principal amount to be paid to but excluding the date of such payment. To
the extent not previously paid, all Tranche B Loans shall be due and payable on the Tranche B
Maturity Date.




          SECTION 2.10 Optional and Mandatory Prepayments of Loans.




          (a) Optional Prepayments. Borrower shall have the right at any time and from time to
time to prepay any Borrowing, in whole or in part, subject to the requirements of this
Section 2.10; provided that each partial prepayment shall be in an amount that is an
integral multiple of $1.0 million and not less than $5.0 million or, if less, the outstanding
principal amount of such Borrowing.




          (b) Revolving Loan Prepayments.




          (i) In the event of the termination of all the Revolving Commitments, Borrower shall, on the
date of such termination, repay or prepay all its outstanding Revolving Borrowings and replace all
outstanding Letters of Credit or cash collateralize all outstanding Letters of Credit in accordance
with the procedures set forth in Section 2.18(i).




          (ii) In the event of any partial reduction of the Revolving Commitments, then (x) at or prior
to the effective date of such reduction, the Administrative Agent shall notify Borrower and the
Revolving Lenders of the sum of the Revolving Exposures after giving effect thereto and (y) if the
sum of the Revolving Exposures would exceed the aggregate amount of Revolving Commitments after
giving


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effect to such reduction, then Borrower shall, on the date of such reduction, first, repay
or prepay Revolving Borrowings and second, replace outstanding Letters of Credit or cash
collateralize outstanding Letters of Credit in accordance with the procedures set forth in
Section 2.18(i), in an aggregate amount sufficient to eliminate such excess.




          (iii) In the event that the sum of all Lenders’ Revolving Exposures exceeds the Revolving
Commitments then in effect, Borrower shall, without notice or demand, within one (1) Business Day
first, repay or prepay Revolving Borrowings, and second, replace outstanding Letters of Credit or
cash collateralize outstanding Letters of Credit in accordance with the procedures set forth in
Section 2.18(i), in an aggregate amount sufficient to eliminate such excess.




          (iv) In the event that the aggregate LC Exposure exceeds the LC Commitment then in effect,
Borrower shall, without notice or demand, within one (1) Business Day replace outstanding Letters
of Credit or cash collateralize outstanding Letters of Credit in accordance with the procedures set
forth in Section 2.18(i), in an aggregate amount sufficient to eliminate such excess.




          (c) Asset Sales. Not later than five Business Days following the receipt of any Net
Cash Proceeds of any Asset Sale by Holdings or any of its Subsidiaries, Borrower shall make
prepayments in accordance with Sections 2.10(i) and (j) in an aggregate amount
equal to 100% of such Net Cash Proceeds; provided that:





     (i) no such prepayment shall be required under this Section 2.10(c)(i) with
respect to (A) any Asset Sale permitted by Sections 6.06(a) and (f), (B) the
disposition of property which constitutes a Casualty Event, or (C) Asset Sales for fair
market value resulting in no more than $500,000 in Net Cash Proceeds per Asset Sale (or
series of related Asset Sales) and less than
$2.5 million in Net Cash Proceeds in any fiscal year; provided that clause (C) shall
not apply in the case of any Asset Sale described in clause (b) of the definition thereof;
and




     (ii) so long as no Default shall then exist or would arise therefrom, such proceeds
shall not be required to be so applied on such date to the extent that Borrower shall have
delivered an Officer’s Certificate to the Administrative Agent on or prior to such date
stating that such Net Cash Proceeds are expected to be used to make Permitted Acquisitions
or Capital Expenditures or reinvested in fixed or Capital Assets (or enter into a binding
commitment for any such reinvestment) within 360 days following the date of such Asset Sale
(which Officer’s Certificate shall set forth the estimates of the proceeds to be so
expended); provided that if all or any portion of such Net Cash Proceeds is not so
reinvested within a 180-day period following such 360 day period, such unused portion shall
be applied on the last day of such period as a mandatory prepayment as provided in this
Section 2.10(c); provided, further, that if the property subject to such Asset Sale
constituted Collateral, then all property purchased with the Net Cash Proceeds thereof
pursuant to this subsection shall be made subject to the Lien of the applicable Security
Documents in favor of the Collateral Agent, for its benefit and for the benefit of the other
Secured Parties in accordance with Sections 5.11 and 5.12.



          (d) Debt Issuance or Preferred Stock Issuance. Not later than one Business Day
following the receipt of any Net Cash Proceeds of any Debt Issuance (other than Indebtedness
permitted to be incurred in accordance with Section 6.01) or Preferred Stock Issuance by
Holdings or any of its Subsidiaries, Borrower shall make prepayments in accordance with
Sections 2.10(i) and (j) in an aggregate amount equal to 100% of such Net Cash
Proceeds.




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          (e) Equity Issuance. Not later than five Business Days following the receipt of any
Net Cash Proceeds of any Equity Issuance (other than the Net Cash Proceeds of any Equity Issuance
used to finance Capital Expenditures), Borrower shall make prepayments in accordance with
Sections 2.10(i) and (j) in an aggregate amount equal to 50% of such Net Cash
Proceeds; provided that such percentage shall be reduced to 25% if, and for so long as, the Total
Leverage Ratio as of the end of the most recent Test Period is less than 4.0 to 1.0.




          (f) Casualty Events. Not later than five Business Days following the receipt of any
Net Cash Proceeds (excluding any Net Cash Proceeds payable to the Sellers pursuant to the terms of
the Acquisition Agreement) from a Casualty Event by Holdings or any of its Subsidiaries, Borrower
shall make prepayments in accordance with Sections 2.10(i) and (j) in an aggregate
amount equal to 100% of such Net Cash Proceeds; provided that:





     (i) so long as no Default shall then exist or arise therefrom, such proceeds shall not
be required to be so applied on such date to the extent that Borrower shall have delivered
an Officer’s Certificate to the Administrative Agent on or prior to such date stating that
such Net Cash Proceeds are expected to be used to repair, replace or restore (or enter into
a binding commitment for such repair, replacement or restoration) any property in respect of
which such Net Cash Proceeds were paid no later than 360 days following the date of receipt
of such proceeds; provided that if the property subject to such Casualty Event constituted
Collateral under the Security Documents, then all property purchased with the Net Cash
Proceeds thereof pursuant to this subsection shall be made subject to the Lien of the
applicable Security Documents in favor of the Collateral Agent, for its benefit and for the
benefit of the other Secured Parties in accordance with Sections 5.11 and
5.12; and




     (ii) if any portion of such Net Cash Proceeds shall not be so applied within a 180-day
period following such 360 day period, such unused portion shall be applied on the last day
of such period as a mandatory prepayment as provided in this Section 2.10(f).



          (g) Extraordinary Event. Not later than five Business Days following the receipt by
any Net Cash Proceeds from any Extraordinary Receipts by Holdings or any of its Subsidiaries,
Borrower shall make prepayments in accordance with Section 2.10 (i) and (j) in an
aggregate amount equal to 100% of such Net Cash Proceeds; provided that:





     (i) so long as no Event of Default shall then exist or arise therefrom, such proceeds
shall not be required to be so applied on such date to the extent that the Borrower shall
have delivered an Officer’s Certificate to the Administrative Agent on or prior to such date
stating that an amount equal to such Net Cash Proceeds have been or are expected to be used
to repair, replace or restore (or enter into a binding commitment for such repair,
replacement or restoration) any property in respect of which such Net Cash Proceeds were
paid or to reinvest in other fixed or capital assets or used to make Permitted Acquisitions
or Capital Expenditures no later than 360 days following the date of receipt of such
proceeds; provided that if the property subject to such Extraordinary Event constituted
Collateral under the Security Documents, then all property purchased with the Net Cash
Proceeds thereof pursuant to this subsection shall be made subject to the Lien of the
applicable Security Documents in favor of the Collateral Agent, for its benefit and for the
benefit of the other Secured Parties in accordance with Sections 5.11 and
5.12; and



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     (ii) if any portion of such Net Cash Proceeds shall not be so applied within a 180-day
period following such 360-day period, an amount equal to such unused portion shall be
applied on the last day of such period as a mandatory prepayment as provided in this
Section 2.10(g).




          (h) Excess Cash Flow. Commencing with the fiscal year ended December 31, 2008, no
later than ten Business Days after the date on which the financial statements with respect to such
fiscal year in which such Excess Cash Flow Period occurs are or are required to be delivered
pursuant to Section 5.01(a), Borrower shall make prepayments in accordance with
Sections 2.10(i) and (j) in an aggregate amount equal to (A) 75% of Excess Cash
Flow for the Excess Cash Flow Period then ended minus (B) any voluntary prepayments of Tranche B
Loans, and any voluntary prepayments of Revolving Loans to the extent accompanied by corresponding
permanent reductions in the Revolving Commitments, during such Excess Cash Flow Period; provided
that such percentage shall be reduced to 50% if, and for so long as, the Total Leverage Ratio as of
the end of such Excess Cash Flow Period is less than 5.0 to 1.0.




          (i) Application of Prepayments. Prior to any optional or mandatory prepayment
hereunder, Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such
selection in the notice of such prepayment pursuant to Section 2.10(i), subject to the
provisions of this Section 2.10(i). Any prepayments of Tranche B Loans pursuant to
Section 2.10(a), (c), (d), (e), (f) (g) or
(h) shall be applied to reduce scheduled prepayments required under Section 2.09 on
a pro rata basis among the prepayments remaining to be made on each Tranche B Loan Repayment Date.
After application of mandatory prepayments of Tranche B Loans described above in this
Section 2.10(i) and to the extent there are mandatory prepayment amounts remaining after
such application, the Revolving Commitments shall be permanently reduced ratably among the
Revolving Lenders in accordance with their applicable Revolving Commitments in an aggregate amount
equal to such excess, and Borrower shall comply with Section 2.10(b).




          Amounts to be applied pursuant to this Section 2.10 to the prepayment of Tranche B
Loans and Revolving Loans shall be applied, as applicable, first to reduce outstanding ABR Term
Loans and ABR Revolving Loans, respectively. Any amounts remaining after each such application
shall be applied to prepay Eurodollar Term Loans or Eurodollar Revolving Loans, as applicable.
Notwithstanding the foregoing, if the amount of any prepayment of Loans required under this
Section 2.10 shall be in excess of the amount of the ABR Loans at the time outstanding (an
“Excess Amount”), only the portion of the amount of such prepayment as is equal to the amount of
such outstanding ABR Loans shall be immediately prepaid and, at the election of Borrower, the
Excess Amount shall be either (A) deposited in an escrow account on terms satisfactory to the
Collateral Agent and applied to the prepayment of Eurodollar Loans on the last day of the then
next-expiring Interest Period for Eurodollar Loans; provided that (i) interest in respect of such
Excess Amount shall continue to accrue thereon at the rate provided hereunder for the Loans which
such Excess Amount is intended to repay until such Excess Amount shall have been used in full to
repay such Loans and (ii) at any time while a Default has occurred and is continuing, the
Administrative Agent may, and upon written direction from the Required Lenders shall, apply any or
all proceeds then on deposit to the payment of such Loans in an amount equal to such Excess Amount
or (B) prepaid immediately, together with any amounts owing to the Lenders under
Section 2.13.




          (j) Notice of Prepayment. Borrower shall notify the Administrative Agent by written
notice of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, three Business Days before the date of prepayment and
(ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be irrevocable; provided
that, if a notice of prepayment is given in connection with a conditional notice of termination of
the Commitments


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as contemplated by Section 2.07, then such notice of prepayment may be
revoked if such termination is revoked in accordance with Section 2.07. Each such notice
shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be
prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount
of such prepayment. Promptly following receipt of any such notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in
an amount that would be permitted in the case of a Credit Extension of the same Type as provided in
Section 2.02, except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing and otherwise in accordance with this Section 2.10. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.06.




          SECTION 2.11 Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurodollar Borrowing:





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




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


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




          SECTION 2.12 Yield Protection.




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





     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in, by any Lender (except any reserve requirement
reflected in the Adjusted LIBOR Rate) or the Issuing Bank;




     (ii) subject any Lender or the Issuing Bank to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Loan made by it, or change the basis of taxation of payments to such Lender or the
Issuing Bank in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 2.15 and the imposition of, or any change in the rate of, any Excluded Tax
payable by such Lender or the Issuing Bank); or




     (iii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender
or any Letter of Credit or participation therein;



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and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the
cost to such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company, if
any, of participating in, issuing or maintaining any Letter of Credit (or of maintaining its
obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest
or any other amount), then, upon request of such Lender or the Issuing Bank, Borrower will pay to
such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred
or reduction suffered.




          (b) Capital Requirements. If any Lender or the Issuing Bank determines (in good
faith, but in its sole absolute discretion) that any Change in Law affecting such Lender or the
Issuing Bank or any lending office of such Lender or such Lender’s or the Issuing Bank’s holding
company, if any, regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the
Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the
Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the
Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the
policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy),
then from time to time Borrower will pay to such Lender or the Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender
or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such
reduction suffered.




          (c) Certificates for Reimbursement. A certificate of a Lender or the Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of this Section
2.12 and delivered to Borrower shall be conclusive absent manifest error. Borrower shall pay
such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.




          (d) Delay in Requests. Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section 2.12 shall not constitute a waiver of such
Lender’s or the Issuing Bank’s right to demand such compensation; provided that Borrower shall not
be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased
costs incurred or reductions suffered more than six months prior to the date that such Lender or
the Issuing Bank, as the case may be, notifies Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the six-month period referred to above shall be extended to include
the period of retroactive effect thereof) .



          SECTION 2.13 Breakage Payments. In the event of (a) the payment or prepayment, whether optional or mandatory, of any
principal of any Eurodollar Loan earlier than the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan earlier
than the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Tranche B Loan on the date specified in any notice
delivered pursuant hereto or (d) the assignment of any Eurodollar Loan earlier than the last day of
the Interest Period applicable thereto as a result of a request by Borrower pursuant to



-50-









 






Section 2.16(b), then, in any such event, Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be
the excess, if any, of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBOR Rate that would have been
applicable to such Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which
such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the Eurodollar market. A certificate of any
Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to
receive pursuant to this Section 2.13 shall be delivered to Borrower (with a copy to the
Administrative Agent) and shall be conclusive and binding absent manifest error. Borrower shall
pay such Lender the amount shown as due on any such certificate within 5 days after receipt
thereof.




          SECTION 2.14 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.




          (a) Payments Generally. Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees or Reimbursement
Obligations, or of amounts payable under Section 2.12, 2.13, 2.15 or
10.03, or otherwise) on or before the time expressly required hereunder or under such other
Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New
York City time), on the date when due, in immediately available funds, without setoff, deduction or
counterclaim. Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 200 Park Avenue, New York, NY 10166 (or such other offices as designated by
the Administrative Agent), except payments to be made directly to the Issuing Bank as expressly
provided herein and except that payments pursuant to Sections 2.12, 2.13,
2.15 and 10.03 shall be made directly to the persons entitled thereto and payments
pursuant to other Loan Documents shall be made to the persons specified therein. The
Administrative Agent shall distribute any such payments received by it for the account of any other
person to the appropriate recipient promptly following receipt thereof. If any payment under any
Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the
date for payment shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of such extension. All
payments under each Loan Document shall be made in dollars, except as expressly specified
otherwise.




          (b) Pro Rata Treatment.




          (i) Each payment by Borrower of interest in respect of the Loans shall be applied to the
amounts of such obligations owing to the Lenders pro rata according to the respective amounts then
due and owing to the Lenders.




          (ii) Each payment on account of principal of the Tranche B Loans shall be allocated among the
Tranche B Lenders pro rata based on the principal amount of the Tranche B Loans held by the Tranche
B Lenders. Each payment by Borrower on account of principal of the Revolving Borrowings shall be
made pro rata according to the respective outstanding principal amounts of the Revolving Loans then
held by the Revolving Lenders.




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          (c) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, Reimbursement
Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, toward
payment of interest and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward
payment of principal and Reimbursement Obligations then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and Reimbursement Obligations then due
to such parties.




          (d) Sharing of Setoff. If any Lender (and/or the Issuing Bank, which shall be deemed
a “Lender” for purposes of this Section 2.14(d)) shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
its Loans or other Obligations resulting in such Lender’s receiving payment of a proportion of the
aggregate amount of its Loans and accrued interest thereon or other Obligations greater than its
pro rata share thereof as
provided herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the
Loans and such other obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:





     (i) if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and




     (ii) the provisions of this paragraph shall not be construed to apply to (x) any
payment made by Borrower pursuant to and in accordance with the express terms of this
Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in LC Disbursements to any
assignee or participant, other than to Borrower or any Subsidiary thereof (as to which the
provisions of this paragraph shall apply).


Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under
applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation. If under applicable bankruptcy, insolvency or any similar law any
Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this
Section 2.14(d) applies, such Secured Party shall to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights to which the Secured
Party is entitled under this Section 2.14(d) to share in the benefits of the recovery of
such secured claim.




          (e) Borrower Default. Unless the Administrative Agent shall have received notice from
Borrower prior to the date on which any payment is due to the Administrative Agent for the account
of the Lenders or the Issuing Bank hereunder that Borrower will not make such payment, the
Administrative Agent may assume that Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if Borrower has not in fact made such payment,
then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing
Bank with interest thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of


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payment to the Administrative Agent, at the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.




          (f) Lender Default. If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.02(c), 2.14(e), 2.17(d), 2.18(d),
2.18(e) or 10.03(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.




          SECTION 2.15 Taxes.




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




          (b) Payment of Other Taxes by Borrower. Without limiting the provisions of paragraph
(a) above, Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable Requirements of Law.




          (c) Indemnification by Borrower. Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) payable by the Administrative Agent, such
Lender or the Issuing Bank, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to Borrower by a Lender or the
Issuing Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error.




          (d) Evidence of Payments. Promptly following the Administrative Agent’s reasonable
request a Loan Party shall deliver to the Administrative Agent the original or a certified copy of
a receipt issued by a Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.




          (e) Status of Lenders. Any Foreign Lender shall, to the extent it may lawfully do so,
deliver to Borrower and the Administrative Agent (in such number of copies as shall be requested
by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of
the following is applicable:




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     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for exemption from or reduction of United States withholding tax of an income tax treaty to
which the United States of America is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (x) a certificate, in substantially the
form of Exhibit Q, or any other form approved by the Administrative Agent, to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of Section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of Borrower within the meaning of
Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service
Form W-8BEN, or




     (iv) any other form prescribed by applicable Requirements of Law as a basis for
claiming exemption from or a reduction in United States federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by applicable
Requirements of Law to permit Borrower to determine the withholding or deduction required to
be made.



          In addition, each Foreign Lender agrees that it will deliver to the extent it may lawfully do
so upon Borrower’s or the Administrative Agent’s reasonable request updated versions of the
foregoing, as applicable, whenever the previous certification has become obsolete or inaccurate in
any material respect, together with such other forms as may be required in order to confirm or
establish the entitlement of such Foreign Lender to a continued exemption from or reduction in
United States federal withholding tax.




          (f) Treatment of Certain Refunds. If the Administrative Agent, a Lender or the
Issuing Bank determines, in its sole discretion, that it has received a refund of any Indemnified
Taxes or Other Taxes as to which it has been indemnified by Borrower or with respect to which
Borrower has paid additional amounts pursuant to this Section, it shall pay to Borrower an amount
equal to such refund (but only to the extent of indemnity payments made, or additional amounts
paid, by Borrower under this Section with respect to the Indemnified Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or
the Issuing Bank, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that Borrower, upon the
request of the Administrative Agent, such Lender or the Issuing Bank, agrees to repay the amount
paid over to Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Lender or the Issuing Bank in the event
the Administrative Agent, such Lender or the Issuing Bank is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the Administrative Agent,
any Lender or the Issuing Bank to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to Borrower or any other person. Notwithstanding anything
to the contrary, in no event will any Lender be required to pay any amount to Borrower the payment
of which would place such Lender in a less favorable net after-tax position than such Lender would
have been in if the additional amounts giving rise to such refund of any Indemnified Taxes or Other
Taxes had never been paid.




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          SECTION 2.16 Mitigation Obligations; Replacement of Lenders.




          (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 2.12, or requires Borrower to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for funding or booking
its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.12 or 2.15, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable costs
and expenses incurred by any Lender in connection with any such designation or assignment. A
certificate setting forth such costs and expenses submitted by such Lender to Borrower shall be
conclusive absent manifest error.




          (b) Replacement of Lenders. If any Lender or Participant requests compensation under
Section 2.12, or if Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15, or if any
Lender defaults in its obligation to fund Loans hereunder, or if Borrower exercises its replacement
rights under Section 10.02(d), then Borrower may, at its sole expense and effort, upon
notice to such Lender or Participant and the Administrative Agent, require such Lender or
Participant to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 10.04), all of its interests,
rights and obligations under this Agreement and the other Loan Documents to an Eligible Assignee
that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that:





     (i) Borrower shall have paid to the Administrative Agent the processing and recordation
fee specified in Section 10.04(b);




     (ii) such Lender or Participant shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 2.13), assuming for this purpose (in
the case of a Lender being replaced pursuant to Section 10.02(d)) that the Loans of
such Lender or Participant were being prepaid) from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or Borrower (in the case of all other
amounts;




     (iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.12 or payments required to be made pursuant to Section 2.15, 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 Lender or Participant shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or Participant or otherwise, the circumstances
entitling Borrower to require such assignment and delegation cease to apply.




          SECTION 2.17 [Reserved].





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          SECTION 2.18  Letters of Credit.





          (a) General. Subject to the terms and conditions set forth herein, Borrower may
request the Issuing Bank to issue Letters of Credit for its own account or the account of a
Subsidiary in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time during the Revolving Availability Period (provided that Borrower shall be a
co-applicant, and be jointly and severally liable, with respect to each Letter of Credit issued for
the account of a Subsidiary). The Issuing Bank shall have no obligation to issue, and Borrower
shall not request the issuance of, any Letter of Credit at any time if after giving effect to such
issuance, the LC Exposure would exceed the LC Commitment or the total Revolving Exposure would
exceed the total Revolving Commitments. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by Borrower to, or entered into by Borrower with, the
Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall
control.




          (b) Request for Issuance, Amendment, Renewal, Extension; Certain Conditions and
Notices. To request the issuance of a Letter of Credit or the amendment, renewal or extension
of an outstanding Letter of Credit, Borrower shall deliver, by hand or telecopier (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing Bank), an
LC Request to the Issuing Bank and the Administrative Agent not later than 11:00 a.m. on the third
Business Day preceding the requested date of issuance, amendment, renewal or extension (or such
later date and time as is acceptable to the Issuing Bank).




          A request for an initial issuance of a Letter of Credit shall specify in form and detail
satisfactory to the Issuing Bank:




          (i) the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day);




          (ii) the amount thereof;




          (iii) the expiry date thereof (which shall not be later than the close of business on
the Letter of Credit Expiration Date);




          (iv) the name and address of the beneficiary thereof;




          (v) whether the Letter of Credit is to be issued for its own account or for the account
of one of its Subsidiaries (provided that Borrower shall be a co-applicant, and therefore
jointly and severally liable, with respect to each Letter of Credit issued for the account
of a Subsidiary);




          (vi) if available, the documents to be presented by such beneficiary in connection with
any drawing thereunder;




          (vii) the full text of any certificate to be presented by such beneficiary in
connection with any drawing thereunder; and




          (viii) such other matters as the Issuing Bank may reasonably require.




          A request for an amendment, renewal or extension of any outstanding Letter of Credit shall
specify in form and detail satisfactory to the Issuing Bank:




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     (i) the Letter of Credit to be amended, renewed or extended;




     (ii) the proposed date of amendment, renewal or extension thereof (which shall be a
Business Day);




     (iii) the nature of the proposed amendment, renewal or extension; and




     (iv) such other matters as the Issuing Bank may reasonably require.


If requested by the Issuing Bank, Borrower also shall submit a letter of credit application on the
Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and, upon issuance, amendment,
renewal or extension of each Letter of Credit, Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension, (i) the LC Exposure
shall not exceed the LC Commitment, (ii) the total Revolving Exposures shall not exceed the total
Revolving Commitments and (iii) the conditions set forth in Article IV in respect of such
issuance, amendment, renewal or extension shall have been satisfied. Unless the Issuing Bank shall
agree otherwise, no Letter of Credit shall be in an initial amount less than $5,000.




          Upon the issuance of any Letter of Credit or amendment, renewal, extension or modification to
a Letter of Credit, the Issuing Bank shall promptly notify the Administrative Agent, who shall
promptly notify each Revolving Lender, thereof, which notice shall be accompanied by a copy of such
Letter of Credit or amendment, renewal, extension or modification to a Letter of Credit and the
amount of such Lender’s respective participation in such Letter of Credit pursuant to
Section 2.18(d). On the first Business Day of each fiscal quarter, the Issuing Bank shall
provide to the Administrative Agent a report listing all outstanding Letters of Credit and the
amounts and beneficiaries thereof and the Administrative Agent shall promptly provide such report
to each Revolving Lender.




          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date which is one year after the date of the issuance of such
Standby Letter of Credit (or, in the case of any renewal or extension thereof, one year after such
renewal or extension) and (ii) the Letter of Credit Expiration Date.




          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby irrevocably grants to each Revolving Lender,
and each Revolving Lender hereby acquires from the Issuing Bank, a participation in such Letter of
Credit equal to such Revolving Lender’s Pro Rata Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each
Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for the account of the Issuing Bank, such Revolving Lender’s Pro Rata Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by Borrower on the date due as provided in
Section 2.18(e), or of any reimbursement payment required to be refunded to Borrower for
any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, or expiration, termination or cash collateralization
of any Letter of Credit and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.




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          (e) Reimbursement.




          (i) If the Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit,
Borrower shall reimburse such LC Disbursement by paying to the Issuing Bank an amount equal to such
LC Disbursement not later than 3:00 p.m., New York City time, on the date that such LC Disbursement
is made if Borrower shall have received notice of such LC Disbursement prior to 11:00 a.m., New
York City time, on such date, or, if such notice has not been received by Borrower prior to such
time on such date, then not later than 3:00 p.m., New York City time, on the Business Day
immediately following the day that Borrower receives such notice.




          (ii) If Borrower fails to make such payment when due, the Issuing Bank shall notify the
Administrative Agent and the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from Borrower in respect thereof and such
Revolving Lender’s Pro Rata Percentage thereof. Each Revolving Lender shall pay by wire transfer
of immediately available funds to the Administrative Agent not later than 2:00 p.m., New York City
time, on such date (or, if such Revolving Lender shall have received such notice later than 12:00
noon, New York City time, on any day, not later than 11:00 a.m., New York City time, on the
immediately following Business Day), an amount equal to such Revolving Lender’s Pro Rata Percentage
of the unreimbursed LC Disbursement in the same manner as provided in Section 2.02(c) with
respect to Revolving Loans made by such Revolving Lender, and the Administrative Agent will
promptly pay to the Issuing Bank the amounts so received by it from the Revolving Lenders. The
Administrative Agent will promptly pay to the Issuing Bank any amounts received by it from Borrower
pursuant to the above paragraph prior to the time that any Revolving Lender makes any payment
pursuant to the preceding sentence and any such amounts received by the Administrative Agent from
Borrower thereafter will be promptly remitted by the Administrative Agent to the Revolving Lenders
that shall have made such payments and to the Issuing Bank, as appropriate.




          (iii) If any Revolving Lender shall not have made its Pro Rata Percentage of such LC
Disbursement available to the Administrative Agent as provided above, each of such Revolving Lender
and Borrower severally agrees to pay interest on such amount, for each day from and including the
date such amount is required to be paid in accordance with the foregoing to but excluding the date
such amount is paid, to the Administrative Agent for the account of the Issuing Bank at (i) in the
case of Borrower, the rate per annum set forth in Section 2.18(h) and (ii) in the case of
such Lender, at a rate determined by the Administrative Agent in accordance with banking industry
rules or practices on interbank compensation.




          (f) Obligations Absolute. The Reimbursement Obligation of Borrower as provided in
Section 2.18(e) shall be absolute, unconditional and irrevocable, and shall be paid and
performed strictly in accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit
or this Agreement, or any term or provision therein; (ii) any draft or other document presented
under a Letter of Credit being proved to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect; (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that fails
to comply with the terms of such Letter of Credit; (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the provisions of this
Section 2.18, constitute a legal or equitable discharge of, or provide a right of setoff
against, the obligations of Borrower hereunder; (v) the fact that a Default shall have occurred and
be continuing; or (vi) any material adverse change in the business, property, results of
operations, prospects or condition, financial or otherwise, of Borrower and its Subsidiaries. None
of the Agents, the Lenders,



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the Issuing Bank or any of their Affiliates shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to
Borrower to the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by Borrower to the extent permitted by applicable Requirements
of Law) suffered by Borrower that are caused by the Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.




          (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly give written notice to the Administrative Agent and
Borrower of such demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not
relieve Borrower of its Reimbursement Obligation to the Issuing Bank and the Revolving Lenders with
respect to any such LC Disbursement (other than with respect to the timing of such Reimbursement
Obligation set forth in Section 2.18(e)).




          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest payable on demand, for each day from and
including the date such LC Disbursement is made to but excluding the date that Borrower reimburses
such LC Disbursement, at the rate per annum determined pursuant to Section 2.06(c).
Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except
that interest accrued on and after the date of payment by any Revolving Lender pursuant to
Section 2.18(e) to reimburse the Issuing Bank shall be for the account of such Lender to
the extent of such payment.




          (i) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that Borrower receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, Borrower shall deposit on terms and in accounts satisfactory to the
Collateral Agent, in the name of the Collateral Agent and for the benefit of the Revolving Lenders,
an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid interest
thereon; provided that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to Borrower described
in Section 8.01(g) or (h). Funds so deposited shall



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be applied by the Collateral Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of outstanding Reimbursement Obligations or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure), be applied to satisfy other Obligations of Borrower under this
Agreement. If Borrower is required to provide an amount of cash collateral hereunder as a result
of the occurrence of an Event of Default, such amount plus any accrued interest or realized profits
with respect to such amounts (to the extent not applied as aforesaid) shall be returned to Borrower
within three Business Days after all Events of Default have been cured or waived.




          (j) Additional Issuing Banks. Borrower may, at any time and from time to time,
designate one or more additional Revolving Lenders to act as an issuing bank under the terms of
this Agreement, with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), the Issuing Bank and such Revolving Lender(s). Any Lender
designated as an issuing bank pursuant to this paragraph (j) shall be deemed (in addition to being
a Revolving Lender) to be the Issuing Bank with respect to Letters of Credit issued or to be issued
by such Revolving Lender, and all references herein and in the other Loan Documents to the term
“Issuing Bank” shall, with respect to such Letters of Credit, be deemed to refer to such Revolving
Lender in its capacity as Issuing Bank, as the context shall require.




          (k) Resignation or Removal of the Issuing Bank. The Issuing Bank may resign as
Issuing Bank hereunder at any time upon at least 30 days’ prior notice to the Lenders, the
Administrative Agent and Borrower. The Issuing Bank may be replaced at any time by written
agreement among Borrower, each Agent, the replaced Issuing Bank and the successor Issuing Bank.
The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank or
any such additional Issuing Bank. At the time any such resignation or replacement shall become
effective, Borrower shall pay all unpaid fees accrued and then due for the account of the replaced
Issuing Bank pursuant to Section 2.05(c). From and after the effective date of any such
resignation or replacement or addition, as applicable, (i) the successor or additional Issuing Bank
shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued by it thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or such addition or to any previous Issuing Bank,
or to such successor or such addition and all previous Issuing Banks, as the context shall require.
After the resignation or replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior to such resignation or
replacement, but shall not be required to issue additional Letters of Credit. If at any time there
is more than one Issuing Bank hereunder, Borrower may, in its discretion, select which Issuing Bank
is to issue any particular Letter of Credit.




          (l) Other. The Issuing Bank shall be under no obligation to issue any Letter of
Credit if





     (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the Issuing Bank from issuing such Letter of Credit,
or any Requirement of Law applicable to the Issuing Bank or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction
over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Bank with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the Issuing Bank



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is not otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the Issuing Bank in good faith deems material to it; or




     (ii) the issuance of such Letter of Credit would violate one or more policies of the
Issuing Bank.



     The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank
would have no obligation at such time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.




          SECTION 2.19 Increase in Commitments.




          (a) Borrower Request. Borrower may by written notice to the Administrative Agent
elect to request the establishment of one or more new Tranche B Loan Commitments (each, an
“Incremental Tranche B Loan Commitment”) by an amount not in excess of $50,000,000 in the
aggregate. Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on
which Borrower proposes that the new Commitments shall be effective, which shall be a date not less
than 10 Business Days after the date on which such notice is delivered to the Administrative Agent
and (ii) the identity of each Eligible Assignee to whom Borrower proposes any portion of such new
Commitments be allocated and the amounts of such allocations; provided that any existing Lender
approached to provide all or a portion of the new Commitments may elect or decline, in its sole
discretion, to provide such increased or new Commitment.




          (b) Conditions. The increased or new Commitments shall become effective, as of such
Increase Effective Date; provided that:





     (i) each of the conditions set forth in Section 4.02 shall be satisfied;




     (ii) no Default shall have occurred and be continuing or would result from the
borrowings to be made on the Increase Effective Date;




     (iii) after giving pro forma effect to (A) the borrowings to be made on the Increase
Effective Date and (B) any change in Consolidated EBITDA and any increase in Indebtedness
resulting from the consummation of any Permitted Acquisition concurrently with such
borrowings, in each case, as of the date of the most recent financial statements delivered
pursuant to Section 5.01(a) or (b), Borrower shall be in compliance with the
covenant set forth in Section 6.10 and the First Lien Leverage Ratio shall not be
greater than the amount set forth on Annex III; and




     (iv) Borrower shall deliver or cause to be delivered any legal opinions or other
documents reasonably requested by the Administrative Agent in connection with any such
transaction.



          (c) Terms of New Loans and Commitments. The terms and provisions of Loans made
pursuant to the new Commitments shall be as follows:


     
(i) terms and provisions of Loans made pursuant to Incremental Tranche B Loan
Commitments (“Incremental Term Loans”) shall be, except as otherwise set forth herein or in


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the Increase Joinder, identical to the Tranche B Loans (it being understood that Incremental
Term Loans may be a part of the Tranche B Loans);




     (ii) the weighted average life to maturity of any Incremental Term Loans shall be no
shorter than the weighted average life to maturity of the existing Tranche B Loans;




     (iii) the maturity date of Incremental Term Loans (the “Incremental Term Loan Maturity
Date”) shall not be earlier than the Final Maturity Date; and




     (iv) the Applicable Margins for the Incremental Term Loans shall be determined by
Borrower and the Lenders of the Incremental Term Loans; provided that in the event that the
Applicable Margins for any Incremental Term Loans are greater than the Applicable Margins
for the Tranche B Loans by more than 25 basis points, then the Applicable Margins for the
Tranche B Loans shall be increased to the extent necessary so that the Applicable Margins
for the Incremental Term Loans are equal to the Applicable Margins for the Tranche B Loans
plus 25 basis points; provided, further, that in determining the Applicable Margins
applicable to the Tranche B Loans and the Incremental Term Loans, (x) original issue
discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID)
payable by Borrower to the Lenders of the Tranche B Loans or the Incremental Term Loans in
the primary syndication thereof shall be included (with OID being equated to interest based
on an assumed four-year life to maturity) and (y) customary arrangement or commitment fees
payable to the Arrangers (or their respective affiliates) in connection with the Tranche B
Loans or to one or more arrangers (or their affiliates) of the Incremental Term Loans shall
be excluded.



The new Commitments shall be effected by a joinder agreement (the “Increase Joinder”) executed by
Borrower, the Administrative Agent and each Lender making such increased or new Commitment, in form
and substance reasonably satisfactory to each of them. The Increase Joinder may, without the
consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents
as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the
provisions of this Section 2.19. In addition, unless otherwise specifically provided
herein, all references in Loan Documents to Tranche B Loans shall be deemed, unless the context
otherwise requires, to include references to Incremental Term Loans that are Tranche B Loans made
pursuant to this Agreement.




          (d) Making of New Tranche B Loans. On any Increase Effective Date on which new
Commitments for Tranche B Loans are effective, subject to the satisfaction of the foregoing terms
and conditions, each Lender of such new Commitment shall make a Tranche B Loan to Borrower in an
amount equal to its new Commitment.




          (e) Equal and Ratable Benefit. The Loans and Commitments established pursuant to this
paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits
afforded by, this Agreement and the other Loan Documents, and shall, without limiting the
foregoing, benefit equally and ratably from the Guarantees and security interests created by the
Security Documents. The Loan Parties shall take any actions reasonably required by the
Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by
the Security Documents continue to be perfected under the UCC or otherwise after giving effect to
the establishment of any such Incremental Term Loans or any such new Commitments.




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ARTICLE III




REPRESENTATIONS AND WARRANTIES




          Each Loan Party represents and warrants to the Administrative Agent, the Collateral Agent, the
Issuing Bank and each of the Lenders (with references to the Companies being references thereto
after giving effect to the Transactions unless otherwise expressly stated) that:




          SECTION 3.01 Organization; Powers. Each Company (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 Company or any event which, with the giving of notice or passage of
time or both, would constitute a default by any party thereunder.




          SECTION 3.02 Authorization; Enforceability. The Transactions to be entered into by each Loan Party are within such Loan Party’s powers
and have been duly authorized by all necessary action on the part of such Loan Party. This
Agreement has been duly executed and delivered by each Loan Party and constitutes, and each other
Loan Document to which any Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of such Loan 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.




          SECTION 3.03 No Conflicts. Except as set forth on Schedule 3.03, 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,
(ii) filings necessary to perfect Liens created by the Loan Documents and (iii) 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 Company, (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 Company or its property, or give rise to a right thereunder to
require any payment to be made by any Company, 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 Company,
except Liens created by the Loan Documents and Permitted Liens.




          SECTION 3.04 Financial Statements; Projections.




                (a) Historical Financial Statements. Borrower has heretofore delivered to the Lenders
the consolidated balance sheets and related statements of income, stockholders’ equity and cash
flows of Borrower (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



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for the comparable period of the preceding fiscal year, in
each case, certified by the chief financial officer of Borrower. Such financial statements and all
financial statements delivered pursuant to Sections 5.01(a), (b) and (c)
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 3.04(a), there are no liabilities of any Company 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 Loan 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 Lenders have been prepared in good faith by Borrower and based on
assumptions believed by Borrower to reasonable.




          SECTION 3.05 Properties.




          (a) Generally. Each Company has good title to, or valid leasehold interests in, all
its property material to its business, free and clear of all Liens except for, in the case of
Collateral, Permitted Collateral Liens and, in the case of all other material property, 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 Companies, taken as a whole, (i) is in good
operating order, condition and repair (ordinary wear and tear excepted) and (ii) constitutes all
the property which is required for the business and operations of the Companies as presently
conducted.




          (b) Real Property. Schedules 8(a) and 8(b) to the Perfection
Certificate dated the Closing Date contain a true and complete list of each interest in Real
Property (i) owned by any Company as of the date hereof and describes the type of interest therein
held by such Company 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 Company, as lessee, sublessee, franchisee or licensee,
as of the date hereof and describes the type of interest therein held by such Company and, in
each of the cases described in clauses (i) and (ii) of this Section 3.05(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 Company 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 5.04.




          (d) Collateral. Each Company owns or has rights to use all of the Collateral and all
rights with respect to any of the foregoing used in, necessary for or material to each Company’s
business



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as currently conducted. The use by each Company of such Collateral 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 Company’s use
of any Collateral 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.




          SECTION 3.06 Intellectual Property.




          (a) Ownership/No Claims. Each Loan 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”), 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 3.06(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 Loan Party know of any valid basis for any such claim. The use of such Intellectual Property
by each Loan 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 Loan Party in the ordinary course of business that are listed in Schedule 12(a) or
12(b) to the Perfection Certificate, on and as of the date hereof (i) each Loan 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 (as such terms are defined in the Security Agreement)
listed in Schedule 12(a) or 12(b) to the Perfection Certificate and (ii) all
registrations listed in Schedule 12(a) or 12(b) to the Perfection Certificate are
valid and in full force and effect.




          (c) No Violations or Proceedings. To each Loan Party’s knowledge, on and as of the
date hereof, there is no material violation by others of any right of such Loan Party with respect
to any copyright, patent or trademark listed in Schedule 12(a) or 12(b) to the
Perfection Certificate, pledged by it under the name of such Loan Party except as may be set forth
on Schedule 3.06(c).




          SECTION 3.07 Equity Interests and Subsidiaries.




          (a) Equity Interests. Schedules 1(a) and 10(a) to the Perfection
Certificate dated the Closing Date set 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 Company are duly and validly issued and
are fully paid and non-assessable, and, other than the Equity Interests of Borrower, are owned by
Borrower, directly or indirectly through Wholly Owned Subsidiaries. All Equity Interests of
Borrower are owned directly by Holdings. Each Loan Party is the record and beneficial owner of,
and has good and marketable title to, the Equity Interests pledged by it under the Security
Agreement, free of any and all Liens, rights or claims of other persons, except the security
interest created by the Security Agreement, and 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 such Equity
Interests.




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          (b) No Consent of Third Parties Required. No consent of any person including any
other general or limited partner, any other member of a limited liability company, any other
shareholder or any other trust beneficiary is necessary or reasonably desirable (from the
perspective of a secured party) in connection with the creation, perfection or first priority
status of the security interest of the Collateral Agent in any Equity Interests pledged to the
Collateral Agent for the benefit of the Secured Parties under the Security Agreement or the
exercise by the Collateral Agent of the voting or other rights provided for in the Security
Agreement or the exercise of remedies in respect thereof.




          (c) Organizational Chart. An accurate organizational chart, showing the ownership
structure of Holdings, Borrower and each Subsidiary on the Closing Date, and after giving effect to
the Transactions, is set forth on Schedule 10(a) to the Perfection Certificate dated the
Closing Date.




          SECTION 3.08 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 Company, threatened against or
affecting any Company or any business, property or rights of any Company (i) that involve any Loan
Document or any of the 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 3.18, no Company 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 Company’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.




          SECTION 3.09 Agreements. No Company 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 Company 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 3.09 accurately and completely lists all Material Contracts to which any Borrower
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 Borrower has delivered 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.




          SECTION 3.10 Federal Reserve Regulations. No Company 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
any Loan or any Letter of Credit 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.
The pledge of the Securities Collateral pursuant to the Security Agreement does not violate such
regulations.




          SECTION 3.11 Investment Company Act. No Company 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.




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          SECTION 3.12 Use of Proceeds. Borrower will use the proceeds of (a) the Tranche B Loans to effect the Acquisition and the
Refinancing finance the Transactions and pay related fees and expenses and (b) the Revolving Loans
after the Closing Date for general corporate purposes (including to effect Permitted Acquisitions)
it being understood that no Revolving Loans shall be made on the Closing Date.




          SECTION 3.13 Taxes. Each Company 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 Company
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 Company has made adequate
provision in accordance with GAAP for all Taxes not yet due and payable. Each Company 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 Company 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.




          SECTION 3.14 No Material Misstatements. No information, report, financial statement, certificate, Borrowing Request, LC Request,
exhibit or schedule furnished by or on behalf of any Company to the Administrative Agent or any
Lender in connection with the negotiation of any Loan Document or included therein or delivered
pursuant thereto, taken as a whole, or the Confidential Information Memorandum 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 Company represents only that it acted in good faith and
utilized reasonable assumptions and due care in the preparation of such information, report,
financial statement, exhibit or schedule.




          SECTION 3.15 Labor Matters. As of the Closing Date, there are no strikes, lockouts or slowdowns against any Company
pending or, to the knowledge of any Company, threatened. The hours worked by and payments made to
employees of any Company 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 Company, or for which any claim may be made against any Company, 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 Company 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 Company is bound.




          SECTION 3.16 Solvency. Immediately after the consummation of the Transactions to occur on the Closing Date and
immediately following the making of each Loan and after giving effect


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to the application of the
proceeds of each Loan, (a) the fair value of the properties of each Loan 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 Loan 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 Loan 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 Loan 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.




          SECTION 3.17 Employee Benefit Plans. Each Company 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 Company or any of its ERISA Affiliates or the imposition of a Lien on any of the
property of any Company. Using actuarial assumptions and computation methods consistent with
subpart I of subtitle E of Title IV of ERISA, the aggregate liabilities of each Company or its
ERISA Affiliates to all Multiemployer Plans in the event of a complete withdrawal therefrom, as of
the close of the most recent fiscal year of each such Multiemployer Plan, could not reasonably be
expected to result in a Material Adverse Effect.




          SECTION 3.18 Environmental Matters.




          (a) Except as set forth in Schedule 3.18 and except as, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect:





     (i) The Companies and their businesses, operations and Real Property are in compliance
with, and the Companies have no liability under, any applicable Environmental Law; and under
the currently effective business plan of the Companies, no expenditures or operational
adjustments will be required in order to comply with applicable Environmental Laws during
the next five years;




     (ii) The Companies 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 Companies, 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 Companies or their predecessors in interest that could result in liability by the
Companies under any applicable Environmental Law;




     (iv) There is no Environmental Claim pending or, to the knowledge of the Companies,
threatened against the Companies, or relating to the Real Property currently or formerly
owned, leased or operated by the Companies or their predecessors in interest or relating



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to
the operations of the Companies, 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 Companies relating to
compliance with or liability under Environmental Law is in default with respect to such
obligation.



          (b) Except as set forth in Schedule 3.18:





     (i) No Company 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 Company is
conducting or 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 Companies and, to
the knowledge of the Companies, no Real Property or facility formerly owned, operated or
leased by the Companies 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 Company, threatened under
any Environmental Law with respect to any Real Property or other assets of the Companies;




     (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 Companies have made available to the Lenders all material records and files in
the possession, custody or control of, or otherwise reasonably available to, the Companies
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 Companies.



          SECTION 3.19 Insurance. Schedule 3.19 sets forth a true, complete and correct description of all insurance
maintained by each Company as of the Closing Date. All insurance maintained by the Companies is in
full force and effect, all premiums have been duly paid, no Company 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 Company 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.




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          SECTION 3.20 Security Documents.




          (a) Security Agreement. The Security Agreement is effective to create in favor of the
Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and
security interests in, the Security Agreement Collateral and, when (i) financing statements and
other filings in appropriate form are filed in the offices specified on Schedule 7 to the
Perfection Certificate and (ii) upon the taking of possession or control by the Collateral Agent of
the Security Agreement Collateral with respect to which a security interest may be perfected only
by possession or control (which possession or control shall be given to the Collateral Agent to the
extent possession or control by the Collateral
Agent is required by each Security Agreement), the Liens created by the Security Agreement
shall constitute fully perfected Liens on, and security interests in, all right, title and interest
of the grantors in the Security Agreement Collateral (other than such Security Agreement Collateral
in which a security interest cannot be perfected under the UCC as in effect at the relevant time in
the relevant jurisdiction), in each case subject to no Liens other than Permitted Collateral Liens.




          (b) PTO Filing; Copyright Office Filing. When the Security Agreement or a short form
thereof is filed in the United States Patent and Trademark Office and the United States Copyright
Office, the Liens created by such Security Agreement shall constitute fully perfected Liens on, and
security interests in, all right, title and interest of the grantors thereunder in Patents (as
defined in the Security Agreement) registered or applied for with the United States Patent and
Trademark Office or Copyrights (as defined in such Security Agreement) registered or applied for
with the United States Copyright Office, as the case may be, in each case subject to no Liens other
than Permitted Collateral Liens.




          (c) Mortgages. Each Mortgage is effective to create, in favor of the Collateral
Agent, for its benefit and the benefit of the Secured Parties, legal, valid and enforceable first
priority Liens on, and security interests in, all of the Loan Parties’ right, title and interest in
and to the Mortgaged Properties thereunder and the proceeds thereof, subject only to Permitted
Collateral Liens or other Liens acceptable to the Collateral Agent, and when the Mortgages are
filed in the offices specified on Schedule 8(a) to the Perfection Certificate dated the
Closing Date (or, in the case of any Mortgage executed and delivered after the date thereof in
accordance with the provisions of Sections 5.11 and 5.12, when such Mortgage is
filed in the offices specified in the local counsel opinion delivered with respect thereto in
accordance with the provisions of Sections 5.11 and 5.12), the Mortgages shall
constitute fully perfected Liens on, and security interests in, all right, title and interest of
the Loan Parties in the Mortgaged Properties and the proceeds thereof, in each case prior and
superior in right to any other person, other than Liens permitted by such Mortgage.




          (d) Valid Liens. Each Security Document delivered pursuant to Sections 5.11
and 5.12 will, upon execution and delivery thereof, be effective to create in favor of the
Collateral Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on,
and security interests in, all of the Loan Parties’ right, title and interest in and to the
Collateral thereunder, and (i) when all appropriate filings or recordings are made in the
appropriate offices as may be required under applicable law and (ii) upon the taking of possession
or control by the Collateral Agent of such Collateral with respect to which a security interest may
be perfected only by possession or control (which possession or control shall be given to the
Collateral Agent to the extent required by any Security Document), such Security Document will
constitute fully perfected Liens on, and security interests in, all right, title and interest of
the Loan Parties in such Collateral, in each case subject to no Liens other than the applicable
Permitted Collateral Liens.




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          SECTION 3.21 Acquisition Documents; Representations and Warranties in Acquisition
Agreement. Schedule 3.21 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 Lenders 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 Company 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.




          SECTION 3.22 Anti-Terrorism Law. No Loan Party and, to the knowledge of the Loan 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 Loan Party and to the knowledge of the Loan Parties, no Affiliate or broker or other
agent of any Loan Party acting or benefiting in any capacity in connection with the Loans 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 Lender 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.



          (b) No Loan Party and, to the knowledge of the Loan Parties, no broker or other agent of any
Loan Party acting in any capacity in connection with the Loans (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 (b) 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.




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ARTICLE IV




CONDITIONS TO CREDIT EXTENSIONS




          SECTION 4.01 Conditions to Initial Credit Extension. The obligation of each Lender and, if applicable, each Issuing Bank to fund the initial
Credit Extension requested to be made by it shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section 4.01.




          (a) Loan Documents. All legal matters incident to this Agreement, the Credit
Extensions hereunder and the other Loan Documents shall be satisfactory to the Lenders, to the
Issuing Bank and to the Agents and there shall have been delivered to the Administrative Agent an
executed counterpart of each of the Loan Documents and the Perfection Certificate.




          (b) Corporate Documents. The Administrative Agent shall have received:





     (i) a certificate of the secretary or assistant secretary of each Loan Party dated the
Closing Date, certifying (A) that attached thereto is a true and complete copy of each
Organizational Document of such Loan Party certified (to the extent applicable) as of a
recent date by the Secretary of State of the state of its organization, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of
such Loan Party authorizing the execution, delivery and performance of the Loan Documents to
which such person is a party and, in the case of Borrower, the borrowings hereunder, and
that such resolutions have not been modified, rescinded or amended and are in full force and
effect and (C) as to the incumbency and specimen signature of each officer executing any
Loan Document or any other document delivered in connection herewith on behalf of such Loan
Party (together with a certificate of another officer as to the incumbency and specimen
signature of the secretary or assistant secretary executing the certificate in this
clause (i));




     (ii) a certificate as to the good standing of each Loan Party (in so-called “long-form”
if available) as of a recent date, from such Secretary of State (or other applicable
Governmental Authority); and




     (iii) such other documents as the Lenders, the Issuing Bank or the Administrative Agent
may reasonably request.



          (c) Officer’s Certificate. The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by the chief executive officer and the chief
financial officer of Borrower, confirming compliance with the conditions precedent set forth in
this Section 4.01 and Sections 4.02(b), (c) and (d).




          (d) Financings and Other Transactions, etc.




          (i) The Transactions shall have been consummated or shall be consummated simultaneously on the
Closing Date, in each case in all material respects in accordance with the terms hereof and the
terms of the Transaction Documents, without the waiver or amendment of any such terms not approved
by the Administrative Agent and the Arrangers other than any waiver or amendment thereof that is
not materially adverse to the interests of the Lenders.




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          (ii) Borrower shall have received $50,000,000 in gross proceeds from borrowings under the
Senior Unsecured Note Purchase Agreement.




          (iii) The Equity Financing shall have been consummated. The terms of the Equity Financing
shall not require any payments or other distributions of cash or property in respect thereof other
than payments in kind, or any purchases, redemptions or other acquisitions thereof for cash or
property
other than payments in kind, in each case prior to the payment in full of all obligations
under the Loan Documents, except as permitted by the Loan Documents.




          (iv) The Refinancing shall have been consummated in full to the satisfaction of the Lenders
with all liens in favor of the existing lenders being unconditionally released; the Administrative
Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the
Administrative Agent with respect to all debt being refinanced in the Refinancing; and the
Administrative Agent shall have received from any person holding any Lien securing any such debt,
(or the express authority to file) such UCC termination statements, mortgage releases, releases of
assignments of leases and rents, releases of security interests in Intellectual Property and other
instruments, in each case in proper form for recording, as the Administrative Agent shall have
reasonably requested to release and terminate of record the Liens securing such debt.




          (e) Financial Statements; Projections. The Lenders shall have received and shall be
satisfied with the form of the financial statements described in Section 3.04 and with the
forecasts of the financial performance of Holdings, Borrower, the Acquired Business and their
respective Subsidiaries.




          (f) Indebtedness. After giving effect to the Transactions and the other transactions
contemplated hereby, no Company shall have outstanding any Indebtedness or preferred stock other
than (i) the Loans and Credit Extensions hereunder, (ii) the Senior Unsecured Notes, (iii) the
Indebtedness listed on Schedule 6.01(b) and (iv) Indebtedness owed to Borrower or any
Guarantor.




          (g) Opinions of Counsel. The Administrative Agent shall have received, on behalf of
itself, the other Agents, the Arrangers, the Lenders and the Issuing Bank, a favorable written
opinion of (i) Lowenstein Sandler PC, special counsel for the Loan Parties, (ii) each local counsel
listed on Schedule 4.01(g), in each case (A) dated the Closing Date, (B) addressed to the
Agents, the Issuing Bank and the Lenders and (C) covering the matters set forth in Exhibit
N and such other matters relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request, and (iii) a copy of each legal opinion delivered, if
any, under the other Transaction Documents, accompanied by reliance letters from the party
delivering such opinion authorizing the Agents, Lenders and the Issuing Bank to rely thereon as if
such opinion were addressed to them.




          (h) Solvency Certificate. The Administrative Agent shall have received a solvency
certificate in the form of Exhibit O, dated the Closing Date and signed by the chief
financial officer of Borrower.




          (i) Requirements of Law. The Lenders shall be satisfied that the Holdings, its
Subsidiaries and the Transactions shall be in full compliance with all material Requirements of
Law, including Regulations T, U and X of the Board, and shall have received satisfactory evidence
of such compliance reasonably requested by them.




          (j) Consents. The Lenders shall be satisfied that all requisite Governmental
Authorities and third parties shall have approved or consented to the Transactions, and there shall
be no



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governmental or judicial action, actual or threatened, that has or would have, singly or in
the aggregate, a reasonable likelihood of restraining, preventing or imposing burdensome conditions
on the Transactions or the other transactions contemplated hereby.




          (k) Litigation. There shall be no litigation, public or private, or administrative
proceedings, governmental investigation or other legal or regulatory developments, actual or
threatened,
that, singly or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect, or could materially and adversely affect the ability of Holdings, Borrower and the
Subsidiaries to fully and timely perform their respective obligations under the Transaction
Documents, or the ability of the parties to consummate the financings contemplated hereby or the
other Transactions.




          (l) Sources and Uses. The sources and uses of the Loans shall be as set forth in
Section 3.12.




          (m) Fees. The Arrangers and Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses (including the legal fees and expenses of
Cahill Gordon & Reindel llp, special counsel to the Agents, and the fees and expenses of
any local counsel, foreign counsel, appraisers, consultants and other advisors) required to be
reimbursed or paid by Borrower hereunder or under any other Loan Document.




          (n) Personal Property Requirements. The Collateral Agent shall have received:





     (i) satisfactory evidence that all certificates, agreements or instruments representing
or evidencing the Securities Collateral accompanied by instruments of transfer and stock
powers undated and endorsed in blank have been delivered to the Collateral Agent;




     (ii) satisfactory evidence that the Intercompany Note executed by and among Holdings
and each of its Subsidiaries, accompanied by instruments of transfer undated and endorsed in
blank have been delivered to the Collateral Agent;




     (iii) satisfactory evidence that all other certificates, agreements, including Control
Agreements, or instruments necessary to perfect the Collateral Agent’s security interest in
all Chattel Paper, all Instruments, all Deposit Accounts and all Investment Property of each
Loan Party (as each such term is defined in the Security Agreement and to the extent
required by the Security Agreement have been delivered to the Collateral Agent;




     (iv) UCC financing statements in appropriate form for filing under the UCC, filings
with the United States Patent and Trademark Office and United States Copyright Office and
such other documents under applicable Requirements of Law in each jurisdiction as may be
necessary to perfect the Liens created, or purported to be created, by the Security
Documents;




     (v) certified copies of UCC, United States Patent and Trademark Office and United
States Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit
searches or equivalent reports or searches, each of a recent date listing all effective
financing statements, lien notices or comparable documents that name any Loan Party as
debtor and that are filed in those state and county jurisdictions in which any Loan Party is
organized or maintains its principal place of business and such other searches that are
required by the Perfection Certificate or that the Collateral Agent deems necessary or
appropriate, none of which encumber the



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Collateral covered or intended to be covered by the
Security Documents (other than Permitted Collateral Liens or any other Liens acceptable to
the Collateral Agent); and




     (vi) evidence acceptable to the Collateral Agent of payment or arrangements for payment
by the Loan Parties of all applicable recording taxes, fees, charges, costs and expenses
required for the recording of the Security Documents.



          (o) [Reserved].




          (p) Since January 29, 2007, there has not been a Target Material Adverse Effect.




          (q) USA PATRIOT Act. The Lenders shall have received, sufficiently in advance of the
Closing Date, all documentation and other information that may be required by the Lenders in order
to enable compliance with applicable “know your customer” and anti-money laundering rules and
regulations, including the United States PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) including the information described in Section 10.13.




          (r) Maximum Total Leverage Ratio. As of the Closing Date, the Total Leverage Ratio
(based on the last quarter ended at least 45 days prior to the Closing Date) shall not be greater
than 6.50:1.00.




          (s) Balance Sheet. As of the Closing Date, the Acquired Business shall have cash
and/or Cash Equivalents on its balance sheet in an amount equal to the greater of (x) $7.8 million
or (y) the amount owning and/or payable under The Sopris Performance Share Plan 2004, effective as
of February 1, 2004.




          SECTION 4.02 Conditions to All Credit Extensions. The obligation of each Lender and each Issuing Bank to make any Credit Extension (including
the initial Credit Extension) shall be subject to, and to the satisfaction of, each of the
conditions precedent set forth below.




          (a) Notice. The Administrative Agent shall have received a Borrowing Request as
required by Section 2.03 (or such notice shall have been deemed given in accordance with
Section 2.03) if Loans are being requested or, in the case of the issuance, amendment,
extension or renewal of a Letter of Credit, the Issuing Bank and the Administrative Agent shall
have received an LC Request as required by Section 2.18(b)




          (b) No Default. Immediately after giving effect to such Credit Extension and the
application of the proceeds thereof, no Default shall have occurred and be continuing on such date.




          (c) Representations and Warranties. Each of the representations and warranties made
by any Loan Party set forth in Article III hereof or in any other Loan Document shall be
true and correct in all material respects (except that any representation and warranty that is
qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all
respects) on and as of the date of such Credit Extension with the same effect as though made on and
as of such date, except to the extent such representations and warranties expressly relate to an
earlier date.




          (d) No Legal Bar. No order, judgment or decree of any Governmental Authority shall
purport to restrain any Lender from making any Loans to be made by it. No injunction or other
restraining order shall have been issued, shall be pending or noticed with respect to any action,
suit or proceeding seeking to enjoin or otherwise prevent the consummation of, or to recover any
damages or


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obtain relief as a result of, the transactions contemplated by this Agreement or the
making of Loans hereunder.




          Each of the delivery of a Borrowing Request or an LC Request and the acceptance by Borrower of
the proceeds of such Credit Extension shall constitute a representation and warranty by
Borrower and each other Loan Party that on the date of such Credit Extension (both immediately
before and after giving effect to such Credit Extension and the application of the proceeds
thereof) the conditions contained in Sections 4.02(b)-(d) have been satisfied. Borrower
shall provide such information (including calculations in reasonable detail of the covenants in
Section 6.10) as the Administrative Agent may reasonably request to confirm that the
conditions in Sections 4.02(b)-(d) have been satisfied.




ARTICLE V




AFFIRMATIVE COVENANTS




          Each Loan Party warrants, covenants and agrees with each Lender that so long as this Agreement
shall remain in effect and until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document
shall have been paid in full and all Letters of Credit have been canceled, collateralized or have
expired and all amounts drawn thereunder have been reimbursed in full, unless the Required Lenders
shall otherwise consent in writing, each Loan Party will, and will cause each of its Subsidiaries
to:




          SECTION 5.01 Financial Statements, Reports, etc. Furnish to the Administrative Agent and each Lender:





     (a) 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,
(i) 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, Borrower 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, (ii) 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 (iii) 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;




     (b) 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



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March 31, 2007), (i) 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, Borrower 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 (a) of this Section, subject to normal year-end audit
adjustments, (ii) 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 fiscal year,
showing variance, by dollar amount and percentage, from amounts for the comparable periods
in the previous fiscal year and budgeted amounts and (iii) 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;




     (c) Financial Officer’s Certificate. (i) Concurrently with any delivery of
financial statements under Section 5.01(a) or (b), 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 the financial statement delivered for fiscal quarter
ended June 30, 2007, setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants contained in Section
6.10 (including the aggregate amount of Excluded Issuances for such period and the uses
therefor) and, concurrently with any delivery of financial statements under
Section 5.01(a) above (beginning with the fiscal year ending December 31, 2008),
setting forth Borrower’s calculation of Excess Cash Flow and (C) showing a reconciliation of
Consolidated EBITDA to the net income set forth on the statement of income; and
(ii) concurrently with any delivery of financial statements under Section 5.01(a)
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; provided that Compliance Certificates
delivered in respect of periods prior to the fiscal quarter ending June 30, 2007, shall not
be required to include computations showing compliance with the covenant contained in
Section 6.10.




     (d) Financial Officer’s Certificate Regarding Collateral. Concurrently with
any delivery of financial statements under Section 5.01(a), a certificate (which may
be included as part of the Compliance Certificate) of a Financial Officer setting forth the
information required pursuant to the Perfection Certificate Supplement or confirming that
there has been no change in such information since the date of the Perfection Certificate or
latest Perfection Certificate Supplement;




     (e) Reserved.



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     (f) Management Letters. Promptly after the receipt thereof by any Company, a
copy of any “management letter” received by any such person from its certified public
accountants and the management’s responses thereto;




     (g) Budgets. Within 30 days after the beginning of each fiscal year, a budget
for Holdings in form reasonably satisfactory to the Administrative Agent, but to include
balance sheets, statements of income and sources and uses of cash, for each fiscal quarter
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 Borrower to the effect that
the budget of Holdings is a reasonable estimate for the periods covered thereby and,
promptly when available, any significant revisions of such budget;




     (h) Organization. Concurrently with any delivery of financial statements under
Section 5.01(a), an accurate organizational chart as required by
Section 3.07(c), or confirmation that there are no changes to Schedule 10(a)
to the Perfection Certificate;




     (i) 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 Company under any Organizational
Document within 15 days after such Company gives or receives such notice; and




     (j) Other Information. Promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of any Company, or
compliance with the terms of any Loan Document, as the Administrative Agent or Required
Lenders may reasonably request; provided that the Company will furnish promptly to the
Administrative Agent the name of any person that becomes an Equity Investor after the
Closing Date whether or not requested by the Administrative Agent or Required Lenders.




     (k) With respect to each Test Period for which a Cure Right will be exercised, on the
date the financial statements pursuant to Section 5.01(a) or (b) have been,
or should have been, delivered for the applicable fiscal period, Borrower shall deliver
together with such financial statements an Officer’s Certificate of a Financial Officer of
Borrower containing a computation in reasonable detail of the applicable 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
8.04.



          SECTION 5.02 Litigation and Other Notices. Furnish to the Administrative Agent and each Lender written notice of the following
promptly (and, in any event, within three Business Days of the occurrence thereof):





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




     (b) the filing or commencement of, or any written threat or notice of intention of any
person to file or commence, any action, suit, litigation, investigation or proceeding,
whether at law or in equity by or before any Governmental Authority, (i) against any Company
or any Affiliate thereof that could reasonably be expected to result in a Material Adverse
Effect or (ii) with respect to any Loan Document;



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     (c) any development that has resulted in, or, within ninety (90) days, could reasonably
be expected to result in a Material Adverse Effect;




     (d) the occurrence of a Casualty Event in excess of $250,000; and




     (e) (i) the incurrence of any material Lien (other than Permitted Collateral Liens) on,
or claim asserted against any of the Collateral or (ii) the occurrence of any other event
which could materially affect the value of the Collateral.



          SECTION 5.03 Existence; Businesses and Properties.




          (a) 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 6.05
or Section 6.06 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.




          (b) 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 at all times
maintain, preserve and protect all property material to the conduct of such business and keep such
property in working order; provided that nothing in this Section 5.03(b) shall prevent
(i) sales of property, consolidations or mergers by or involving any Company in accordance with
Section 6.05 or Section 6.06; (ii) the withdrawal by any Company 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
(iii) the abandonment by any Company 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.




          SECTION 5.04 Insurance.




          (a) 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 Companies 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 (i) physical hazard insurance
on an “all risk” basis, (ii) commercial general liability against claims for bodily injury, death
or property damage covering any and all insurable claims, (iii) explosion insurance in respect of
any boilers, machinery or similar apparatus constituting Collateral, (iv) business interruption
insurance and (v) worker’s compensation insurance and such other insurance as may be required by
any Requirement of Law; provided that with respect to
physical hazard insurance, neither the Collateral Agent nor the applicable Company shall agree
to the



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adjustment of any claim thereunder without the consent of the other (such consent not to be
unreasonably withheld or delayed); provided, further, that (i) no consent of any Company shall be
required during an Event of Default and (ii) so long as no Event of Default exists, no consent of
the Collateral Agent shall be required for any insurance claim having a value of less than
$250,000.




          (b) Requirements of Insurance. All such insurance shall (i) provide that no
cancellation, material reduction in amount or material change in coverage thereof shall be
effective until at least the lesser of (x) 30 days after receipt by the Collateral Agent of written
notice thereof and (y) the notice period prescribed or permitted under applicable regulation or
law, (ii) name the Collateral Agent as mortgagee (in the case of property insurance) or additional
insured on behalf of the Secured Parties (in the case of liability insurance) or loss payee (in the
case of property insurance), as applicable and (iii) if reasonably requested by the Collateral
Agent, include a breach of warranty clause.




          (c) Notice to Agents. Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing in the event of loss
with that required to be maintained under this Section 5.04 is taken out by any Company;
and promptly deliver to the Administrative Agent and the Collateral Agent a duplicate original copy
of such policy or policies.




          (d) [Reserved].




          (e) Broker’s Report. Deliver to the Administrative Agent and the Collateral Agent and
the Lenders a report of a reputable insurance broker with respect to such insurance and such
supplemental reports with respect thereto as the Administrative Agent or the Collateral Agent may
from time to time reasonably request.




          (f) Mortgaged Properties. No Loan Party that is an owner of Mortgaged Property 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 under such Loan Party’s respective Mortgage or
that could be the basis for a defense to any claim under any Insurance Policy maintained in respect
of the Premises, and each Loan Party shall otherwise comply in all material respects with all
Insurance Requirements in respect of the Premises; provided, however, that each Loan Party may, at
its own expense and after written notice to the Administrative Agent, (i) 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 5.04 or (ii) cause the Insurance Policy containing any
such Insurance Requirement to be replaced by a new policy complying with the provisions of this
Section 5.04.




          SECTION 5.05 Obligations and Taxes.




          (a) 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)(i) the validity or amount
thereof shall be contested in good faith by appropriate proceedings timely instituted and
diligently conducted and the applicable Company shall have set aside on its books adequate reserves
or other appropriate provisions with respect thereto in accordance with GAAP, (ii) such contest
operates to



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suspend collection of the contested obligation, Tax, assessment or charge and
enforcement of a Lien other than a Permitted Lien and (iii) in the case of Collateral, the
applicable Company shall have otherwise complied with the Contested Collateral 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.




          (b) 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.




          (c) Tax Shelter Reporting. Borrower does not intend to treat the Loans as being a
“reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4. In the event
Borrower determines to take any action inconsistent with such intention, it will promptly notify
the Administrative Agent thereof.




          SECTION 5.06 Employee Benefits. (a) 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 (b) furnish to the Administrative Agent (x) as soon as
possible after, and in any event within 5 days after any Responsible Officer of any Company or any
ERISA Affiliates of any Company 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 Companies or any of their ERISA Affiliates in an aggregate amount exceeding $2.5
million, a statement of a Financial Officer of Borrower setting forth details as to such ERISA
Event and the action, if any, that the Companies propose to take with respect thereto, and (y) upon
request by the Administrative Agent, copies of (i) each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) filed by any Company or any ERISA Affiliate with the Internal
Revenue Service with respect to each Plan; (ii) the most recent actuarial valuation report for each
Plan; (iii) all notices received by any Company or any ERISA Affiliate from a Multiemployer Plan
sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or
governmental reports or filings relating to any Plan (or employee benefit plan sponsored or
contributed to by any Company) as the Administrative Agent shall reasonably request.




          SECTION 5.07 Maintaining Records; Access to Properties and Inspections; Annual
Meetings.




          (a) 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 Company will, once per
calendar year (provided that there will be no such restriction following the existence of an Event
of Default), will permit any representatives designated by the Administrative Agent to visit and
inspect the financial records and the property of such Company at reasonable times and to make
extracts from and copies of such financial records, and permit any representatives designated by
the Administrative Agent to discuss the affairs, finances, accounts and condition of any Company
with the officers and employees thereof and advisors therefor (including independent accountants).




          (b) Within 150 days after the end of each fiscal year of the Companies, at the request of the
Administrative Agent or Required Lenders, hold a conference call (at a mutually agreeable time, the
costs of such call to be paid by Borrower) with all Lenders who choose to participate in such call,
on which call shall be reviewed the financial results of the previous fiscal year and the financial
condition of the Companies and the budget presented for the current fiscal year of the Companies.




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          SECTION 5.08 Use of Proceeds. Use the proceeds of the Loans only for the purposes set forth in Section 3.12 and
request the issuance of Letters of Credit only for the purposes set forth in the definition of
Standby Letter of Credit.




          SECTION 5.09 Compliance with Environmental Laws; Environmental Reports.




          (a) Comply, and cause all lessees and other persons occupying Real Property owned, operated or
leased by any Company 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 Company 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 3.18 or
Section 5.09(a) shall have occurred and be continuing for more than 20 days without the
Companies commencing activities reasonably likely to cure such Default in accordance with
Environmental Laws, at the written request of the Administrative Agent or the Required Lenders
through the Administrative Agent, provide to the Lenders within 60 days after such request, at the
expense of Borrower, 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.




          SECTION 5.10 Interest Rate Protection. No later than the 90th day after the Closing Date, Borrower shall enter into, and for a
minimum of three years thereafter maintain, Hedging Agreements with terms and conditions acceptable
to the Administrative Agent that result in at least 50% of the aggregate principal amount of the
Senior Unsecured Notes and the Tranche B Loans other than Revolving Loans being effectively subject
to a fixed or maximum interest rate reasonably acceptable to the Administrative Agent.




          SECTION 5.11 Additional Collateral; Additional Guarantors.




          (a) Subject to the terms of this Section 5.11 and the Security Documents, with respect
to any property acquired after the Closing Date by any Loan Party that is intended to be subject to
the Lien created by any of the Security Documents but is not so subject, promptly (and in any event
within 30 days after the acquisition thereof), at the written request of the Collateral Agent,
(i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or
supplements to the relevant Security Documents or such other documents as the Administrative Agent
or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its
benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no
Liens other than Permitted Collateral Liens, and (ii) take all actions necessary to cause such Lien
to be duly perfected to the extent required by such Security Document in accordance with all
applicable Requirements of Law, including the filing of financing statements in such jurisdictions
as may be reasonably requested by the Administrative Agent. Borrower shall otherwise take such
actions and execute and/or deliver to the Collateral Agent such documents as the Administrative
Agent or the Collateral Agent shall require to confirm the validity, perfection and priority of the
Lien of the Security Documents on such after-acquired properties.




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          (b) 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) (i) deliver to
the Collateral Agent the certificates, if any, representing all of the Equity Interests of such
Subsidiary, together with undated stock powers or other appropriate instruments of transfer
executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity
Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with
instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan
Party and (ii) cause such new Subsidiary (A) to execute a Joinder Agreement or such comparable
documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Security
Agreement, substantially in the form annexed thereto or, in the case of a Foreign Subsidiary,
execute a security agreement compatible with the laws of such Foreign Subsidiary’s jurisdiction in
form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions
necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause
the Lien created by the applicable Security Agreement to be duly perfected to the extent required
by such agreement in accordance with all applicable Requirements of Law, including the filing of
financing statements in such jurisdictions as may be reasonably requested by the Administrative
Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to
be delivered to the Collateral Agent pursuant to clause (i) of this Section 5.11(b) shall
not include any Equity Interests of a Foreign Subsidiary created or acquired after the Closing Date
and (2) no Foreign Subsidiary shall be required to take the actions specified in clause (ii) of
this Section 5.11(b), if, in the case of either clause (1) or (2), 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 reasonably determined by the Borrower;
provided that this exception shall not apply to (A) 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 (B) 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 5.11(b).




          (c) Promptly grant to the Collateral Agent, within 30 days of the acquisition thereof, a
security interest in and Mortgage on each Real Property owned in fee by such Loan Party as is
acquired by such Loan Party after the Closing Date and that, together with any improvements
thereon, individually has a fair market value of at least $1.0 million, as additional security for
the Secured Obligations (unless the subject property is already mortgaged to a third party to the
extent permitted by Section 6.02). Such Mortgages shall be granted pursuant to
documentation reasonably satisfactory in form and substance to the Administrative Agent and the
Collateral Agent and shall constitute valid and enforceable perfected
Liens subject only to Permitted Collateral Liens or other Liens acceptable to the Collateral
Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner
and in such places as are required by law to establish, perfect, preserve and protect the Liens in
favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees
and other charges payable in connection therewith shall be paid in full. Such Loan Party shall
otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as
the Administrative Agent or the Collateral Agent shall require to confirm the validity, perfection
and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real
Property (including a Title Policy, a Survey and local counsel opinion (in form and substance
reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such
Mortgage).




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          SECTION 5.12 Security Interests; Further Assurances. Promptly, upon the reasonable request of the Administrative Agent, the Collateral Agent or
any Lender, at Borrower’s expense, execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or instrument supplemental
to or confirmatory of the Security Documents or otherwise deemed by the Administrative Agent or the
Collateral Agent reasonably necessary or desirable for the continued validity, perfection and
priority of the Liens on the Collateral covered thereby subject to no other Liens except as
permitted by the applicable Security Document, or obtain any consents or waivers as may be
necessary or appropriate in connection therewith. Deliver or cause to be delivered to the
Administrative Agent and the Collateral Agent from time to time such other documentation, consents,
authorizations, approvals and orders in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent as the Administrative Agent and the Collateral Agent
shall reasonably deem necessary to perfect or maintain the Liens on the Collateral pursuant to the
Security Documents. Upon the exercise by the Administrative Agent, the Collateral Agent or any
Lender of any power, right, privilege or remedy pursuant to any Loan 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, the Collateral Agent or such Lender may require. If the
Administrative Agent, the Collateral Agent or the Required Lenders determine that they are required
by a Requirement of Law to have appraisals prepared in respect of the Real Property of any Loan
Party constituting Collateral, Borrower shall provide to the Administrative Agent appraisals that
satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA and
are otherwise in form and substance satisfactory to the Administrative Agent and the Collateral
Agent.




          SECTION 5.13 Information Regarding Collateral.




          (a) Not effect any change (i) in any Loan Party’s legal name, (ii) in the location of any Loan
Party’s chief executive office, (iii) in any Loan Party’s identity or organizational structure,
(iv) in any Loan Party’s Federal Taxpayer Identification Number or organizational identification
number, if any, or (v) in any Loan 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 (A) it shall have given the Collateral Agent and the
Administrative Agent 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 Collateral Agent, of its intention so
to do, clearly describing such change and providing such other information in connection therewith
as the Collateral Agent or the Administrative Agent may
reasonably request and (B) it shall have taken all action reasonably satisfactory to the
Collateral Agent to maintain the perfection and priority of the security interest of the Collateral
Agent for the benefit of the Secured Parties in the Collateral, if applicable. Each Loan Party
agrees to promptly provide the Collateral Agent with certified Organizational Documents reflecting
any of the changes described in the preceding sentence. Each Loan Party also agrees to promptly
notify the Collateral Agent of any change in the location of any office in which it maintains books
or records relating to Collateral owned by it or any office or facility at which Collateral is
located (including the establishment of any such new office or facility), other than changes in
location to a Mortgaged Property or a leased property subject to a Landlord Access Agreement.




          (b) Concurrently with the delivery of financial statements pursuant to
Section 5.01(a), deliver to the Administrative Agent and the Collateral Agent a Perfection
Certificate Supplement.




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          SECTION 5.14 Affirmative Covenants with Respect to Leases. With respect to each Lease for Real Property, the respective Loan 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.




ARTICLE VI




NEGATIVE COVENANTS




          Each Loan Party warrants, covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan
Document have been paid in full and all Letters of Credit have been canceled or have expired or
collateralized and all amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, no Loan Party will, nor will they cause or permit any
Subsidiaries to:




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




          (a) Indebtedness incurred under this Agreement and the other Loan Documents;





     (b) (i) Indebtedness outstanding on the Closing Date and listed on
Schedule 6.01(b), and (ii) 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 Lenders than those
contained in the Indebtedness being renewed or refinanced;




     (c) Indebtedness incurred under the Senior Unsecured Note Purchase Agreement in an
aggregate original principal amount not to exceed $75.0 million (together with any increase
in
the principal amount thereof due to the payment of pay-in-kind interest) at any time
outstanding; provided that, in the case of any replacement or refinancing after the date
hereof, the original principal amount of the replacement or refinancing Indebtedness shall
not exceed $75.0 million (together with any increase in the principal amount thereof due to
the payment of pay-in-kind interest)and the yield on the replaced or refinanced Indebtedness
shall not be greater than the yield on the Indebtedness being replaced or refinanced;




     (d) 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, (i) such
Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be
incurred by the Loan Documents and (ii) 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;



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     (e) Indebtedness permitted by Section 6.04(f) and (i);




     (f) 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;




     (g) Indebtedness in respect of bid, performance or surety bonds, workers’ compensation
claims, self-insurance obligations and bankers acceptances issued for the account of any
Company in the ordinary course of business, including guarantees or obligations of any
Company 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);




     (h) Contingent Obligations of any Loan Party in respect of Indebtedness otherwise
permitted under this Section 6.01;




     (i) 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;




     (j) Indebtedness arising in connection with endorsement of instruments for deposit in
the ordinary course of business;




     (k) other Indebtedness incurred or assumed in connection with a Permitted Acquisition
in an aggregate amount not to exceed $5.0 million;




     (l) 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;




     (m) Indebtedness of any Subsidiary to Borrower or any Subsidiary Guarantor or of
Borrower to any Subsidiary Guarantor; and




     (n) Indebtedness consisting of Attributable Indebtedness incurred in connection with
any transactions permitted by Section 6.06(f); and




     (o) unsecured Indebtedness of any Company in an aggregate amount not to exceed $5.0
million at any time outstanding.



          SECTION 6.02 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”):




     (a) 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 (i) 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



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in connection with such proceedings) have the effect of preventing the
forfeiture or sale of the property subject to any such Lien, and (ii) in the case of any
such charge or claim which has or may become a Lien against any of the Collateral, such Lien
and the contest thereof shall satisfy the Contested Collateral Lien Conditions;




          (b) Liens in respect of property of any Company 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 (i) which do not in the aggregate materially detract from the value of the
property of the Companies, taken as a whole, and do not materially impair the use thereof in
the operation of the business of the Companies, taken as a whole, (ii) 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 (iii) in the
case of any such Lien which has or may become a Lien against any of the Collateral, such
Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions;




          (c) any Lien in existence on the Closing Date and set forth on Schedule 6.02(c)
and any Lien granted as a replacement or substitute therefor; provided that any such
replacement or substitute Lien (i) except as permitted by Section 6.01(b)(ii)(A),
does not secure an aggregate amount of Indebtedness, if any, greater than that secured on
the Closing Date and (ii) does not encumber any property other than the property subject
thereto on the Closing Date (any such Lien, an “Existing Lien”);




          (d) 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 (i) securing Indebtedness, (ii) individually or in the aggregate
materially impairing the value or marketability of such Real Property or (iii) individually
or in the aggregate materially interfering with the ordinary conduct of the business of the
Companies at such Real Property;




          (e) Liens arising out of judgments, attachments or awards not resulting in a Default;




          (f) 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 (f), 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




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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 of the Collateral, such
Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions;




          (g) Leases of the properties of any Company, in each case entered into in the ordinary
course of such Company’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
Security Documents and do not, individually or in the aggregate, (i) interfere in any
material respect with the ordinary conduct of the business of any Company, or
(ii) materially impair the use (for its intended purposes) or the value of the property
subject thereto;




          (h) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by any Company in the ordinary course of
business in accordance with the past practices of such Company;




          (i) Liens securing Indebtedness incurred pursuant to Section 6.01(f); 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 Company;




          (j) 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
Company, 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;




          (k) Liens on property of a person existing at the time such person is acquired or
merged with or into or consolidated with any Company 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;




          (l) Liens granted pursuant to the Security Documents to secure the Secured Obligations;




          (m) licenses of Intellectual Property granted by any Company in the ordinary course of
business and not interfering in any material respect with the ordinary conduct of business
of the Companies;




          (n) the filing of UCC financing statements solely as a precautionary measure in
connection with operating leases or consignment of goods; and




          (o) Liens incurred in the ordinary course of business of any Company with respect to
obligations that do not in the aggregate exceed $2.0 million at any time outstanding, so
long as such Liens, to the extent covering any Collateral, are junior to the Liens granted
pursuant to the Security Documents.




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          SECTION 6.03 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 Leaseback Transaction”) unless (i) the sale of such property is permitted by
Section 6.06 and (ii) any Liens arising in connection with its use of such property are
permitted by Section 6.02.




          SECTION 6.04 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:





     (a) the Companies may consummate the Transactions in accordance with the provisions of
the Transaction Documents;




     (b) Investments outstanding on the Closing Date and identified on
Schedule 6.04(b);




     (c) the Companies may (i) 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, (ii) invest in, acquire and hold cash and Cash Equivalents,
(iii) endorse negotiable instruments held for collection in the ordinary course of business
or (iv) make lease, supplier, utility and other similar deposits in the ordinary course of
business;




     (d) Hedging Obligations incurred pursuant to Section 6.01(d);




     (e) loans and advances to directors, employees and officers of Borrower 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;




     (f) Investments (i) by any Company in Borrower or any Subsidiary Guarantor, (ii) by any
Company in any Person that, in connection with an Investment that is a Permitted
Acquisition, becomes a Subsidiary Guarantor and (iii) by a Subsidiary that is not a
Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor; provided
that any Investment in the form of a loan or advance shall be evidenced by the Intercompany
Note and, in the case of a loan or advance by a Loan Party, pledged by such Loan Party as
Collateral pursuant to the Security Documents;




     (g) 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;




     (h) Investments made by Borrower or any Subsidiary as a result of consideration
received in connection with an Asset Sale made in compliance with Section 6.06;




     (i) Investments made in compliance with Section 6.21; and



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     (j) 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 Borrower or any Subsidiary Guarantor.




          SECTION 6.05 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:





     (a) Asset Sales in compliance with Section 6.06;




     (b) acquisitions in compliance with Section 6.07;




     (c) any Company may merge or consolidate with or into Borrower or any Subsidiary
Guarantor (as long as Borrower is the surviving person in the case of any merger or
consolidation involving Borrower and a Subsidiary Guarantor is the surviving person and
remains a Wholly Owned Subsidiary of Holdings in any other case); provided that the Lien on
and security interest in such property granted or to be granted in favor of the Collateral
Agent under the Security Documents shall be maintained or created in accordance with the
provisions of Section 5.11 or Section 5.12, as applicable;




     (d) 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




     (e) the Transactions as contemplated by the Transaction Documents, including, without
limitation, the Acquisition, the filing of the Merger Certificate and the Merger.



          To the extent the Required Lenders or all the Lenders, as applicable, waive the provisions of
this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 6.05, such Collateral (unless sold to a Company) shall be sold
free and clear of the Liens created by the Security Documents, and, so long as Borrower shall have
provided the Agents such certifications or documents as any Agent shall reasonably request in order
to demonstrate compliance with this Section 6.05, the Agents shall take all actions they
deem appropriate in order to effect the foregoing.




          SECTION 6.06 Asset Sales. Effect any Asset Sale, or agree to effect any Asset Sale, except that the following shall
be permitted:





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




     (b) Asset Sales; provided that the aggregate consideration received in respect of all
Asset Sales pursuant to this clause (b) shall not exceed $5.0 million in any four
consecutive fiscal quarters of Borrower, but, in any event, shall not exceed $2.0 million
with respect to any single Asset Sale;



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     (c) leases of real or personal property in the ordinary course of business and in
accordance with the applicable Security Documents;




     (d) mergers and consolidations in compliance with Section 6.05;




     (e) Investments in compliance with Section 6.04; and




     (f) solely in connection with and as contemplated by a Permitted Acquisition, Sale and
Leaseback Transaction not to exceed $10.0 million.



          To the extent the Required Lenders or all the Lenders, as applicable, waive the provisions of
this Section 6.06 with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 6.06, such Collateral (unless sold to a Company) shall be sold
free and clear of the Liens created by the Security Documents, and, so long as Borrower shall have
provided the Agents such certifications or documents as any Agent shall reasonably request in order
to demonstrate compliance with this Section 6.06, the Agents shall take all actions they
deem appropriate in order to effect the foregoing.




          SECTION 6.07 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:





     (a) Capital Expenditures by Borrower and the Subsidiaries;




     (b) purchases and other acquisitions of inventory, materials, contracts, equipment,
intangible property and other assets in the ordinary course of business;




     (c) Investments in compliance with Section 6.04;




     (d) leases of real or personal property in the ordinary course of business and in
accordance with the applicable Security Documents;




     (e) Permitted Acquisitions; and




     (f) mergers and consolidations in compliance with Section 6.05;


provided that the Lien on and security interest in such property granted or to be granted in favor
of the Collateral Agent under the Security Documents shall be maintained or created in accordance
with the provisions of Section 5.11 or Section 5.12, as applicable.




          SECTION 6.08 Dividends. Authorize, declare or pay, directly or indirectly, any Dividends with respect to any
Company, except that the following shall be permitted:





     (a) Dividends by any Company to Borrower or any Guarantor that is a Wholly Owned
Subsidiary of Borrower;




     (b) 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 Company, upon their death, disability,
retirement, severance or termination of employment or service; provided that the aggregate
cash



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consideration paid for all such redemptions and payments 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 Borrower 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 Company that have not been used to make any repurchases, redemptions or payments
under this clause (b), plus (z) the net cash proceeds of any “key-man” life insurance
policies of any Company that have not been used to make any repurchases, redemptions or
payments under this clause (b);




     (c) (A) to the extent actually used by Holdings to pay such taxes, costs and expenses,
payments by Borrower 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
Borrower 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;




     (d) Permitted Tax Distributions by (i) Borrower to Holdings and (ii) Holdings to the
holders of its Equity Interest; and




     (e) payments made to Holdings to permit Holdings to make payments permitted by
Section 6.09(e).



          SECTION 6.09 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 Company (other than
between or among Borrower and one or more Subsidiary Guarantors), other than on terms and
conditions at least as favorable to such Company as would reasonably be obtained by such Company at
that time in a comparable arm’s-length transaction with a person other than an Affiliate, except
that the following shall be permitted:





     (a) Dividends permitted by Section 6.08;




     (b) Investments permitted by Sections 6.04(e), (f)(i) and (iii), and
(i) and (j);




     (c) 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
Borrower;




     (d) 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 Loan Documents;



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     (e) so long as no Default exists and the Administrative Agent 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 (e)(i) shall in any event not exceed $260,000 per fiscal year,
(ii) the payment of transaction fees to VSS LLC 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;




     (f) the existence of, and the performance by any Loan 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 Lenders 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 Loan 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 6.09(f) to the extent not more adverse to the interest of
the Lenders in any material respect, when taken as a whole, than any of such documents and
agreements as in effect on the Closing Date;




     (g) sales of Qualified Capital Stock of Holdings to Affiliates of Borrower (except as
permitted under Section 6.08(b)) not otherwise prohibited by the Loan Documents and
the granting of registration and other customary rights in connection therewith;




     (h) any transaction with an Affiliate where the only consideration paid by any Loan
Party is Qualified Capital Stock of Holdings;




     (i) exercise of the Cure Right;




     (j) the transactions set forth on Schedule 6.09 of this Agreement; and




     (k) the Transactions as contemplated by the Transaction Documents.



          SECTION 6.10 Financial Covenant. Permit the Total Leverage Ratio, as of the last day of any Test Period in effect during any
period in the table below, to exceed the ratio set forth opposite such period in the table below:




	 	 	 
	                      Test Period	 	Leverage Ratio
	Closing Date — December 31, 2007

	 	8.0 to 1.0
	Fiscal Quarter Ended March 31, 2008

	 	8.0 to 1.0
	Fiscal Quarter Ended June 30, 2008

	 	7.75 to 1.0
	Fiscal Quarter Ended September 30, 2008

	 	7.50 to 1.0
	Fiscal Quarter Ended December 31, 2008

	 	7.50 to 1.0
	Fiscal Year 2009

	 	6.50 to 1.0
	Fiscal Year 2010

	 	5.50 to 1.0
	Fiscal Year 2011

	 	4.50 to 1.0
	Thereafter

	 	4.00 to 1.0






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          SECTION 6.11 Prepayments of Other Indebtedness; Modifications of Organizational Documents
and Other Documents, etc. Directly or indirectly:





     (a) 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 6.01(c);




     (b) amend or modify, or permit the amendment or modification of, any provision of any
Transaction Document (other than with respect to the Senior Unsecured Note Purchase
Documents) if in any manner that is adverse in any material respect to the interests of the
Lenders 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)
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);




     (c) amend or modify, or permit the amendment or modification of, any provision of any
Senior Unsecured Note Purchase Document if the effect of such amendment or modification is
to (i) change dates upon which payments of principal or interest are due thereon (other than
changes that shorten the maturity date on the Senior Unsecured Notes to a date no earlier
than six months after the Tranche B Maturity Date), (ii) 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 or as permitted below) or
(iii) change the redemption, prepayment or defeasance provisions thereof; provided, however,
that no increase in the interest rate otherwise permitted by this clause (c) shall be
permitted if after giving effect to such increase on a Pro Forma Basis the Borrower shall
not be in compliance with the Total Leverage Ratio required by the covenant set forth in
Section 6.10 as of the most recent Test Period. Notwithstanding any of the foregoing
restrictions, any amendment or modification of any provision of any Senior Unsecured Note
Purchase Document shall be permitted to the extent the effect of such amendment or
modification is to make conforming changes to match changes made to the Loan Documents so as
to preserve, in connection with any amendments to the Loan Documents, on substantially
similar terms, the differential (if any) that exists on the date hereof between such
covenants, defaults or events of defaults in the Loan Documents and such covenants, defaults
or events of default in the Senior Unsecured Note Purchase Documents; or




     (d) terminate, amend or modify any of its Organizational Documents (including (x) by
the filing or modification of any certificate of designation and (y) any election to treat
any Pledged Securities (as defined in the Security Agreement) as a “security” under Section
8-103 of the UCC other than concurrently with the delivery of certificates representing such
Pledged Securities to the Collateral Agent) or any agreement to which it is a party with
respect to its



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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 the Lenders; provided that Holdings may issue
such Equity Interests, so long as such issuance is not prohibited by Section 6.13 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.



          SECTION 6.12 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 Borrower or any Subsidiary, or pay any Indebtedness owed to Borrower or a Subsidiary,
(b) make loans or advances to Borrower or any Subsidiary or (c) transfer any of its properties to
Borrower 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 Loan Documents;
(iii) the Senior Unsecured Note Purchase 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 6.02 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 6.06 pending the consummation of such sale; (viii) any agreement in
effect at the time such Subsidiary becomes a Subsidiary of Borrower, so long as such agreement was
not entered into in connection with or in contemplation of such person becoming a Subsidiary of
Borrower; (ix) without affecting the Loan Parties’ obligations under Section 5.11,
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 a Loan 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 Loan 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.




          SECTION 6.13 Limitation on Issuance of Capital Stock.




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




          (b) With respect to Borrower 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



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which do not decrease the percentage ownership of Borrower or any Subsidiaries in
any class of the Equity Interest of such Subsidiary; (ii) Subsidiaries of Borrower formed after the
Closing Date in accordance with Section 6.14 may issue Equity Interests to Borrower or the
Subsidiary of Borrower which is to own such Equity Interests; and (iii) Borrower may issue common
stock that is Qualified Capital Stock to Holdings. All Equity Interests issued in accordance with
this Section 6.13(b) shall, to the extent required by Sections 5.11 and
5.12 or any Security Agreement or if such Equity Interests are issued by Borrower, be
delivered to the Collateral Agent for pledge pursuant to the applicable Security Agreement.




          SECTION 6.14 Limitation on Creation of Subsidiaries. Other than as permitted pursuant to Section 6.21, establish, create or acquire any
additional Subsidiaries without the prior written consent of the Required Lenders; provided that,
without such consent, Borrower may (i) establish or create one or more Wholly Owned Subsidiaries of
Borrower, (ii) establish, create or acquire one or more Subsidiaries in connection with an
Investment made pursuant
to Section 6.04 or (iii) acquire one or more Subsidiaries in connection with a
Permitted Acquisition, so long as, in each case, Section 5.11(b) shall be complied with.




          SECTION 6.15 Business.




          (a) With respect to Holdings, engage in any business activities or have any properties or
liabilities, other than (i) its ownership of the Equity Interests of Borrower or any parent company
of Borrower whose only asset is its beneficial ownership of Borrower and is a direct or indirect
wholly owned subsidiary of Holdings, (ii) obligations under the Loan Documents and the Senior
Unsecured Note Purchase Documents, and (iii) activities, properties and/or liabilities or other
obligations incidental to the foregoing clauses (i) and (ii), 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 or organization.




          (b) With respect to Borrower and the Subsidiaries, engage (directly or indirectly) in any
business other than those businesses in which Borrower and its Subsidiaries are engaged on the
Closing Date as described in the Confidential Information Memorandum (or, in the good faith
judgment of the Board of Directors, which are substantially related thereto or are reasonable
extensions thereof).




          SECTION 6.16 Limitation on Accounting Changes. Make or permit any change in accounting policies or reporting practices, without the
consent of the Required Lenders, which consent shall not be unreasonably withheld, except changes
that are required by GAAP.




          SECTION 6.17 Fiscal Year. Change its fiscal year-end to a date other than December 31.




          SECTION 6.18  No Further Negative Pledge. Enter into any agreement, instrument, deed or lease which, by its terms, prohibits or
limits the ability of any Loan 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 Loan Documents and the Senior Unsecured Note
Purchase Documents; (2) covenants in documents creating Liens permitted by Section 6.02
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 Loan Documents on
any Collateral securing the Secured Obligations and does not require the direct or indirect
granting of any



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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 Secured Obligations; 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 6.06 pending the consummation of such sale, (c) restricts
subletting or assignment of any lease governing a leasehold interest of Borrower or a Subsidiary,
(d) exists in any agreement in effect at the time such Subsidiary becomes a Subsidiary of Borrower,
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
Loan
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.




          SECTION 6.19 Anti-Terrorism Law; Anti-Money Laundering.




          (a) 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 3.22, (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 Loan Parties shall deliver to the
Lenders any certification or other evidence requested from time to time by any Lender in its
reasonable discretion, confirming the Loan Parties’ compliance with this Section 6.19).




          (b) Cause or permit any of the funds of such Loan Party that are used to repay the Loans to be
derived from any unlawful activity with the result that the making of the Loans would be in
violation of any Requirement of Law.




          SECTION 6.20 Embargoed Person. Cause or permit (a) any of the funds or properties of the Loan Parties that are used to
repay the Loans 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 Loan Parties (whether directly or indirectly) is prohibited by a Requirement of Law, or the
Loans made by the Lenders 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 Loan Parties, with
the result that the investment in the Loan Parties (whether directly or indirectly) is prohibited
by a Requirement of Law or the Loans are in violation of a Requirement of Law.




          SECTION 6.21 Additional Holding Companies. Establish, create or acquire any additional Subsidiaries without the prior written consent
of the Required Lenders; 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 6.04 or (c) acquire
one or more direct Subsidiaries in connection with a Permitted


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Acquisition, so long as, in each
case, Section 5.11(b) shall be complied with and such Subsidiary to the extent it is the
direct parent entity of Borrower, shall assume all obligations of Holdings under this Agreement and
the Fee Letter by entering into a Joinder
Agreement as set forth in Exhibit F and upon any such assumption Holdings shall be
released from all its obligations under this Agreement, the Fee Letter and the Other Loan
Documents.




ARTICLE VII




GUARANTEE




          SECTION 7.01 The Guarantee. The Guarantors hereby jointly and severally guarantee, as a primary obligor and not as a
surety to each Secured Party and their respective successors and assigns, the prompt payment in
full when due (whether at stated maturity, by required prepayment, declaration, demand, by
acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or
charges that would accrue but for the provisions of the Title 11 of the United States Code after
any bankruptcy or insolvency petition under Title 11 of the United States Code) on the Loans made
by the Lenders to, and the Notes held by each Lender of, Borrower, and all other Secured
Obligations from time to time owing to the Secured Parties by any Loan Party under any Loan
Document or any Hedging Agreement or Treasury Services Agreement entered into with a counterparty
that is a Secured Party, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the “Guaranteed Obligations”). The Guarantors hereby
jointly and severally agree that if Borrower or other Guarantor(s) shall fail to pay in full when
due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations,
the Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or renewal.




          SECTION 7.02 Obligations Unconditional. The obligations of the Guarantors under Section 7.01 shall constitute a guaranty of
payment and to the fullest extent permitted by applicable Requirements of Law, are absolute,
irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity,
regularity or enforceability of the Guaranteed Obligations of Borrower under this Agreement, the
Notes, if any, or any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a surety or Guarantor (except for payment in full).
Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or
more of the following shall not alter or impair the liability of the Guarantors hereunder which
shall remain absolute, irrevocable and unconditional under any and all circumstances as described
above:





     (i) at any time or from time to time, without notice to the Guarantors, the time for
any performance of or compliance with any of the Guaranteed Obligations shall be extended,
or such performance or compliance shall be waived;




     (ii) any of the acts mentioned in any of the provisions of this Agreement or the Notes,
if any, or any other agreement or instrument referred to herein or therein shall be done or
omitted;



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     (iii) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of
the Guaranteed Obligations shall be amended in any respect, or any right under the Loan
Documents or any other agreement or instrument referred to herein or therein shall be
amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations
or any security therefor shall be released or exchanged in whole or in part or otherwise
dealt with;




     (iv) any Lien or security interest granted to, or in favor of, Issuing Bank or any
Lender or Agent as security for any of the Guaranteed Obligations shall fail to be
perfected; or




     (v) the release of any other Guarantor pursuant to Section 7.09.



          The Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that any Secured Party exhaust any right, power or
remedy or proceed against Borrower under this Agreement or the Notes, if any, or any other
agreement or instrument referred to herein or therein, or against any other person under any other
guarantee of, or security for, any of the Guaranteed Obligations. The Guarantors waive any and all
notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by any Secured Party upon this Guarantee or
acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all
dealings between Borrower and the Secured Parties shall likewise be conclusively presumed to have
been had or consummated in reliance upon this Guarantee. This Guarantee shall be construed as a
continuing, absolute, irrevocable and unconditional guarantee of payment without regard to any
right of offset with respect to the Guaranteed Obligations at any time or from time to time held by
Secured Parties, and the obligations and liabilities of the Guarantors hereunder shall not be
conditioned or contingent upon the pursuit by the Secured Parties or any other person at any time
of any right or remedy against Borrower or against any other person which may be or become liable
in respect of all or any part of the Guaranteed Obligations or against any collateral security or
guarantee therefor or right of offset with respect thereto. This Guarantee shall remain in full
force and effect and be binding in accordance with and to the extent of its terms upon the
Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Lenders,
and their respective successors and assigns, notwithstanding that from time to time during the term
of this Agreement there may be no Guaranteed Obligations outstanding.




          SECTION 7.03 Reinstatement. The obligations of the Guarantors under this Article VII shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf of Borrower or
other Loan Party in respect of the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings
in bankruptcy or reorganization or otherwise.




          SECTION 7.04 Subrogation; Subordination. Each Guarantor hereby agrees that until the indefeasible payment and satisfaction in full
in cash of all Guaranteed Obligations and the expiration or termination of the Commitments of the
Lenders under this Agreement it shall waive any claim and shall not exercise any right or remedy,
direct or indirect, arising by reason of any performance by it of its guarantee in
Section 7.01, whether by subrogation or otherwise, against Borrower or any other Guarantor
of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations. Any
Indebtedness of any Loan Party permitted
pursuant to Section 6.01(d) shall be subordinated to such Loan Party’s Secured
Obligations in the manner set forth in the Intercompany Note evidencing such Indebtedness.




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          SECTION 7.05 Remedies. The Guarantors jointly and severally agree that, as between the Guarantors and the Lenders,
the obligations of Borrower under this Agreement and the Notes, if any, may be declared to be
forthwith due and payable as provided in Section 8.01 (and shall be deemed to have become
automatically due and payable in the circumstances provided in Section 8.01) for purposes
of Section 7.01, notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as against Borrower
and that, in the event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable by Borrower) shall
forthwith become due and payable by the Guarantors for purposes of Section 7.01.




          SECTION 7.06 Instrument for the Payment of Money. Each Guarantor hereby acknowledges that the guarantee in this Article VII
constitutes an instrument for the payment of money, and consents and agrees that any Lender or
Agent, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys
due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.




          SECTION 7.07 Continuing Guarantee. The guarantee in this Article VII is a continuing guarantee of payment, and shall
apply to all Guaranteed Obligations whenever arising.




          SECTION 7.08 General Limitation on Guarantee Obligations. In any action or proceeding involving any state corporate limited partnership or limited
liability company law, or any applicable state, federal or foreign bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally, if the obligations of any
Guarantor under Section 7.01 would otherwise be held or determined to be void, voidable,
invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the
amount of its liability under Section 7.01, then, notwithstanding any other provision to
the contrary, the amount of such liability shall, without any further action by such Guarantor, any
Loan Party or any other person, be automatically limited and reduced to the highest amount (after
giving effect to the right of contribution established in Section 7.10) that is valid and
enforceable and not subordinated to the claims of other creditors as determined in such action or
proceeding.




          SECTION 7.09 Release of Guarantors. If, in compliance with the terms and provisions of the Loan Documents, all or substantially
all of the Equity Interests or property of any Guarantor are sold or otherwise transferred (a
“Transferred Guarantor”) to a person or persons, none of which is Borrower or a Subsidiary, such
Transferred Guarantor shall, upon the consummation of such sale or transfer, be automatically
released from its obligations under this Agreement (including under Section 10.03 hereof)
and its obligations to pledge and grant any Collateral owned by it pursuant to any Security
Document and, in the case of a sale of all or substantially all of the Equity Interests of the
Transferred Guarantor, the pledge of such Equity Interests to the Collateral Agent pursuant to the
Security Agreements shall be automatically released, and,
so long as Borrower shall have provided the Agents such certifications or documents as any
Agent shall reasonably request, the Collateral Agent shall take such actions as are necessary to
effect each release described in this Section 7.09 in accordance with the relevant
provisions of the Security Documents, so long as Borrower shall have provided the Agents such
certifications or documents as any Agent shall reasonably request in order to demonstrate
compliance with this Agreement; provided that such Guarantor is also released from its obligations
under the Senior Unsecured Note Purchase Documents on the same terms.




          SECTION 7.10 Right of Contribution. Each Subsidiary Guarantor hereby agrees that to the extent that a Subsidiary Guarantor
shall have paid more than its proportionate share of any payment made hereunder, such Subsidiary
Guarantor shall be entitled to seek and receive contribution


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from and against any other Subsidiary
Guarantor hereunder which has not paid its proportionate share of such payment. Each Subsidiary
Guarantor’s right of contribution shall be subject to the terms and conditions of Section
7.04. The provisions of this Section 7.10 shall in no respect limit the obligations
and liabilities of any Subsidiary Guarantor to the Administrative Agent, the Issuing Bank and the
Lenders, and each Subsidiary Guarantor shall remain liable to the Administrative Agent, the Issuing
Bank, and the Lenders for the full amount guaranteed by such Subsidiary Guarantor hereunder.




ARTICLE VIII




EVENTS OF DEFAULT




          SECTION 8.01 Events of Default. Upon the occurrence and during the continuance of the following events (“Events of
Default”):





     (a) default shall be made in the payment of any principal of any Loan or any
Reimbursement Obligation when and as the same shall become due and payable, whether at the
due date thereof (including a Tranche B Loan Repayment Date) or at a date fixed for
prepayment (whether voluntary or mandatory) thereof or by acceleration thereof or otherwise;




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




     (c) any representation or warranty made or deemed made in or in connection with any
Loan Document or the borrowings or issuances of Letters of Credit hereunder, 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 Loan
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 Company of any
covenant, condition or agreement contained in Section 5.02, 5.03(a) or
5.08 or in Article VI;




     (e) default shall be made in the due observance or performance by any Company of any
covenant, condition or agreement contained in any Loan 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 Lender to Borrower;




     (f) any Company shall (i) fail to pay any principal or interest, regardless of amount,
due in respect of any Indebtedness (other than the Obligations), 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 such Indebtedness 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, other than in the case of the Senior



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Unsecured Term Loans, 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 Companies 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 Company, or
of a substantial part of the property of any Company, under Title 11 of the U.S. 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 Company or for a
substantial part of the property of any Company; or (iii) the winding-up or liquidation of
any Company; 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 Company shall (i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or
similar law; (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in clause (g)
above; (iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for any Company or for a substantial part of
the property of any Company; (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 Company 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 Company 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 a Company;




     (k) any security interest and Lien (other than a Lien on Collateral having a value of
less than $1.0 million and other than as a result of a Permitted Lien) purported to be
created by any Security Document shall cease to be in full force and effect, or shall cease
to give the Collateral Agent, for the benefit of the Secured Parties, the Liens, rights,
powers and privileges purported to be created and granted under such Security Document
(including a perfected first priority security interest in and Lien on all of the Collateral
thereunder (except as otherwise expressly provided in such Security Document)) in favor of
the Collateral Agent, or shall be asserted by Borrower or any other Loan Party not to be a
valid, perfected, first priority (except as otherwise expressly provided in this Agreement
or such Security Document) security interest in or Lien on the Collateral covered thereby;



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     (l) any Loan 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 Loan 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 Loan Party shall repudiate or deny any
portion of its liability or obligation for the Obligations;




     (m) there shall have occurred a Change in Control; or




     (n) any Company 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;


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




          SECTION 8.02 Rescission. If at any time after termination of the Commitments or acceleration of the maturity of the
Loans, Borrower shall pay all arrears of interest and all payments on account of principal of the
Loans and Reimbursement Obligations owing by it that shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law, on overdue interest,
at the rates specified herein) and all Defaults (other than non-payment of principal of and accrued
interest on the Loans due and payable solely by virtue of acceleration) shall be remedied or waived
pursuant to Section 10.02, then upon the written consent of the Required Lenders and
written notice to Borrower, the termination of the Commitments or the acceleration and their
consequences may be rescinded and annulled; but such action shall not affect any subsequent Default
or impair any right or remedy consequent thereon. The provisions of the preceding sentence are
intended merely to bind the Lenders and the Issuing Bank to a decision that may be made at the
election of the Required Lenders, and such provisions are not intended to benefit Borrower and do
not give Borrower the right to require the Lenders to rescind or annul any acceleration hereunder,
even if the conditions set forth herein are met.




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          SECTION 8.03 Application of Proceeds. The proceeds received by the Collateral Agent in respect of any sale of, collection from or
other realization upon all or any part of the Collateral pursuant to the exercise by the Collateral
Agent of its remedies shall be applied, in full or in part, together with any other sums then held
by the Collateral Agent pursuant to this Agreement, promptly by the Collateral Agent as follows:





     (a) First, to the payment of all reasonable costs and expenses, fees, commissions and
taxes of such sale, collection or other realization including compensation to the Collateral
Agent and its agents and counsel, and all expenses, liabilities and advances made or
incurred by the Collateral Agent in connection therewith and all amounts for which the
Collateral Agent is entitled to indemnification (for losses actually suffered) pursuant to
the provisions of any Loan Document, together with interest on each such amount at the
highest rate then in effect under this Agreement from and after the date such amount is due,
owing or unpaid until paid in full;




     (b) Second, to the payment of all other reasonable costs and expenses of such sale,
collection or other realization including compensation to the other Secured Parties and
their agents and counsel and all costs, liabilities and advances made or incurred by the
other Secured Parties in connection therewith, together with interest on each such amount at
the highest rate then in effect under this Agreement from and after the date such amount is
due, owing or unpaid until paid in full;




     (c) Third, without duplication of amounts applied pursuant to clauses (a) and (b)
above, to the indefeasible payment in full in cash, pro rata, of interest and other amounts
constituting Obligations (other than principal, Reimbursement Obligations and obligations to
cash collateralize Letters of Credit) and any fees, premiums and scheduled periodic payments
due under Hedging Agreements or Treasury Services Agreements constituting Secured
Obligations and any interest accrued thereon, in each case equally and ratably in accordance
with the respective amounts thereof then due and owing;




     (d) Fourth, to the indefeasible payment in full in cash, pro rata, of principal amount
of the Obligations and any premium thereon (including Reimbursement Obligations and
obligations to cash collateralize Letters of Credit) and any breakage, termination or other
payments under Hedging Agreements and Treasury Services Agreements constituting Secured
Obligations and any interest accrued thereon; and




     (e) Fifth, the balance, if any, to the person lawfully entitled thereto (including the
applicable Loan Party or its successors or assigns) or as a court of competent jurisdiction
may direct.



          In the event that any such proceeds are insufficient to pay in full the items described in
clauses (a) through (e) of this Section 8.03, the Loan Parties shall remain liable, jointly
and severally, for any deficiency.




          SECTION 8.04 Certain Cure Rights. Notwithstanding anything to the contrary contained in Section 8.01, in the event
that Borrower fails to comply with the financial covenant contained in Section 6.10,
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 Borrower 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



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contributed to the common equity capital of Borrower (collectively, the “Cure Right”), and upon
the receipt by Borrower 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, Borrower shall then be in
compliance with the requirements of such financial covenant, Borrower 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 Loan
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
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 Borrower shall have delivered a Notice of Intent to Cure,
in accordance with Section 5.01(k), then (subject to the preceding sentence) the right of
the Lenders to declare the Loans due and payable and to terminate the Commitments pursuant to
Section 8.01 solely as a result of such Default
under Section 6.10 shall be suspended for a period of 10 Business days following the date
of delivery of such Notice of Intent to Cure.




ARTICLE IX




THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT




          SECTION 9.01 Appointment and Authority. Each of the Lenders and the Issuing Bank hereby irrevocably appoints Barclays Bank PLC, to
act on its behalf as the Administrative Agent and the Collateral Agent hereunder and under the
other Loan Documents and authorizes such Agents to take such actions on its behalf and to exercise
such powers as are delegated to such Agents by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing
Bank, and neither Borrower nor any other Loan Party shall have rights as a third party beneficiary
of any of such provisions.




          SECTION 9.02 Rights as a Lender. Each person serving as an Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent
and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the
context otherwise requires, include each person serving as an Agent hereunder in its individual
capacity. Such person and its Affiliates may accept deposits from, lend money



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to, act as the
financial advisor or in any other advisory capacity for and generally engage in any kind of
business with Borrower or any Subsidiary or other Affiliate thereof as if such person were not an
Agent hereunder and without any duty to account therefor to the Lenders.




          SECTION 9.03 Exculpatory Provisions. No Agent shall have any duties or obligations except those expressly set forth herein
and in the other Loan Documents. Without limiting the generality of the foregoing, no Agent:





     (i) shall be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;




     (ii) shall have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other
Loan Documents that such Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents); provided that such Agent shall not be
required to take any action that, in its judgment or the judgment of its counsel, may expose
such Agent to liability or that is contrary to any Loan Document or applicable Requirements
of Law; and




     (iii) shall, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to Borrower or any of its Affiliates that is communicated to or obtained by the
person serving as such Agent or any of its Affiliates in any capacity.


No Agent shall be liable for any action taken or not taken by it (x) with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Section 10.02) or (y) in the absence of its own gross negligence or willful
misconduct. No Agent shall be deemed to have knowledge of any Default unless and until notice
describing such Default is given to such Agent by Borrower, a Lender or the Issuing Bank.




          No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to such Agent. Without limiting the
generality of the foregoing, the use of the term “agent” in this Agreement with reference to the
Administrative Agent or the Collateral Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable law. Instead,
such term us used merely as a matter of market custom and is intended to create or reflect only an
administrative relationship between independent contracting parties.




          SECTION 9.04 Reliance by Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise



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authenticated by the proper
person. Each Agent also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the making of a Loan, or the
issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender
or the Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to
such Lender or the Issuing Bank unless the Administrative Agent shall have received notice to the
contrary from such Lender or the Issuing Bank prior to the making of such Loan or the issuance of
such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.




          SECTION 9.05 Delegation of Duties. Each Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through, or delegate any and all such rights and
powers to, any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of this Article shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Agent.




          SECTION 9.06 Resignation of Agent. Each Agent may at any time give notice of its resignation to the Lenders, the Issuing Bank
and Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with Borrower, to appoint a successor, which shall be a bank with an office
in the United States, or an Affiliate of any such bank with an office in the United States. If no
such successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its resignation, then the
retiring Agent may on behalf of the Lenders and the Issuing Bank, appoint a successor Agent meeting
the qualifications set forth above provided that if the Agent shall notify Borrower and the Lenders
that no qualifying person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (1) the retiring Agent shall be discharged from
its duties and obligations hereunder and under the other Loan Documents (except that in the case of
any collateral security held by the Collateral Agent on behalf of the Lenders or the Issuing Bank
under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such
collateral security as nominee until such time as a successor Collateral Agent is appointed) and
(2) all payments, communications and determinations provided to be made by, to or through an Agent
shall instead be made by or to each Lender and the Issuing Bank directly, until such time as the
Required Lenders appoint a successor Agent as provided for above in this paragraph. Upon the
acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
paragraph). The fees payable by Borrower to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this
Article IX and Section 10.03 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Agent was acting as Agent.




          SECTION 9.07 Non-Reliance on Agent and Other Lenders. Each Lender and the Issuing Bank acknowledges that it has, independently and without
reliance upon any Agent or any other



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Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender further represents and warrants that it has reviewed the Confidential Information Memorandum
and each other document made available to it on the Platform in connection with this Agreement and
has acknowledged and accepted the terms and conditions applicable to the recipients thereof. Each
Lender and the Issuing Bank also acknowledges that it will, independently and without reliance upon
any Agent or any other Lender and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.




          SECTION 9.08 No Other Duties, etc. Anything herein to the contrary notwithstanding, none of the Bookmanagers, Arrangers,
Syndication Agents or Documentation Agents listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, the Collateral Agent, a Lender or the Issuing
Bank hereunder.




ARTICLE X




MISCELLANEOUS




          SECTION 10.01 Notices.




          (a) Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopier as follows:





	 	(i)	 	if to any Loan Party, to Borrower at:


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;







	 	
with a copy (which shall not constitute notice) 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;





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	 	(ii)	 	if to the Administrative Agent, the Collateral Agent or Issuing Bank, to it at:


Barclays Bank PLC

200 Park Avenue

New York, NY 10166

Attention: David Barton

Facsimile: (212) 412-7600

Telephone: (212) 412-7693

E-mail: davide.barton@barcap.com; and





          (iii) if to a Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire.



Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to
have been given at the opening of business on the next business day for the recipient). Notices
delivered through electronic communications to the extent provided in paragraph (b) below, shall be
effective as provided in said paragraph (b).




          (b) Electronic Communications. Notices and other communications to the Lenders and
the Issuing Bank hereunder may (subject to Section 10.01(d)) be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent; provided that the foregoing shall not apply to
notices to any Lender or the Issuing Bank pursuant to Article II if such Lender or the
Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The Administrative Agent, the
Collateral Agent or Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it
(including as set forth in Section 10.01(d)); provided that approval of such procedures may
be limited to particular notices or communications.




          Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement); provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.




          (c) Change of Address, etc. Any party hereto may change its address or telecopier
number for notices and other communications hereunder by notice to the other parties hereto.




          (d) Posting. Each Loan Party hereby agrees that it will provide to the Administrative
Agent all information, documents and other materials that it is obligated to furnish to the
Administrative Agent pursuant to this Agreement and any other Loan Document, including all notices,
requests, financial statements, financial and other reports, certificates and other information
materials, but excluding any



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such communication that (i) relates to a request for a new, or a
conversion of an existing, Borrowing or other extension of credit (including any election of an
interest rate or interest period relating thereto), (ii) relates to the payment of any principal or
other amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice
of any Default under this Agreement or (iv) is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit
hereunder (all such non-excluded communications, collectively, the “Communications”), by
transmitting the Communications in an electronic/soft medium in a format reasonably acceptable to
the Administrative Agent at davide.barton@barcap.com or at such other e-mail address(es) provided
to Borrower from time to time or in such other form, including hard copy delivery thereof, as the
Administrative Agent shall require. In addition, each Loan Party agrees to continue to provide the
Communications to the Administrative Agent in the manner specified in this Agreement or any other
Loan Document or in such other form, including hard copy delivery thereof, as the Administrative
Agent shall require. Nothing in this Section 10.01 shall prejudice the right of the
Agents, any Lender or any Loan Party to give any notice or other communication pursuant to this
Agreement or any other Loan Document in any other manner specified in this Agreement or any other
Loan Document or as any such Agent shall require.




          To the extent consented to by the Administrative Agent in writing from time to time,
Administrative Agent agrees that receipt of the Communications by the Administrative Agent at its
e-mail address(es) set forth above shall constitute effective delivery of the Communications to the
Administrative Agent for purposes of the Loan Documents; provided that Borrower shall also deliver
to the Administrative Agent an executed original of each Compliance Certificate required to be
delivered hereunder.




          Each Loan Party further agrees that Administrative Agent may make the Communications available
to the Lenders by posting the Communications on Intralinks or a substantially similar electronic
transmission system (the “Platform”). The Platform is provided “as is” and “as available.” The
Agents do not warrant the accuracy or completeness of the Communications, or the adequacy of the
Platform and expressly disclaim liability for errors or omissions in the communications. No
warranty of any kind, express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by any Agent in connection with the
Communications or the Platform. In no event shall the Administrative Agent or any of its Related
Parties have any liability to the Loan Parties, any Lender or any other person for damages of any
kind, including direct or indirect, special, incidental or consequential damages, losses or
expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the
Administrative Agent’s transmission of communications through the Internet, except to the extent
the liability of such person is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from such person’s gross negligence or willful misconduct.




          SECTION 10.02 Waivers; Amendment.




          (a) Generally. No failure or delay by any Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of each Agent, the
Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision
of any Loan Document or



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consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by this Section 10.02, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether any Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at the time. No notice
or demand on Borrower in any case shall entitle Borrower to any other or further notice or demand
in similar or other circumstances.




          (b) Required Consents. Subject to the terms of Section 10.02(c), (d)
and (e), neither this Agreement nor any other Loan Document nor any provision hereof or
thereof may be waived, amended, supplemented or modified except, in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by Borrower and the Administrative
Agent or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent, the Collateral Agent (in the case of any Security
Document) and the Loan Party or Loan Parties
that are party thereto, in each case with the written consent of the Required Lenders;
provided that no such agreement shall be effective if the effect thereof would:





     (i) increase the Commitment of any Lender without the written consent of such Lender
(it being understood that no amendment, modification, termination, waiver or consent with
respect to any condition precedent, covenant or Default shall constitute an increase in the
Commitment of any Lender);




     (ii) reduce the principal amount or premium of any Loan or LC Disbursement or reduce
the rate of interest thereon (other than interest pursuant to Section 2.06(c)), or
reduce any Fees payable hereunder, or change the form or currency of payment of any
Obligation, without the written consent of each Lender directly affected thereby (it being
understood that any amendment or modification to the financial definitions in this Agreement
shall not constitute a reduction in the rate of interest for purposes of this clause (ii));




     (iii) (A) change the scheduled final maturity of any Loan, or any scheduled date of
payment of or the installment otherwise due on the principal amount of any Tranche B Loan
under Section 2.09, (B) postpone the date for payment of any Reimbursement
Obligation or any interest or fees payable hereunder, (C) change the amount of, waive or
excuse any such payment (other than waiver of any increase in the interest rate pursuant to
Section 2.06(c)), or (D) postpone the scheduled date of expiration of any Commitment
or any Letter of Credit beyond the Revolving Maturity Date, in any case, without the written
consent of each Lender directly affected thereby;




     (iv) increase the maximum duration of Interest Periods hereunder, without the written
consent of each Lender directly affected thereby;




     (v) permit the assignment or delegation by Borrower of any of its rights or obligations
under any Loan Document, without the written consent of each Lender;




     (vi) release Holdings or all or substantially all of the Subsidiary Guarantors from
their Guarantee (except as expressly provided in Article VII), or limit their
liability in respect of such Guarantee, without the written consent of each Lender;



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          (vii) release all or substantially all of the Collateral from the Liens of the Security
Documents or alter the relative priorities of the Secured Obligations entitled to the Liens
of the Security Documents, in each case without the written consent of each Lender (it being
understood that additional Classes of Loans pursuant to Section 2.19 or consented to
by the Required Lenders may be equally and ratably secured by the Collateral with the then
existing Secured Obligations under the Security Documents);




          (viii) change Section 2.14(b), (c) or (d) in a manner that
would alter the pro rata sharing of payments or setoffs required thereby or any other
provision in a manner that would alter the pro rata allocation among the Lenders of Loan
disbursements, including the requirements of Sections 2.02(a), 2.17(d) and
2.18(d), without the written consent of each Lender directly affected thereby;




          (ix) change any provision of this Section 10.02(b) or Section 10.02(c)
or (d), without the written consent of each Lender directly affected thereby (except
for additional restrictions on
amendments or waivers for the benefit of Lenders of additional Classes of Loans
pursuant to Section 2.19 or consented to by the Required Lenders);




          (x) change the percentage set forth in the definition of “Required Lenders,” “Required
Class Lenders,” “Required Revolving Lenders” or any other provision of any Loan Document
(including this Section) specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any determination or
grant any consent thereunder, without the written consent of each Lender (or each Lender of
such Class, as the case may be), other than to increase such percentage or number or to give
any additional Lender or group of Lenders such right to waive, amend or modify or make any
such determination or grant any such consent;




          (xi) change the application of prepayments as among or between Classes under
Section 2.10(i), without the written consent of the Required Class Lenders of each
Class that is being allocated a lesser prepayment as a result thereof (it being understood
that the Required Lenders may waive, in whole or in part, any prepayment so long as the
application, as between Classes, of any portion of such prepayment that is still required to
be made is not changed and, if additional Classes of term loans under this Agreement
pursuant to Section 2.19 or consented to by the Required Lenders are made, such new
Incremental Term Loans may be included on a pro rata basis in the various prepayments
required pursuant to Section 2.10(i));




          (xii) change or waive the application of prepayments of Tranche B Loans set forth in
Section 2.10(i) to the remaining scheduled amortization payments to be made thereon
under Section 2.09, without the written consent of the Required Class Lenders;




          (xiii) subordinate the Obligations to any other obligation;




          (xiv) change or waive any provision of Article X as the same applies to any
Agent, or any other provision hereof as the same applies to the rights or obligations of any
Agent, in each case without the written consent of such Agent;




          (xv) change or waive any obligation of the Lenders relating to the issuance of or
purchase of participations in Letters of Credit, without the written consent of the
Administrative Agent and the Issuing Bank; or




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          (xvi) expressly change or waive any condition precedent in Section 4.02 to any
Revolving Borrowing without the written consent of the Required Revolving Lenders;



provided, further, that any waiver, amendment or modification prior to the completion of the
primary syndication of the Commitments and Loans (as determined by the Arrangers) may not be
effected without the written consent of the Arrangers.




          (c) Collateral. Without the consent of any other person, the applicable Loan Party or
Parties and the Administrative Agent and/or Collateral Agent may (in its or their respective sole
discretion, or shall, to the extent required by any Loan Document) enter into any amendment or
waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting,
perfection, protection, expansion or enhancement of any security interest in any Collateral or
additional property to become Collateral for the benefit of the Secured Parties, or as required by
local law to give effect to, or
protect any security interest for the benefit of the Secured Parties, in any property or so
that the security interests therein comply with applicable Requirements of Law.




          (d) Dissenting Lenders. If, in connection with any proposed change, waiver, discharge
or termination of the provisions of this Agreement as contemplated by Section 10.02(b), the
consent of the Required Lenders is obtained but the consent of one or more of such other Lenders
whose consent is required is not obtained, then Borrower shall have the right to replace all, but
not less than all, of such non-consenting Lender or Lenders (so long as all non-consenting Lenders
are so replaced) with one or more persons pursuant to Section 2.16 so long as at the time
of such replacement each such new Lender consents to the proposed change, waiver, discharge or
termination. Each Lender agrees that, if Borrower elects to replace such Lender in accordance with
this Section, it shall promptly execute and deliver to the Administrative Agent an Assignment and
Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent any
Note (if Notes have been issued in respect of such Lender’s Loans) subject to such Assignment and
Assumption; provided that the failure of any such non-consenting Lender to execute an Assignment
and Assumption shall not render such sale and purchase (and the corresponding assignment) invalid
and such assignment shall be recorded in the Register.




          (e) Refinanced Term Loans. In addition, notwithstanding the foregoing, this Agreement
may be amended with the written consent of the Administrative Agent, Holdings, Borrower and the
Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing
of all outstanding Tranche B Loans (“Refinanced Term Loans”) with a replacement “B” term loan
tranche hereunder which shall constitute Tranche B Loans hereunder (“Replacement Term Loans”);
provided that (a) the aggregate principal amount of Replacement Term Loans shall not exceed the
aggregate principal amount of Refinanced Term Loans, (b) the Applicable Margin for Replacement Term
Loans shall not be higher than the Applicable Margin for Refinanced Term Loans, (c) the weighted
average life to maturity of Replacement Term Loans shall not be shorter than the weighted average
life to maturity of Refinanced Term Loans at the time of such refinancing and (d) all other terms
applicable to Replacement Term Loans shall be substantially identical to, or less favorable to the
Lenders providing Replacement Term Loans than, those applicable to Refinanced Term Loans, except to
the extent necessary to provide for covenants and other terms applicable to any period after the
Final Maturity Date in effect immediately prior to such refinancing; provided further that the
Lenders providing the Replacement Term Loans or Borrower shall pay to the Lenders of the Refinanced
Term Loans in immediately available funds on the date of such assignment the principal of and
interest accrued to the date of payment on the Refinanced Term Loans made by such Lenders and all
commitment fees and other fees owed to such Lenders hereunder and all other amounts accrued for
such Lender’s account or owed to them hereunder (including, without limitation, any Commitment
Fees).




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          SECTION 10.03 Expenses; Indemnity; Damage Waiver.




          (a) Costs and Expenses. Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent, the Collateral Agent and their respective Affiliates
(including the reasonable fees, charges and disbursements of counsel for the Administrative Agent
and/or the Collateral Agent) in connection with the syndication of the credit facilities provided
for herein (including the obtaining and maintaining of CUSIP numbers for the Loans), the
preparation, negotiation, execution, delivery and administration of this Agreement and the other
Loan Documents or any amendment, amendment and restatement, modification or waiver of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), including in
connection with post-closing searches to confirm that security filings and recordations have
been properly made and including any costs and expenses of the service provider referred to in
Section 9.03, (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) all out-of-pocket expenses incurred by the Administrative Agent, the
Collateral Agent, any Lender or the Issuing Bank (including the fees, charges and disbursements of
any counsel for the Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank), in
connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section 10.03, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of
such Loans or Letters of Credit and (iv) all documentary and similar taxes and charges in respect
of the Loan Documents; provided that in the case of clause (A) or (B) Borrower shall only be
obligated to pay for one (1) legal counsel for all Lenders.




          (b) Indemnification by Borrower. Borrower shall indemnify the Administrative Agent
(and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof) each Lender and the
Issuing Bank, and each Related Party of any of the foregoing persons (each such person being called
an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees, charges and disbursements of any
counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any
third party or by Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan Document, or any
amendment, amendment and restatement, modification or waiver of the provisions hereof or thereof,
or any agreement or instrument contemplated hereby or thereby, the performance by the parties
hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence
or Release or threatened Release of Hazardous Materials on, at, under or from any property owned,
leased or operated by any Company at any time, or any Environmental Claim related in any way to any
Company, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a
third party or by Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by Borrower
or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any



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other Loan Document, if Borrower or such Loan Party has obtained
a final and nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction.




          (c) Reimbursement by Lenders. To the extent that Borrower for any reason fails to
indefeasibly pay any amount required under paragraph (a) or (b) of this Section 10.03 to be
paid by it to the Administrative Agent (or any sub-agent thereof), the Collateral Agent, the
Issuing Bank or any Related Party of any of the foregoing, each Lender severally agrees to pay to
the Administrative Agent (or any such sub-agent), the Collateral Agent (or any sub-agent thereof),
the Issuing Bank or such Related Party, as the case may be, such Lender’s pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the
Collateral Agent (or any sub-agent thereof) or the Issuing Bank in its capacity as such, or against
any Related Party of any of the foregoing acting for the Administrative Agent (or any such
sub-agent), the Collateral Agent (or any sub-agent thereof) or Issuing Bank in connection with such
capacity. The obligations of the Lenders under this paragraph (c) are subject to the provisions of
Section 2.14. For purposes hereof, a Lender’s “pro rata share” shall be determined based
upon its share of the sum of the total Revolving Exposure, outstanding Tranche B Loans and unused
Commitments at the time.




          (d) Waiver of Consequential Damages, etc. To the fullest extent permitted by
applicable Requirements of Law, no Loan Party shall assert, and each Loan Party hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of
the proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.




          (e) Payments. All amounts due under this Section shall be payable not later than 10
Business Days after Borrower has received a reasonable written demand therefore.




          SECTION 10.04 Successors and Assigns.




          (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent, the
Collateral Agent, the Issuing Lender and each Lender and no Lender may assign or otherwise transfer
any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with
the provisions of paragraph (b) of this Section 10.04, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section 10.04 or (iii) by way of
pledge or assignment of a security interest subject to the restrictions of paragraph (f) of this
Section (and any other attempted assignment or transfer by Borrower or any Lender shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
person (other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in paragraph (d) of this Section and, to the extent expressly
contemplated hereby, the other Indemnitees) any legal or equitable right, remedy or claim under or
by reason of this Agreement.




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          (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that





     (i) except in the case of any assignment made in connection with the primary
syndication of the Commitment and Loans by the Arrangers or an assignment of the entire
remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it
or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund
with
respect to a Lender, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the applicable Commitment is not then in
effect, the principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified
in the Assignment and Assumption, as of the Trade Date) shall not be less than $5.0 million,
in the case of any assignment in respect of Revolving Loans and/or Revolving Commitments, or
$1.0 million, in the case of any assignment in respect of Tranche B Loan Commitments, unless
each of the Administrative Agent and, so long as no Default has occurred and is continuing,
Borrower otherwise consent (each such consent not to be unreasonably withheld or delayed);




     (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Loan or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender
from assigning all or a portion of its rights and obligations among separate tranches on a
non-pro rata basis; and




     (iii) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section 10.04, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but
shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.15
and 10.03 with respect to facts and circumstances occurring prior to the effective date of
such assignment. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
paragraph (d) of this Section 10.04.




          (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
Borrower, shall maintain at one of its offices in New York, New York (or such other offices as
designated by the Administrative Agent) a copy of each Assignment and Assumption delivered to it
and a register for the recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amounts of the Loans and LC Disbursements owing to, each Lender pursuant to the
terms hereof from


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time to time (the “Register”). The entries in the Register shall be conclusive,
and Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by Borrower, the Issuing Bank, the Collateral Agent and any Lender (with
respect to its own interest only), at any reasonable time and from time to time upon reasonable
prior notice.




          (d) Participations. Any Lender may at any time, without the consent of, or notice to,
Borrower, the Administrative Agent or the Issuing Bank sell participations to any person (other
than a natural person or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and
(iii) Borrower, the Administrative Agent and the Lenders and Issuing Bank shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement.




          Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in clause (i), (ii) or (iii)
of the first proviso to Section 10.02(b) that affects such Participant. Subject to
paragraph (e) of this Section, Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.12, 2.13 and 2.15 (subject to the requirements of
those Sections) to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.14 as though it were a
Lender.




          (e) Limitations on Participant Rights. A Participant shall not be entitled to receive
any greater payment under Sections 2.12, 2.13 and 2.15 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with Borrower’s prior
written consent or the right to a greater payment results from a change in law after the
Participant became a Participant.




          (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that
no such pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto. In the case of any
Lender that is a fund that invests in bank loans, such Lender may, without the consent of Borrower
or the Administrative Agent, collaterally assign or pledge all or any portion of its rights under
this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a
Lender under this Agreement, to any holder of, trustee for, or any other representative of holders
of, obligations owed or securities issued, by such fund, as security for such obligations or
securities.




          (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal



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effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable Requirement of Law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state
laws based on the Uniform Electronic Transactions Act.




          SECTION 10.05 Survival of Agreement. All covenants, agreements, representations and warranties made by the Loan Parties in the
Loan Documents and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon
by the other parties hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made
by any such other party or on its behalf and notwithstanding that the Agents, the Issuing Bank or
any Lender may have had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force and effect as long
as the principal of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long
as the Commitments have not expired or terminated. The provisions of Sections 2.12,
2.14, 2.15 and Article X (other than Section 10.12) shall survive
and remain in full force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the payment of the Reimbursement Obligations, the expiration or
termination of the Letters of Credit and the Commitments or the termination of this Agreement or
any provision hereof.




          SECTION 10.06 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement and the other Loan Documents, and any
separate letter agreements with respect to fees payable to the Administrative Agent, constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.




          SECTION 10.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and enforceability of the
remaining provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.




          SECTION 10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, the Issuing
Bank, and each of their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable Requirements of Law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final, in whatever currency)
at any time held and other obligations (in whatever currency) at any time owing by such Lender, the
Issuing Bank or any such Affiliate to or for the credit or the account of Borrower or any other
Loan Party against any and all of the obligations of Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the Issuing Bank,
irrespective of whether or not such Lender or the Issuing Bank shall have made any demand under
this


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Agreement or any other Loan Document and although such obligations of Borrower or such Loan
Party may be contingent or unmatured or are owed to
a branch or office of such Lender or the Issuing Bank different from the branch or office
holding such deposit or obligated on such indebtedness. The rights of each Lender, the Issuing
Bank and their respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the Issuing Bank or their respective
Affiliates may have. Each Lender and the Issuing Bank agrees to notify Borrower and the
Administrative Agent promptly after any such setoff and application; provided that the failure to
give such notice shall not affect the validity of such setoff and application.




          SECTION 10.09 Governing Law; Jurisdiction; Consent to Service of Process.




          (a) Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York, without regard to conflicts of law principles that would
require the application of the laws of another jurisdiction.




          (b) Submission to Jurisdiction. Each Loan Party hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State court or, to the fullest extent permitted by applicable law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document against any Loan Party
or its properties in the courts of any jurisdiction.




          (c) Waiver of Venue. Each Loan Party hereby irrevocably and unconditionally waives,
to the fullest extent permitted by applicable Requirements of Law, any objection which it may now
or hereafter have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any other Loan Document in any court referred to in Section
10.09(b). Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by applicable Requirements of Law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.




          (d) Service of Process. Each party hereto irrevocably consents to service of process
in any action or proceeding arising out of or relating to any Loan Document, in the manner provided
for notices (other than telecopier) in Section 10.01. Nothing in this Agreement or any
other Loan Document will affect the right of any party hereto to serve process in any other manner
permitted by applicable Requirements of Law.




          SECTION 10.10 Waiver of Jury Trial. Each Loan Party hereby waives, to the fullest extent permitted by applicable Requirements
of Law, any right it may have to a trial by jury in any legal proceeding directly or indirectly
arising out of or relating to this Agreement, any other Loan Document or the transactions
contemplated
hereby (whether based on contract, tort or any other theory). Each party hereto (a) certifies
that no representative, agent or attorney of any other party has represented, expressly or
otherwise, that such other party would not, in the event of litigation, seek to enforce the




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foregoing waiver and (b) acknowledges that it and the other parties hereto have been induced to
enter into this Agreement by, among other things, the mutual waivers and certifications in this
Section.




          SECTION 10.11 Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.




          SECTION 10.12 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the Issuing Bank agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, advisors and other representatives (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 Governmental
Authority or regulatory authority (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by applicable Requirements of
Law or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection
with the exercise of any remedies hereunder or under any other Loan Document or any action or
proceeding relating to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same
as those of this Section 10.12, to (i) any assignee of or Participation in, or any
prospective assignee of or Participation in, any of its rights or obligations under this Agreement,
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to Borrower and its obligations or (iii) any rating agency for the purpose of obtaining a
credit rating applicable to any Lender, (g) with the written consent of Borrower or (h) to the
extent such Information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any Lender, the Issuing Bank or any
of their respective Affiliates on a nonconfidential basis from a source other than Borrower. For
purposes of this Section, “Information” means all information received from Borrower or any of its
Subsidiaries relating to Borrower or any of its Subsidiaries or any of their respective businesses,
other than any such information that is available to the Administrative Agent, any Lender or the
Issuing Bank on a nonconfidential basis prior to disclosure by Borrower or any of its Subsidiaries;
provided that, in the case of information received from Borrower or any of its Subsidiaries after
the date hereof, such information is clearly identified at the time of delivery as confidential.
Any person required to maintain the confidentiality of Information as provided in this Section
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.




          SECTION 10.13 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
Borrower, which
information includes the name, address and tax identification number of Borrower and other
information regarding Borrower that will allow such Lender or the Administrative Agent, as
applicable, to identify Borrower in accordance with the Act. This notice is given in accordance
with the requirements of the Act and is effective as to the Lenders and the Administrative Agent.




          SECTION 10.14 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate
applicable to any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable Requirements of Law (collectively,



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the “Charges”), shall
exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with applicable Requirements of
Law, the rate of interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and Charges payable to
such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such Lender.




          SECTION 10.15 Lender Addendum. Each Lender to become a party to this Agreement on the date hereof shall do so by
delivering to the Administrative Agent a Lender Addendum duly executed by such Lender, Borrower and
the Administrative Agent.




          SECTION 10.16 Obligations Absolute. To the fullest extent permitted by applicable Requirements of Law, all obligations of the
Loan Parties hereunder shall be absolute and unconditional irrespective of:





     (a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of any Loan Party;




     (b) any lack of validity or enforceability of any Loan Document or any other agreement
or instrument relating thereto against any Loan Party;




     (c) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations, or any other amendment or waiver of or any consent to any
departure from any Loan Document or any other agreement or instrument relating thereto;




     (d) any exchange, release or non-perfection of any other Collateral, or any release or



 amendment or waiver of or consent to any departure from any guarantee, for all or any
of the Obligations;




     (e) any exercise or non-exercise, or any waiver of any right, remedy, power or
privilege under or in respect hereof or any Loan Document; or




     (f) any other circumstances which might otherwise constitute a defense available to, or
a discharge of, the Loan Parties.



[Signature Pages Follow]





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




	 	 	 	 	 
	 	VSS-CAMBIUM MERGER CORP. (to be
merged with 
    and into
CAMBIUM LEARNING, INC.) 
	 
	 
	 	By:  	/s/
Scott J. Troeller	 
	 	 	Name: 	Scott J. Troeller	 
	 	 	Title: 	Vice-President	 
	 
	 	VSS-CAMBIUM HOLDINGS, LLC

 	 
	 	By:  	/s/
Scott J. Troeller	 
	 	 	Name: 	Scott J. Troeller	 
	 	 	Title:  	President	 
	 
	 	CAMBIUM LEARNING, INC.

 	 
	 	By:  	/s/
Scott J. Troeller	 
	 	 	Name: 	Scott J. Troeller	 
	 	 	Title:  	Vice-President	 
	 
	 	CAMBIUM LEARNING (NEW YORK), INC.

 	 
	 	By:  	/s/
Scott J. Troeller	 
	 	 	Name: 	Scott J. Troeller	 
	 	 	Title:  	Vice-President	 
	 
	 	SOPRIS WEST EDUCATIONAL SERVICES, INC.

 	 
	 	By:  	/s/
Scott J. Troeller	 
	 	 	Name: 	Scott J. Troeller	 
	 	 	Title:  	Vice-President	 




	 	 	 	 	 
	 	KURZWEIL EDUCATIONAL SYSTEMS, INC.

 	 
	 	By:  	/s/
Scott J. Troeller	 
	 	 	Name: 	Scott J. Troeller	 
	 	 	Title:  	Vice-President	 




 









 





	 	 	 	 	 
	 	INTELLITOOLS, INC.

 	 
	 	By:  	/s/
Scott J. Troeller	 
	 	 	Name: 	Scott J. Troeller	 
	 	 	Title:  	Vice-President	 



 









 





	 	 	 	 	 
	 	BARCLAYS BANK PLC, as Administrative Agent,

    Collateral Agent and a Lender

 	 
	 	By:  	/s/
David Barton	 
	 	 	Name: 	David Barton	 
	 	 	Title:  	Associate Director	 



 









 





	 	 	 	 	 
	 	CREDIT SUISSE SECURITIES (USA) LLC, as Co-

    Syndication Agent

 	 
	 	By:  	/s/
Lauri Sivaslian	 
	 	 	Name: 	Lauri Sivaslian	 
	 	 	Title:  	Managing Director	 



 









 





	 	 	 	 	 
	 	BNP PARIBAS, as
Co-Syndication Agent	 
	 
	 	By:  	/s/
Gregg Bonardi	 
	 	 	Name: 	Gregg Bonardi	 
	 	 	Title:  	Director	 
	 
	 	By:  	/s/
Ola Anderssen	 
	 	 	Name: 	Ola Anderssen	 
	 	 	Title:  	Director	 




 









 





	 	 	 	 	 
	 	TD SECURITIES (USA) LLC, as Documentation Agent

 	 
	 	By:  	/s/
Amy G. Josephson	 
	 	 	Name: 	Amy G. Josephson	 
	 	 	Title:  	Managing Director