exv10w1



 




Exhibit 10.1




EXECUTION
COPY


 




$240,000,000




CREDIT AGREEMENT




dated as of October 27, 2006,




among




TTM TECHNOLOGIES, INC.,

as Borrower,




THE GUARANTORS PARTY HERETO,

as Guarantors,




THE LENDERS PARTY HERETO




and




UBS SECURITIES LLC,

as Sole Lead Arranger and Sole Bookrunner,




BANK OF AMERICA, N.A.,

COMERICA BANK

and

SILICON VALLEY BANK,

as Co-Documentations Agents,




JPMORGAN CHASE BANK, N.A.,

as Syndication Agent,




and




UBS AG, STAMFORD BRANCH,

as Issuing Bank, Administrative Agent and Collateral Agent,




and




UBS LOAN FINANCE LLC,

as Swingline Lender




 






 









 














TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section
 



	 	 	 	Page
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 	 	 
	DEFINITIONS
	 	 	 	 
	 
	SECTION 1.01
	 	Defined Terms	 	 	2	 
	SECTION 1.02
	 	Classification of Loans and Borrowings	 	 	32	 
	SECTION 1.03
	 	Terms Generally	 	 	33	 
	SECTION 1.04
	 	Accounting Terms; GAAP	 	 	33	 
	SECTION 1.05
	 	Resolution of Drafting Ambiguities	 	 	33	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 	 	 
	THE CREDITS
	 	 	 	 
	 
	SECTION 2.01
	 	Commitments	 	 	33	 
	SECTION 2.02
	 	Loans	 	 	34	 
	SECTION 2.03
	 	Borrowing Procedure	 	 	35	 
	SECTION 2.04
	 	Evidence of Debt; Repayment of Loans	 	 	36	 
	SECTION 2.05
	 	Fees	 	 	36	 
	SECTION 2.06
	 	Interest on Loans	 	 	37	 
	SECTION 2.07
	 	Termination and Reduction of Commitments	 	 	38	 
	SECTION 2.08
	 	Interest Elections	 	 	39	 
	SECTION 2.09
	 	Amortization of Term Borrowings	 	 	40	 
	SECTION 2.10
	 	Optional and Mandatory Prepayments of Loans	 	 	40	 
	SECTION 2.11
	 	Alternate Rate of Interest	 	 	43	 
	SECTION 2.12
	 	Yield Protection	 	 	43	 
	SECTION 2.13
	 	Breakage Payments	 	 	45	 
	SECTION 2.14
	 	Payments Generally; Pro Rata Treatment; Sharing of Setoffs	 	 	45	 
	SECTION 2.15
	 	Taxes	 	 	47	 
	SECTION 2.16
	 	Mitigation Obligations; Replacement of Lenders	 	 	49	 
	SECTION 2.17
	 	Swingline Loans	 	 	50	 
	SECTION 2.18
	 	Letters of Credit	 	 	51	 
	SECTION 2.19
	 	Increase in Commitments	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	SECTION 3.01
	 	Organization; Powers	 	 	58	 
	SECTION 3.02
	 	Authorization; Enforceability	 	 	59	 
	SECTION 3.03
	 	No Conflicts	 	 	59	 
	SECTION 3.04
	 	Financial Statements; Projections	 	 	59	 
	SECTION 3.05
	 	Properties	 	 	60	 
	SECTION 3.06
	 	Intellectual Property	 	 	61	 
	SECTION 3.07
	 	Equity Interests and Subsidiaries	 	 	61	 






-i-









 






	 	 	 	 	 	 	 
	Section
 



	 	 	 	Page
	SECTION 3.08
	 	Litigation; Compliance with Laws	 	 	62	 
	SECTION 3.09
	 	Agreements	 	 	62	 
	SECTION 3.10
	 	Federal Reserve Regulations	 	 	63	 
	SECTION 3.11
	 	Investment Company Act	 	 	63	 
	SECTION 3.12
	 	Use of Proceeds	 	 	63	 
	SECTION 3.13
	 	Taxes	 	 	63	 
	SECTION 3.14
	 	No Material Misstatements	 	 	63	 
	SECTION 3.15
	 	Labor Matters	 	 	64	 
	SECTION 3.16
	 	Solvency	 	 	64	 
	SECTION 3.17
	 	Employee Benefit Plans	 	 	64	 
	SECTION 3.18
	 	Environmental Matters	 	 	65	 
	SECTION 3.19
	 	Insurance	 	 	66	 
	SECTION 3.20
	 	Security Documents	 	 	66	 
	SECTION 3.21
	 	Acquisition Documents; Representations and Warranties in Acquisition Agreement	 	 	67	 
	SECTION 3.22
	 	Anti-Terrorism Law	 	 	67	 
	SECTION 3.23
	 	Absence of Governmental Prohibition or Restraint	 	 	68	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 	 	 
	CONDITIONS TO CREDIT EXTENSIONS
	 	 	 	 
	 
	SECTION 4.01
	 	Conditions to Initial Credit Extension	 	 	68	 
	SECTION 4.02
	 	Conditions to All Credit Extensions	 	 	73	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 	 	 
	AFFIRMATIVE COVENANTS
	 	 	 	 
	 
	SECTION 5.01
	 	Financial Statements, Reports, Etc.	 	 	74	 
	SECTION 5.02
	 	Litigation and Other Notices	 	 	76	 
	SECTION 5.03
	 	Existence; Businesses and Properties	 	 	77	 
	SECTION 5.04
	 	Insurance	 	 	78	 
	SECTION 5.05
	 	Obligations and Taxes	 	 	79	 
	SECTION 5.06
	 	Employee Benefits	 	 	79	 
	SECTION 5.07
	 	Maintaining Records; Access to Properties and Inspections; Annual Meetings	 	 	80	 
	SECTION 5.08
	 	Use of Proceeds	 	 	80	 
	SECTION 5.09
	 	Compliance with Environmental Laws; Environmental Reports	 	 	80	 
	SECTION 5.10
	 	Interest Rate Protection	 	 	80	 
	SECTION 5.11
	 	Additional Collateral; Additional Guarantors	 	 	81	 
	SECTION 5.12
	 	Security Interests; Further Assurances	 	 	82	 
	SECTION 5.13
	 	Information Regarding Collateral	 	 	83	 
	SECTION 5.14
	 	Post-Closing Collateral Matters	 	 	83	 
	SECTION 5.15
	 	Affirmative Covenants with Respect to Leases	 	 	83	 






-ii-









 






	 	 	 	 	 	 	 
	Section
 



	 	 	 	Page
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 	 	 
	NEGATIVE COVENANTS
	 	 	 	 
	 
	SECTION 6.01
	 	Indebtedness	 	 	84	 
	SECTION 6.02
	 	Liens	 	 	85	 
	SECTION 6.03
	 	Sale and Leaseback Transactions	 	 	87	 
	SECTION 6.04
	 	Investments, Loans and Advances	 	 	88	 
	SECTION 6.05
	 	Mergers and Consolidations	 	 	88	 
	SECTION 6.06
	 	Asset Sales	 	 	89	 
	SECTION 6.07
	 	Acquisitions	 	 	90	 
	SECTION 6.08
	 	Dividends	 	 	90	 
	SECTION 6.09
	 	Transactions with Affiliates	 	 	91	 
	SECTION 6.10
	 	Financial Covenants	 	 	91	 
	SECTION 6.11
	 	Prepayments of Other Indebtedness; Modifications of Organizational Documents and Other Documents, Etc.	 	 	93	 
	SECTION 6.12
	 	Limitation on Certain Restrictions on Subsidiaries	 	 	93	 
	SECTION 6.13
	 	Limitation on Issuance of Capital Stock	 	 	94	 
	SECTION 6.14
	 	Limitation on Creation of Subsidiaries	 	 	94	 
	SECTION 6.15
	 	Business	 	 	95	 
	SECTION 6.16
	 	Limitation on Accounting Changes	 	 	95	 
	SECTION 6.17
	 	Fiscal Year	 	 	95	 
	SECTION 6.18
	 	Lease Obligations	 	 	95	 
	SECTION 6.19
	 	No Further Negative Pledge	 	 	95	 
	SECTION 6.20
	 	Anti-Terrorism Law; Anti-Money Laundering	 	 	95	 
	SECTION 6.21
	 	Embargoed Person	 	 	96	 
	 
	 	 	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 	 	 
	GUARANTEE
	 	 	 	 
	 
	SECTION 7.01
	 	The Guarantee	 	 	96	 
	SECTION 7.02
	 	Obligations Unconditional	 	 	96	 
	SECTION 7.03
	 	Reinstatement	 	 	97	 
	SECTION 7.04
	 	Subrogation; Subordination	 	 	98	 
	SECTION 7.05
	 	Remedies	 	 	98	 
	SECTION 7.06
	 	Instrument for the Payment of Money	 	 	98	 
	SECTION 7.07
	 	Continuing Guarantee	 	 	98	 
	SECTION 7.08
	 	General Limitation on Guarantee Obligations	 	 	98	 
	SECTION 7.09
	 	Release of Guarantors	 	 	98	 
	SECTION 7.10
	 	Right of Contribution	 	 	99	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 	 	 
	EVENTS OF DEFAULT
	 	 	 	 
	 
	SECTION 8.01
	 	Events of Default	 	 	99	 
	SECTION 8.02
	 	Application of Proceeds	 	 	102	 






-iii-









 







	 	 	 	 	 	 	 
	Section
 



	 	 	 	Page
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 	 	 
	THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
	 	 	 	 
	 
	SECTION 9.01
	 	Appointment and Authority	 	 	103	 
	SECTION 9.02
	 	Rights as a Lender	 	 	103	 
	SECTION 9.03
	 	Exculpatory Provisions	 	 	103	 
	SECTION 9.04
	 	Reliance by Agent	 	 	104	 
	SECTION 9.05
	 	Delegation of Duties	 	 	104	 
	SECTION 9.06
	 	Resignation of Agent	 	 	104	 
	SECTION 9.07
	 	Non-Reliance on Agent and Other Lenders	 	 	105	 
	SECTION 9.08
	 	No Other Duties, etc.	 	 	105	 
	SECTION 9.09
	 	Withholding Tax	 	 	105	 
	 
	 	 	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	SECTION 10.01
	 	Notices	 	 	106	 
	SECTION 10.02
	 	Waivers; Amendments	 	 	108	 
	SECTION 10.03
	 	Expenses; Indemnity; Damage Waiver	 	 	111	 
	SECTION 10.04
	 	Successors and Assigns	 	 	113	 
	SECTION 10.05
	 	Survival of Agreement	 	 	115	 
	SECTION 10.06
	 	Counterparts; Integration; Effectiveness	 	 	115	 
	SECTION 10.07
	 	Severability	 	 	116	 
	SECTION 10.08
	 	Right of Setoff	 	 	116	 
	SECTION 10.09
	 	Governing Law; Jurisdiction; Consent to Service of Process	 	 	116	 
	SECTION 10.10
	 	Waiver of Jury Trial	 	 	117	 
	SECTION 10.11
	 	Headings	 	 	117	 
	SECTION 10.12
	 	Treatment of Certain Information; Confidentiality	 	 	117	 
	SECTION 10.13
	 	USA PATRIOT Act Notice	 	 	118	 
	SECTION 10.14
	 	Interest Rate Limitation	 	 	118	 
	SECTION 10.15
	 	Lender Addendum	 	 	118	 
	SECTION 10.16
	 	Obligations Absolute	 	 	118	 






ANNEXES




	 	 	 
	Annex I

	 	Applicable Margin
	Annex II

	 	Amortization Table






SCHEDULES




	 	 	 
	Schedule 1.01(b)

	 	Guarantors
	Schedule 3.03

	 	Governmental Approvals; Compliance with Laws
	Schedule 3.06(c)

	 	Violations or Proceedings
	Schedule 3.09

	 	Material Agreements
	Schedule 3.18

	 	Environmental Matters
	Schedule 3.19

	 	Insurance
	Schedule 3.21

	 	Acquisition Documents






-iv-









 






	 	 	 
	Schedule 4.01(g)

	 	Local Counsel
	Schedule 4.01(o)(iii)

	 	Title Insurance Amounts
	Schedule 5.01(a)

	 	Annual Report Key Information
	Schedule 5.01(b)

	 	Quarterly Report Key Information
	Schedule 5.14

	 	Post-Closing Matters
	Schedule 6.01(b)

	 	Existing Indebtedness
	Schedule 6.02(c)

	 	Existing Liens
	Schedule 6.04(b)

	 	Existing Investments
	Schedule 6.06(i)

	 	Permitted Asset Sales






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 LC Request
	Exhibit H

	 	Form of Lender Addendum
	Exhibit I-1

	 	Form of Mortgage
	Exhibit I-2

	 	Form of Leasehold Mortgage
	Exhibit J-1

	 	Form of Term Note
	Exhibit J-2

	 	Form of Revolving Note
	Exhibit J-3

	 	Form of Swingline Note
	Exhibit K-1

	 	Form of Perfection Certificate
	Exhibit K-2

	 	Form of Perfection Certificate Supplement
	Exhibit L

	 	Form of Security Agreement
	Exhibit M

	 	Form of Opinion of Company Counsel
	Exhibit N

	 	Form of Solvency Certificate
	Exhibit O

	 	Form of Intercompany Note
	Exhibit P

	 	Form of Non-Bank Certificate







-v-









 








CREDIT AGREEMENT




          This CREDIT AGREEMENT (this “Agreement”), dated as of October 27, 2006, among TTM
TECHNOLOGIES, INC., a Delaware corporation (“Borrower”), the Guarantors (such term and each other
capitalized term used but not defined herein having the meaning given to it in Article I),
the Lenders, UBS SECURITIES LLC, as sole lead arranger (in such capacity, “Arranger”) and sole
bookrunner, BANK OF AMERICA, N.A., COMERICA BANK and SILICON VALLEY BANK, as co-documentation
agents (in such capacities, “Co-Documentation Agents”), JPMORGAN CHASE BANK, N.A., as syndication
agent (in such capacity, “Syndication Agent”), UBS LOAN FINANCE LLC, as swingline lender (in such
capacity, “Swingline Lender”), and UBS AG, STAMFORD BRANCH, as issuing bank (in such capacity,
“Issuing Bank”), 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 Issuing
Bank.




WITNESSETH:




          WHEREAS, TTM Printed Circuit Group, Inc., a wholly owned subsidiary of Borrower (“Acquisition
Co.”), has entered into that certain Stock and Asset Purchase Agreement, dated as of August 2, 2006
(as amended, supplemented or otherwise modified from time to time in accordance with the provisions
hereof and thereof, the “Acquisition Agreement”), with (a) Tyco Printed Circuit Group LP, Tyco
Electronics Corporation, Tyco Electronics Logistics AG and Raychem International (collectively, the
“Asset Selling Entities”), and (b) Tyco Kappa Limited (the “Equity Selling Entity” and, together
with the Asset Selling Entities, the “Sellers”), pursuant to which Acquisition Co. intends to
acquire (the “Acquisition”) all of (i) the Asset Selling Entities’ rights, title and interest in
and to certain assets relating to the Asset Selling Entities’ printed circuit board business (the
“Acquired Assets”) and (ii) the Equity Selling Entity’s equity interest in Tyco Iota Limited (the
“Acquired Entity” and, together with the Acquired Assets, the “Acquired Business”).




          WHEREAS, Borrower has requested the Lenders to extend credit in the form of (a) Term Loans on
the Closing Date, in an aggregate principal amount not in excess of $200.0 million, and (b)
Revolving Loans at any time and from time to time after the Closing Date and prior to the Revolving
Maturity Date, in an aggregate principal amount at any time outstanding not in excess of $40.0
million.




          WHEREAS, Borrower has requested the Swingline Lender to make Swingline Loans, at any time and
from time to time after the Closing Date and prior to the Revolving Maturity Date, in an aggregate
principal amount at any time outstanding not in excess of $5.0 million.




          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 $10.0 million, 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.




          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 Term Loan bearing interest at a rate determined by reference to
the Alternate Base Rate in accordance with the provisions of Article II.




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




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




          “Acquired Entity” 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 Co.” 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 Borrower 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 Permitted Acquisition to be established in respect thereof by
Borrower or any of its Subsidiaries.




-2-









 








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




          “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%)
determined by the Administrative Agent to be 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 0.50% per annum.




          “Applicable Margin” shall mean, for any day, with respect to any Revolving Loan or Term Loan,
the applicable percentage set forth in Annex I under the appropriate caption.




          “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.




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




          “Asset Sale” shall mean (a) any conveyance, sale, lease, sublease, license, assignment,
transfer or other disposition (including by way of merger or consolidation and including any Sale
and Leaseback Transaction) of any property excluding sales of inventory and dispositions of cash
and cash equivalents, in each case, in the ordinary course of business, by Borrower or any of its
Subsidiaries and (b) any issuance or sale of any Equity Interests of any Subsidiary of Borrower, in
each case, to any person other than (i) Borrower, (ii) any Guarantor or (iii) other than for
purposes of Section 6.06, any other Subsidiary.




          “Asset Selling Entities” shall have the meaning assigned to such term in the first recital
hereto.




          “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.




          “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; 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 (a) 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, or (b) a Swingline Loan.




          “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.




-4-









 








          “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
(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 property, plant and equipment in Permitted
Acquisitions. For purposes of this definition, the purchase price of equipment or other fixed
assets that are purchased simultaneously with the trade-in of existing assets or with insurance
proceeds shall be included in Capital Expenditures only to the extent of the gross amount by which
such purchase price exceeds the credit granted by the seller of such assets for the assets being
traded in at such time or the amount of such insurance proceeds, as the case may be.




          “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 30 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, which repurchase obligations are secured by a
valid perfected security interest in the underlying securities; (d) commercial paper issued by any
person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at
least P-1 or the equivalent thereof by Moody’s, 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

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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 Borrower 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) at any time a change of control or similar event (howsoever defined) occurs under
any Material Indebtedness and any such change of control or similar event could result in
(i) an event of default or prepayment event under such Material Indebtedness or (ii) any
other event that, in the case of this clause (ii), the Required Lenders determine could
reasonably be expected to impair (A) the ability of the Loan Parties to perform their
obligations under the Loan Documents or (B) the rights or position of the Lenders in
relation to the holders of such Material Indebtedness;




     (b) any Person or two or more Persons acting in concert shall have acquired beneficial
ownership, directly or indirectly, or shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon consummation, will result in its or
their acquisition of control over, Voting Stock of Borrower (or other securities convertible
into such Voting Stock) representing 33% or more of the combined voting power of all
outstanding Voting Stock of Borrower; or




     (c) the occupation of a majority of the seats (other than vacant seats) on the Board of
Directors of Borrower by Persons who were neither (i) nominated by the Board of Directors of
Borrower nor (ii) appointed by directors so nominated.



          As used herein, “beneficial ownership” shall have the meaning provided in Rule 13d-3 of the
Securities Exchange Commission promulgated under the Exchange Act.




          “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, Term Loans or Swingline Loans and, when used
in reference to any Commitment, refers to whether such Commitment is a Revolving

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Commitment, Term Loan Commitment or Swingline 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.




          “Co-Documentation Agents” shall have the meaning assigned to such term in the preamble hereto.




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




          “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.




          “Commercial Letter of Credit” shall mean any letter of credit or similar instrument issued for
the purpose of providing credit support in connection with the purchase of materials, goods or
services by Borrower or any of its Subsidiaries in the ordinary course of their businesses.




          “Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Commitment, Term
Loan Commitment or Swingline Commitment, and any Commitment to make 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 Borrower 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 of Borrower dated as of October 2006.




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




          “Consolidated Current Assets” shall mean, as at any date of determination, the total assets of
Borrower and its Subsidiaries which may properly be classified as current assets on a consolidated
balance sheet of Borrower and its Subsidiaries in accordance with GAAP, excluding cash and Cash
Equivalents.




          “Consolidated Current Liabilities” shall mean, as at any date of determination, the total
liabilities of Borrower and its Subsidiaries which may properly be classified as current
liabilities (other than the current portion of any Loans) on a consolidated balance sheet of
Borrower and its Subsidiaries in accordance with GAAP.




-7-









 








          “Consolidated Depreciation Expense” shall mean, for any period, the depreciation expense of
Borrower 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, 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) costs and expenses directly incurred in connection with the Transactions (not to
exceed $9.0 million), and




     (f) 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) for such period.




          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 thereof 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.




          “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 Coverage Ratio” shall mean, for any Test Period, the ratio of (x)
Consolidated EBITDA for such Test Period to (y) Consolidated Interest Expense for such Test Period.




          “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:




-8-









 









     (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




     (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;
provided, further, that Consolidated Interest Expense for Borrower and its Subsidiaries for each of
the fiscal quarters ending on June 30, 2006 and September 30, 2006 shall be deemed to be $3.7
million.




          Consolidated Interest Expense shall be calculated on a Pro Forma Basis to give effect to any
Indebtedness incurred, assumed or permanently repaid or extinguished during the relevant Test
Period 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



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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;




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




     (f) earnings resulting from any reappraisal, revaluation or write-up of assets;




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




     (h) 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.



          For purposes of this definition of “Consolidated Net Income,” “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.




          “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 $100,000, 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




-10-









 







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.




          “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.




          “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.




          “Debt Issuance” shall mean the incurrence by Borrower 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 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 the first anniversary of 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

-11-









 








on or prior to the first anniversary of the Final Maturity Date, or (c) contains any
repurchase obligation which may come into effect prior to payment in full of all Obligations;
provided, however, that any Equity Interests that would not constitute Disqualified Capital Stock
but for provisions thereof giving holders thereof (or the holders of any security into or for which
such Equity Interests is convertible, exchangeable or exercisable) the right to require the issuer
thereof to redeem such Equity Interests upon the occurrence of a change in control or an asset sale
occurring prior to the first anniversary of the Final Maturity Date shall not constitute
Disqualified Capital Stock if such Equity Interests provide that the issuer thereof will not redeem
any such Equity Interests pursuant to such provisions prior to the repayment in full of the
Obligations.




          “Dividend” with respect to any person shall mean that such person has declared or paid a
dividend or returned any equity capital to the holders of its Equity Interests or authorized or
made any other distribution, payment or delivery of property (other than Qualified Capital Stock of
such person) or cash to the holders of its Equity Interests as such, or redeemed, retired,
purchased or otherwise acquired, directly or indirectly, for consideration any of its Equity
Interests outstanding (or any options or warrants issued by such person with respect to its Equity
Interests), or set aside any funds for any of the foregoing purposes, or shall have permitted any
of its Subsidiaries to purchase or otherwise acquire for consideration any of the Equity Interests
of such person outstanding (or any options or warrants issued by such person with respect to its
Equity Interests). Without limiting the foregoing, “Dividends” with respect to any person shall
also include all payments made or required to be made by such person with respect to any stock
appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting
aside of any funds for the foregoing purposes.




          “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, (ii) an Affiliate of any Revolving Lender, (iii) an Approved Fund of a
Revolving Lender and (iv) any other person approved by the Administrative Agent, the Issuing Bank,
the Swingline Lender 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 Arranger) 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 6.21.




          “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,

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property damage, fines, penalties or other costs resulting from, related to or arising out of
(i) the presence, Release or threatened Release in or into the Environment of Hazardous Material at
any location or (ii) any violation or alleged violation of any Environmental Law, and shall include
any claim seeking damages, contribution, indemnification, cost recovery, compensation or injunctive
relief resulting from, related to or arising out of the presence, Release or threatened Release of
Hazardous Material or alleged injury or threat of injury to health, safety or the Environment.




          “Environmental Law” shall mean any and all present and future treaties, laws, statutes,
ordinances, regulations, rules, decrees, orders, judgments, consent orders, consent decrees, code
or other binding requirements, and the common law, 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 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 Selling Entity” shall have the meaning assigned to such term in the first recital
hereto.




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




          “ERISA Affiliate” shall mean, with respect to any person, any trade or business (whether or
not incorporated) that, together with such person, is treated as a single employer under Section
414 of the Code.




          “ERISA Event” shall mean (a) any “reportable event,” as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day
notice period is waived by regulation); (b) the existence with respect to any Plan of an
“accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the failure to make by its due date a required installment under Section
412(m) of the Code with respect to any Plan or the failure to make any required contribution to a
Multiemployer Plan; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (e)
the incurrence by any 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

-13-









 








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 Term 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(h).




          “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;




     (b) any voluntary prepayments of Term Loans and any permanent voluntary reductions to
the Revolving Commitments to the extent that an equal amount of the Revolving Loans
simultaneously is repaid, in each case so long as such amounts are not already reflected in
Debt Service, during such Excess Cash Flow Period;




     (c) Capital Expenditures during such Excess Cash Flow Period (excluding (i) Capital
Expenditures made in such Excess Cash Flow Period where a certificate in the form
contemplated by the following clause (d) was previously delivered and (ii) Capital
Expenditures resulting from the exercise by the Borrower of its reinvestment right under
Section 2.10(c)(ii) with respect to the Net Cash Proceeds from Asset Sales permitted
under Section 6.06(i)) that are paid in cash;




     (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



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Cash Flow Period (excluding Capital Expenditures resulting from the exercise by the
Borrower of its reinvestment right under Section 2.10(c)(ii) with respect to the Net
Cash Proceeds from Asset Sales permitted under Section 6.06(i)); provided that
Borrower shall deliver a certificate to the Administrative Agent not later than ninety (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 following Excess
Cash Flow Period;




     (e) the aggregate amount of investments made in cash during such period pursuant to
Sections 6.04(e) and (i);




     (f) taxes of Borrower 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) 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 over the amount of Net Working
Capital at the end of such Excess Cash Flow Period;




     (h) 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; and




     (i) 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 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 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 return on or in respect of investments received in cash during such period,
which investments were made pursuant to Section 6.04(e) or (i);




     (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) or (f));



-15-









 






     (vi) if deducted in the computation of Consolidated EBITDA, interest income; and




     (vii) 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, 2007 and ending on December 31, 2007 and (ii) each fiscal year of Borrower ending
thereafter.




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.




          “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 (however
denominated) and franchise taxes imposed on it (in lieu of net income taxes), by a jurisdiction (or
any political subdivision thereof) as a result of the recipient being organized or having its
principal office or, in the case of any Lender, its applicable lending office in such jurisdiction
and branch profits taxes imposed by the United States 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).




          “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).




          “Existing Mortgage” shall have the meaning assigned to such term in Section 2.19(b).




          “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 later of the Revolving Maturity Date and the Term Loan
Maturity Date.




          “Financial Officer” of any person shall mean the chief financial officer, principal accounting
officer, treasurer or controller of such person.




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




          “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.




          “Foreign Plan” shall mean any employee benefit plan, program, policy, arrangement or agreement
maintained or contributed to by any Company with respect to employees employed outside the United
States.




          “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.




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




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




          “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.




          “Increase Effective 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 90 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) all Hedging Obligations to the extent required to be reflected on a
balance sheet of such person; (i) all Attributable Indebtedness of such person; (j) all obligations
of such person for the reimbursement of any obligor in respect of letters of credit, letters of
guaranty, bankers’ acceptances and similar credit transactions; and (k) all Contingent Obligations
of such person in respect of Indebtedness or obligations of others of the kinds referred to in
clauses (a) through (j) above. The Indebtedness of any person shall include the Indebtedness of
any other entity (including any partnership in which such person is a general partner) to the
extent such person is liable therefor as a result of such person’s ownership interest in or other
relationship with such entity, except (other than in the case of general partner liability) to the
extent that terms of such Indebtedness expressly provide that such person is not liable therefor.




          “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.




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          “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 mean the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, state,
multinational or foreign laws or otherwise, including (i) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto, and all patents,
patent applications, and patent disclosures, together with all provisionals, reissuances,
continuations, continuations-in-part, divisions, revisions, extensions, and reexaminations thereof,
(ii) all trademarks, service marks, trade dress, logos, brand names, trade names, domain names and
corporate names, together with all translations, adaptations, derivations, and combinations thereof
and including all goodwill associated therewith, and all applications, registrations and renewals
in connection therewith, (iii) all copyrightable works and protectable designs, all copyrights, and
all applications, registrations, and renewals in connection therewith, (iv) all mask works and all
applications, registrations, and renewals in connection therewith, (v) all trade secrets and
confidential business information (including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques, technical data, drawings,
designs, specifications, research records, records of inventions, test information, customer and
supplier lists, pricing and cost information, and business and marketing plans and proposals), (vi)
any rights in or licenses to or from a third party in any of the foregoing, and (vii) any past,
present, or future claims or causes of actions arising out of or related to any infringement,
misappropriation, dilution or other violation of any of the foregoing, including the right to
receive all proceeds and damages therefrom.




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




          “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 (including Swingline
Loans), 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, each day prior to 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 or Swingline Loan, the
Revolving Maturity Date or such earlier date on which the Revolving Commitments are terminated and
(d) with respect to any Term Loan, the Term Loan Maturity Date.




          “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 (or, if each affected Lender so agrees, nine months)

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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 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.




          “Issuing Bank” shall mean, as the context may require, (a) UBS AG, Stamford Branch, 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.




          “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 $10.0
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 G, 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.




          “Lender Addendum” shall mean with respect to any Lender on the Closing Date, a lender addendum
in the form of Exhibit H, 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




-20-









 





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. Unless the context
clearly indicates otherwise, the term “Lenders” shall include the Swingline Lender.




          “Letter of Credit” shall mean any (i) Standby Letter of Credit and (ii) Commercial Letter of
Credit, in each case, 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 determined by the Administrative Agent to be 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), the
Security Documents, any documents or certificates executed by any Company in favor of the Issuing
Bank relating to Letters of Credit, and all other documents, instruments and agreements executed
and delivered by a Loan Party for the benefit of any Agent, the Issuing Bank or any Lender in
connection herewith and, solely for purposes of paragraph (e) of Section 8.01, the
confidential Fee Letter, dated August 2, 2006, among Borrower, UBS Loan Finance LLC and UBS
Securities LLC.




-21-









 








          “Loan Parties” shall mean Borrower and the Guarantors.




          “Loans” shall mean, as the context may require, a Revolving Loan, a Term Loan or a Swingline
Loan.




          “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, condition (financial or otherwise) or material agreements of Borrower and
its Subsidiaries, taken as a whole; (b) a material impairment of the ability of the Loan Parties to
fully and timely perform any of their material obligations under any Loan Document; (c) a 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 Indebtedness” shall mean any Indebtedness (other than the Loans and Letters of
Credit) or Hedging Obligations of Borrower 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.




          “Modification” shall have the meaning assigned to such term in Section 2.19(b).




          “Moody’s” shall mean Moody’s Investor Services, Inc.




          “Mortgage” shall mean an agreement, including, but not limited to, a fee and/or leasehold
mortgage, deed of trust or any other document, creating and evidencing a Lien on a Mortgaged
Property, which shall be substantially in the form of Exhibit I-1 or I-2, as
applicable, or other form reasonably satisfactory to the Collateral Agent, in each case, 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).




          “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 Borrower or any of its Subsidiaries (including
cash



-22-









 







proceeds subsequently received (as and when received by Borrower 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 Borrower 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 90 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
90 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 for 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, the cash proceeds thereof, net of customary
fees, commissions, costs and other expenses incurred in connection therewith; and




     (c) with respect to any Casualty Event, the cash insurance proceeds, condemnation
awards and 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 Casualty Event.



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




          “Notes” shall mean any notes evidencing the Term Loans, Revolving Loans or Swingline Loans
issued pursuant to this Agreement, if any, substantially in the form of Exhibit J-1,
J-2 or J-3.




          “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 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.




-23-









 








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




          “Officers’ Certificate” shall mean a certificate executed by the chairman of the Board of
Directors (if an officer), the chief executive officer or the president and 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 (including interest, fines, penalties and additions to
tax) 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 K-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.




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




          “Permitted Acquisition” shall mean any transaction or series of related transactions for the
direct or indirect (a) acquisition of all or substantially all of the property of any person, or of
any business or division of any person; (b) acquisition of in excess of 50% of the Equity Interests
of any person, and otherwise causing such person to become a Subsidiary of such person; or (c)
merger or consolidation or any other combination with any person, if each of the following
conditions is met:





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




     (ii) after giving effect to such transaction on a Pro Forma Basis, (A) Borrower shall
be in compliance with all covenants set forth in Section 6.10 as of the most recent
Test Period (assuming, 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
(B) unless expressly approved by the Administrative Agent, the person or business to be
acquired shall have generated positive net income for the Test Period most recently ended
prior to the date of consummation of such acquisition;



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     (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 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 its 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) the Board of Directors of the person to be acquired shall not have indicated
publicly its opposition to the consummation of such acquisition (which opposition has not
been publicly withdrawn);




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




     (vii) with respect to any transaction involving Acquisition Consideration of more than
$10.0 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 without undue cost or delay) 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
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;




     (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 Officers’
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; and




     (ix) the Acquisition Consideration for such acquisition shall not exceed $50.0 million,
and the aggregate amount of the Acquisition Consideration for all Permitted Acquisitions
since the Closing Date shall not exceed $100.0 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.



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          “Permitted Collateral Liens” means (a) in the case of Collateral other than Mortgaged
Property, the Liens described in clauses (a), (b), (c), (d), (e), (f), (g), (h), (j), (k), (l), (m)
and (n) of Section 6.02 and (b) in the case of Mortgaged Property, “Permitted Collateral
Liens” shall mean the Liens described in clauses (a), (b), (d), (e), (g) 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 Title Policy.




          “Permitted Liens” shall have the meaning assigned to such term in Section 6.02.




          “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).




          “Post-Increase Revolving Lenders” shall have the meaning assigned to such term in Section
2.19(d).




          “Pre-Increase Revolving Lenders” shall have the meaning assigned to such term in Section
2.19(d).




          “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 Borrower or any of its
Subsidiaries of any Preferred Stock after the Closing Date.




          “Premises” shall have the meaning assigned thereto in the applicable Mortgage.




          “Pro Forma Basis” shall mean on a basis in accordance with GAAP and Regulation S-X and
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)

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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.




          “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.




          “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 S-X” shall mean Regulation S-X promulgated under the Securities Act.




          “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.




          “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.




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




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




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          “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 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.




          “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 $40.0 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, plus the aggregate amount at such time of such
Lender’s Swingline 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 five (5) years after the Closing Date
or, if such date is not a Business Day, the first Business Day thereafter.




          “S&P” shall mean Standard & Poor’s Rating Service, a division of The McGraw Hill Corporation.




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




          “Sarbanes-Oxley Act” shall mean the United States Sarbanes-Oxley Act of 2002, as amended, and
all rules and regulations promulgated thereunder.




          “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 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, as amended from time to time, and any
successor statute.




          “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
L 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.




          “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,




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(c) performance, payment, deposit or surety obligations of Borrower or any of its Subsidiaries
if required by a Requirement of Law 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.




          “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, including the Senior Subordinated Notes.




          “Subsidiary” shall mean, with respect to any person (the “parent”) at any date, (i) any person
the accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such
date, (ii) any other corporation, limited liability company, association or other business entity
of which securities or other ownership interests representing more than 50% of the voting power of
all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the
election of the Board of Directors thereof are, as of such date, owned, controlled or held by the
parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general
partner or the managing general partner of which is the parent and/or one or more subsidiaries of
the parent or (b) the only general partners of which are the parent and/or one or more subsidiaries
of the parent and (iv) any other person that is otherwise Controlled by the parent and/or one or
more subsidiaries of the parent. Unless the context requires otherwise, “Subsidiary” refers to a
Subsidiary of Borrower.




          “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 the endorsements of the type required by
Section 4.01(o)(iii) or (b) otherwise acceptable to the Collateral Agent.




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          “Swingline Commitment” shall mean the commitment of the Swingline Lender to make loans
pursuant to Section 2.17, as the same may be reduced from time to time pursuant to
Section 2.07 or Section 2.17. The amount of the Swingline Commitment shall
initially be $5.0 million, but shall in no event exceed the Revolving Commitment.




          “Swingline Exposure” shall mean at any time the aggregate principal amount at such time of all
outstanding Swingline Loans. The Swingline Exposure of any Revolving Lender at any time shall
equal its Pro Rata Percentage of the aggregate Swingline Exposure at such time.




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




          “Swingline Loan” shall mean any loan made by the Swingline Lender pursuant to Section
2.17.




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




          “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 Term Loans.




          “Term Loan Commitment” shall mean, with respect to each Lender, the commitment, if any, of
such Lender to make a Term Loan hereunder on the Closing Date in the amount set forth on Schedule I
to the Lender Addendum executed and delivered by such Lender, 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’ Term Loan Commitments is $200.0 million.




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




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




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




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




          “Test Period” shall mean, at any time, the four consecutive fiscal quarters of Borrower then
last ended (in each case taken as one accounting period) for which financial statements have been
or are required to be delivered pursuant to Section 5.01(a) or (b).




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




          “Title Policy” shall have the meaning assigned to such term in Section 4.01(o)(iii).




          “Total Leverage Ratio” shall mean, at any date of determination, the ratio of Consolidated
Indebtedness on such date to Consolidated EBITDA for the Test Period then most recently ended.




          “Transaction Documents” shall mean the Acquisition 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;
and (c) 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.




          “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 Term Loans”)




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or by Type (e.g., a “Eurodollar
Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Borrowing”).




          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.




          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 Term Loan to Borrower on the Closing Date in the principal amount not to
exceed its Term Loan 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 second Business Day immediately preceding the
Revolving Maturity Date and the termination of the Revolving Commitment of such Lender in



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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 Term 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 (other than Swingline Loans) 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 $1.0
million and not less than $5.0 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 $1.0 million and not less than $5.0
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 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
five 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 not later than 3:00 p.m., 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 time
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 on the date 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

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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.




          (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 or the 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 other electronic transmission permitted
under Section 10.01, a duly completed and executed Borrowing Request to the Administrative
Agent (i) in the case of a Eurodollar Borrowing, not later than 1:00 p.m., 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 12:00 noon, New York City time, on 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 Term
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.




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          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 Term Loan Lender, the principal amount of each Term
Loan of such Term Loan Lender as provided in Section 2.09, (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 and (iii) to the Swingline Lender, the then
unpaid principal amount of each Swingline Loan on the earlier of the Revolving Maturity Date and
the first date after such Swingline Loan is made that is the 15th or last day of a calendar month
and is at least two Business Days after such Swingline Loan is made; provided that on each date
that a Revolving Borrowing is made, Borrower shall repay all Swingline Loans that were outstanding
on the date such Borrowing was requested.




          (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.




          (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 J-1, J-2 or J-3, 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 Commitment of such Lender during the period from and
including the date hereof to but excluding the date on which such 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 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




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outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).




          (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).




          (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 Loans.




          (a) ABR Loans. Subject to the provisions of Section 2.06(c), the Loans
comprising each ABR Borrowing, including each Swingline Loan, 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 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

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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 or a Swingline 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 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 be conclusive absent manifest error.




          SECTION 2.07 Termination and Reduction of Commitments.




          (a) Termination of Commitments. The Term Loan Commitments shall automatically
terminate at 5:00 p.m., New York City time, on the Closing Date. The Revolving Commitments, the
Swingline Commitment 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 November 3, 2006, if the initial Credit Extension shall not have
occurred by such time.




          (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.





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          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. This Section shall not apply to Swingline
Borrowings, which may not be converted or continued.




          (b) Interest Election Notice. To make an election pursuant to this Section, Borrower
shall deliver, by hand delivery or telecopier, 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;




     (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




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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 “Term Loan Repayment Date”), a principal amount of the Term Loans equal to the amount set
forth on Annex II for such date (as adjusted from time to time pursuant to Section
2.10(h)), 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 Term Loans
shall be due and payable on the Term Loan 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 all outstanding Swingline Loans 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 effect to such reduction, then Borrower shall, on the
date of such reduction, first, repay or prepay Swingline Loans, second, repay or prepay
Revolving Borrowings and third, 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, immediately
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, immediately 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.



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          (c) Asset Sales. Not later than three Business Days following the receipt of any Net
Cash Proceeds of any Asset Sale by Borrower or any of its Subsidiaries, Borrower shall make
prepayments in accordance with Sections 2.10(h) and (i) 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 Section 6.06(a), (B) the disposition of
property which constitutes a Casualty Event, or (C) Asset Sales for fair market value
resulting in no more than $1.0 million in Net Cash Proceeds per Asset Sale (or series of
related Asset Sales) and less than $2.0 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 and the aggregate
of such Net Cash Proceeds of Asset Sales shall not exceed $25.0 million in any fiscal year
of Borrower, such proceeds shall not be required to be applied as prepayments in accordance
with this Section 2.10(c) on such date to the extent that Borrower shall have
delivered an Officers’ Certificate to the Administrative Agent on or prior to such date
stating that such Net Cash Proceeds are expected to be reinvested in fixed or capital assets
within 270 days following the date of such Asset Sale (which Officers’ 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 such 270-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. If the aggregate of such Net Cash Proceeds exceeds $25.0 million, then the
amount in excess of $25.0 million shall in all cases be applied as a prepayment in
accordance with this Section 2.10(c).



          (d) Debt Issuance or Preferred Stock Issuance. Not later than three Business Days
following the receipt of any Net Cash Proceeds of any Debt Issuance or Preferred Stock Issuance by
Borrower or any of its Subsidiaries, Borrower shall make prepayments in accordance with
Sections 2.10(h) and (i) in an aggregate amount equal to 100% of such Net
Cash Proceeds.




          (e) [Reserved].




          (f) Casualty Events. Not later than three Business Days following the receipt of any
Net Cash Proceeds from a Casualty Event by Borrower or any of its Subsidiaries, Borrower shall make
prepayments in accordance with Sections 2.10(h) and (i) 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 (A) in the event such Net Cash
Proceeds do not exceed $5.0 million, Borrower shall have delivered an Officers’ Certificate
to the Administrative Agent on or prior to such date stating that such proceeds are expected
to be used, or (B) in the event that such Net Cash Proceeds exceed $5.0 million, the
Administrative Agent has elected by notice to Borrower on or prior to such date to require
such proceeds to be used, in each case, to repair, replace or restore any property in
respect of which such Net Cash Proceeds were paid, no later than 180 days following the date
of receipt of such proceeds; provided that if



-41-









 




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 such
180-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) Excess Cash Flow. No later than the earlier of (i) 90 days after the end of each
Excess Cash Flow Period and (ii) the date on which the financial statements with respect to such
fiscal year in which such Excess Cash Flow Period occurs are delivered pursuant to Section
5.01(a), Borrower shall make prepayments in accordance with Sections 2.10(h) and
(i) in an aggregate amount equal to 50% of Excess Cash Flow for the Excess Cash Flow Period
then ended; provided that if the maximum Total Leverage Ratio for such Excess Cash Flow Period is
less than 1.0:1.0, then such prepayment percentage shall be 25% for such Excess Cash Flow Period.




          (h) Application of Prepayments. Any prepayments of Term Loans pursuant to Section
2.10(a), (c), (d), (e), (f) or (g) shall be applied to reduce
scheduled prepayments required under Section 2.09 , first, to such scheduled prepayments
due on the Term Loan Repayment Dates occurring within the 12 months following such prepayment and,
second, on a pro rata basis among the prepayments remaining to be made on each other Term Loan
Repayment Date. After application of mandatory prepayments of Term Loans described above in this
Section 2.10(h) 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 Term 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.




          (i) Notice of Prepayment. Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by written notice of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 1:00 p.m., New
York




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City time, three Business Days before the date of prepayment, (ii) in the case of prepayment
of an ABR Borrowing, not later than 12:00 noon, New York City time, one Business Day before the
date of prepayment and (iii) in the case of prepayment of a Swingline Loan, not later than 12:00
noon, New York City time, on 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 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 (other
than a notice relating solely to Swingline Loans), 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 Eurodollar 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



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          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;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar 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 nine 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 nine-month period referred to above shall be extended to
include the period of retroactive effect thereof) .




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          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 Term 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 Section 2.16(b) and Section 2.19(a), 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 677 Washington Boulevard, Stamford, Connecticut, except payments to be made
directly to the Issuing Bank or Swingline Lender 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.



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     (ii) Each payment on account of principal of the Term Loans shall be allocated among
the Term Loan Lenders pro rata based on the principal amount of the Term Loans held by the
Term Loan 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.



          (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 Set-Off. 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




          
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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 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 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 deductions (including 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 deductions
been made, (ii) the applicable Loan Party shall make such deductions and (iii) the applicable Loan
Party shall timely pay the full amount 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) paid 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. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by Borrower to a Governmental Authority, Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority




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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 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 written
request of Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), two copies of whichever of the following is applicable:





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




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




     (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 P, 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,




     (iv) duly completed copies of Internal Revenue Service Form W-8IMY together with the
additional documentation that must be transmitted with Form W-8IMY, including the
appropriate Internal Revenue Service forms, or




     (v) 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, any Lender, if requested by the Borrower or the Administrative Agent, shall
deliver such other documentation prescribed by applicable law and reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether such Lender is subject to backup withholding or information reporting
requirements. Without limiting the generality of the foregoing, each Lender that is not a Foreign
Lender shall deliver to Borrower and the Administrative Agent on or prior to the date on which such
Lender becomes a Lender under this Agreement (and from time to time thereafter upon the written
request of Borrower or the Administrative Agent), two copies of Internal Revenue Service Form W-9.
Each Lender shall promptly notify the Borrower and the Administrative Agent at any time it
determines that it is no longer in a position to provide any previously delivered form or
certificate (or any other form or certification adopted by the United States taxing authorities for
such purpose).



          (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




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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.




          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 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 and the Administrative Agent, require such Lender 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 shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline Loans, 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), from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or Borrower (in
the case of all other amounts;



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     (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 shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require
such assignment and delegation cease to apply.




          SECTION 2.17 Swingline Loans.




          (a) Swingline Commitment. Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to Borrower from time to time during the Revolving
Availability Period, in an aggregate principal amount at any time outstanding that will not result
in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $5.0 million or (ii)
the sum of the total Revolving Exposures exceeding the total Revolving Commitments; provided that
the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth
herein, Borrower may borrow, repay and reborrow Swingline Loans.




          (b) Swingline Loans. To request a Swingline Loan, Borrower shall deliver, by hand
delivery or telecopier, a duly completed and executed Borrowing Request to the Administrative Agent
and the Swingline Lender, not later than 12:00 noon, New York City time, on the day of a proposed
Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which
shall be a Business Day) and the amount of the requested Swingline Loan. Each Swingline Loan shall
be an ABR Loan. The Swingline Lender shall make each Swingline Loan available to Borrower to an
account as directed by Borrower in the applicable Borrowing Request maintained with the
Administrative Agent (or, in the case of a Swingline Loan made to finance the reimbursement of an
LC Disbursement as provided in Section 2.18(e), by remittance to the Issuing Bank) by 3:00
p.m., New York City time, on the requested date of such Swingline Loan. Borrower shall not request
a Swingline Loan if at the time of or immediately after giving effect to the Extension of Credit
contemplated by such request a Default has occurred and is continuing or would result therefrom.
Swingline Loans shall be made in minimum amounts of $1.0 million and integral multiples of $500,000
above such amount.




          (c) Prepayment. Borrower shall have the right at any time and from time to time to
repay any Swingline Loan, in whole or in part, upon giving written notice to the Swingline Lender
and the Administrative Agent before 12:00 noon, New York City time, on the proposed date of
repayment.




          (d) Participations. The Swingline Lender may at any time in its discretion by written
notice given to the Administrative Agent (provided such notice requirement shall not apply if the
Swingline Lender and the Administrative Agent are the same entity) not later than 11:00 a.m., New
York City time, on the next succeeding Business Day following such notice require the Revolving
Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans
then outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which
Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Pro Rata
Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender,




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such Lender’s Pro Rata Percentage of such Swingline
Loan or Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever (so long as such payment shall
not cause such Lender’s Revolving Exposure to exceed such Lender’s Revolving Commitment). Each
Revolving Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.02(c) with respect to Loans made by such Lender (and Section 2.02 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from
the Revolving Lenders. The Administrative Agent shall notify Borrower of any participations in any
Swingline Loan acquired by the Revolving Lenders pursuant to this paragraph, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from Borrower (or other party on
behalf of Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the Administrative
Agent. Any such amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this
paragraph, as their interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve Borrower of any default in the payment thereof.




          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 1:00 p.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);



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     (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) 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 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:





     (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 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 $100,000, in the case
of a Commercial Letter of Credit, or $100,000, in the case of a Standby Letter of Credit.




          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 calendar month, 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.




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          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) in the case of a Standby Letter of Credit, (x) 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 (y) the Letter of
Credit Expiration Date and (ii) in
the case of a Commercial Letter of Credit, (x) the date that is 180 days after the date of
issuance of such Commercial Letter of Credit (or, in the case of any renewal or extension thereof,
180 days after such renewal or extension) and (y) 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.




          (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 12:00 noon, 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; provided that Borrower may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 that such payment be financed
with ABR Revolving Loans or Swingline Loans in an equivalent amount and, to the extent so
financed, Borrower’s obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Loans or Swingline Loans.




     (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



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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, 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




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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 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), 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




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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 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 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, prior to the Revolving Maturity Date, an increase to the existing Revolving
Commitments by an amount not in excess of $20.0 million in the aggregate. Each such notice shall
specify (i) the date




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(each, an “Increase Effective Date”) on which Borrower proposes that the
increased Revolving 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 increased Revolving Commitments be
allocated and the amounts of such allocations; provided that any existing Lender approached to
provide all or a portion of the increased Revolving Commitments may elect or decline, in its sole
discretion, to provide such increased Revolving Commitment.




          (b) Conditions. The increased Revolving 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 the borrowings to be made on the Increase
Effective Date and to any change in Consolidated EBITDA and any increase in Indebtedness
resulting from the consummation of any Permitted Acquisition concurrently with such
borrowings 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 each of the
covenants set forth in Section 6.10 and the Administrative Agent shall have received
an Officers’ Certificate showing in reasonable detail that the Total Leverage Ratio, on a
Pro Forma Basis, shall not be more than 0.25x “turns” less than the Total Leverage Ratio
applicable for such fiscal quarter as set forth in Section 6.10(a);




     (iv) Borrower shall make any payments required pursuant to Section 2.13 in
connection with any adjustment of Revolving Loans pursuant to Section 2.19(d);




     (v) (A) each Loan Party that is party to a Mortgage (each, an “Existing Mortgage”)
shall enter into, and deliver to Collateral Agent, at the direction and in the sole
discretion of Collateral Agent, a mortgage modification or new Mortgage with respect to such
Existing Mortgage, in proper form for recording in the relevant jurisdiction and in a form
reasonably satisfactory to the Collateral Agent (any such Mortgage or mortgage modification,
a “Modification”), (B) Borrower shall have caused the Title Company to have delivered to the
Collateral Agent for the benefit of the Secured Parties an endorsement to each Title Policy,
date down(s) or other evidence reasonably satisfactory to Collateral Agent insuring that (x)
the priority of the Lien of each Existing Mortgage as security for the Loans has not changed
and (y) confirming and/or insuring that (a) since the Closing Date, there has been no change
in the condition of title and (b) there are no intervening liens or encumbrances which may
then or thereafter take priority over the Lien of such Existing Mortgage, other than the
Permitted Collateral Liens (without adding any additional exclusions or exceptions to
coverage), and (C) Borrower shall, upon the request of Collateral Agent, deliver to the
Title Company, Collateral Agent and/or all other relevant third parties all other items
reasonably necessary to maintain the continuing priority of the Lien of the Existing
Mortgage as security for the Loans; and




     (vi) 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.



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          (c) Terms of Increased Revolving Commitments. The terms and provisions of Revolving
Loans made pursuant to increased Revolving Commitments shall be identical to the Revolving Loans.
The increased Revolving Commitments shall be effected by a joinder agreement (the “Increase
Joinder”) executed by Borrower, the Administrative Agent and each Lender making such increased
Revolving Commitment, in form and substance 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 Revolving Loans shall be deemed,
unless the context otherwise requires, to include references to Revolving Loans made pursuant to
increased Revolving Commitments made pursuant to this Agreement.




          (d) Adjustment of Revolving Loans. Each of the Revolving Lenders having a Revolving
Commitment prior to the relevant Increase Effective Date (the “Pre-Increase Revolving Lenders”)
shall assign to any Revolving Lender which is acquiring a new or additional Revolving Commitment on
the Increase Effective Date (the “Post-Increase Revolving Lenders”), and such Post-Increase
Revolving Lenders shall purchase from each Pre-Increase Revolving Lender, at the principal amount
thereof, such interests in the Revolving Loans and participation interests in LC Exposure and
Swingline Loans outstanding on such Increase Effective Date as shall be necessary in order that,
after giving effect to all such assignments and purchases, such Revolving Loans and participation
interests in LC Exposure and Swingline Loans will be held by Pre-Increase Revolving Lenders and
Post-Increase Revolving Lenders ratably in accordance with their Revolving Commitments after giving
effect to such increased Revolving Commitments.




          (e) Equal and Ratable Benefit. The Revolving Loans and Revolving Commitments
established pursuant to this paragraph shall constitute Revolving Loans and Revolving 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, except that the new Revolving
Loans may be subordinated in right of payment or the Liens securing the new Revolving Loans may be
subordinated, in each case, as set forth in the Increase Joinder. 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 new Commitments.




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




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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
(A) the consolidated balance sheets and related statements of income, stockholders’ equity (solely
with respect to the Borrower) and cash flows (i) of Borrower as of and for the fiscal years ended
December 31, 2005, December 31, 2004 and December 31, 2003, audited by and accompanied by the
unqualified opinion of KPMG LLP, independent public accountants, and (ii) of the Acquired Business
as of and for the fiscal years ended September 30, 2005 and September 30, 2004 and for the
nine-month period ending June 30, 2006, and (B) the unaudited consolidated and consolidating
balance sheets and related statements of income and cash flows (collectively, the “Unaudited
Financial Statements”) of (i) each of Borrower and the Acquired Business (other than cash flows for
the Acquired Business), as of each fiscal quarter ended March 31, 2006 and June 30, 2006 and for
the comparable periods of the preceding fiscal year, such Unaudited Financial Statements of
Borrower (x) to be certified by the chief financial officer of Borrower and (y) with respect to
which KPMG LLP shall have performed an SAS 100 review, and (ii) Borrower as of and for the fiscal
months ended July 31, 2006, August 31, 2006 and September 30, 2006 and for the comparable periods of the preceding fiscal year, certified by the chief
financial officer of Borrower. Such financial statements and all financial statements delivered
pursuant to Sections 5.01(a) and (b) have been prepared in accordance with GAAP
(other than the financial statements of the Acquired Business delivered pursuant to clause (B)(i)
above (the “Acquired Business Unaudited Financial Statements”) and present fairly and
accurately in all material respects the financial condition and results of operations and cash
flows of Borrower and the Acquired Business as of the dates and for the periods to which they
relate and the Acquired Business Unaudited Financial Statements have been prepared in




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accordance
with GAAP, except to the extent specifically set forth in Schedule 3.6(c) to the Acquisition
Agreement.




          (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 June 30, 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) Pro Forma Financial Statements. Borrower has heretofore delivered to the Lenders
Borrower’s unaudited pro forma consolidated and consolidating balance sheet and statements of
income and cash flows and pro forma EBITDA for the twelve-month period ended September 30, 2005,
and as of and for the twelve-month period ended September 30, 2006, in each case after giving
effect to the Transactions as if they had occurred on such date in the case of the balance sheet
and as of the beginning of all periods presented in the case of the statements of income and cash
flows. Such pro forma financial statements have been prepared in good faith by the Loan Parties,
based on the assumptions stated therein (which assumptions are believed by the Loan Parties on the
date hereof and on the Closing Date to be reasonable), are based on the best information available
to the Loan Parties as of the date of delivery thereof, accurately reflect all adjustments required
to be made to give effect to the Transactions and present fairly in all material respects the pro
forma consolidated financial position and results of operations of Borrower as of such date and for
such periods, assuming that the Transactions had occurred at such dates.




          (d) Forecasts. The forecasts of financial performance of Borrower and its
Subsidiaries, on an annual basis, through the year 2012, and on a quarterly basis, through the year
2007, previously furnished to the Lenders have been prepared in good faith by Borrower and based on
assumptions believed by Borrower to be reasonable.




          SECTION 3.05 Properties.




          (a) Generally. Each Company has good and valid 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




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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 written 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 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
Intellectual Property necessary for the conduct of its business as currently conducted, 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. To each Loan Party’s best knowledge, on and as
of the date hereof, 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 in any material respect, 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 Borrower and
their jurisdictions of organization




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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. 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.




          (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 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(a) . There are no actions, suits 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 agreements (other than leases of Real Property set forth on Schedule 8(a) or
8(b) to the Perfection Certificate dated the Closing Date) to which any Company 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




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copies of all
such material agreements, 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.




          SECTION 3.12 Use of Proceeds. Borrower will use the proceeds of (a) the Term Loans to
finance a portion of the Acquisition consideration and pay related fees, commissions and expenses
and (b) the Revolving Loans and Swingline Loans after the Closing Date for working capital and
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 material Taxes (whether or not shown on any Tax Return) due and payable, collectible
or remittable by it and all assessments received by it, except Taxes 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. Each Company has made adequate provision in accordance
with GAAP for all material 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 6662(d)(2)(C)(ii) of the Code, or has ever “participated” in
a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4 that has not
been properly disclosed pursuant to such Regulation, 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.





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          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
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. The present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $250,000 the fair market value of
the property of all such underfunded Plans. 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, is no
greater than $250,000, all of which would be paid by the Companies prior to any such withdrawal.




          To the extent applicable, each Foreign Plan has been maintained in substantial compliance with
its terms and with the requirements of any and all applicable Requirements of Law and has been
maintained, where required, in good standing with applicable regulatory authorities. No Company
has incurred any material obligation in connection with the termination of or withdrawal from any
Foreign Plan. The present value of the accrued benefit liabilities (whether or not vested) under
each Foreign Plan which is funded, determined as of the end of the most recently ended fiscal year
of the respective Company on the basis of actuarial assumptions, each of which is reasonable, did
not exceed the




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current value of the property of such Foreign Plan, and for each Foreign Plan which
is not funded, the obligations of such Foreign Plan are properly accrued.




          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, to the Companies’ best knowledge, 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;




     (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 to
the operations of the Companies, and there are no actions, activities, circumstances,
conditions, events or incidents that could reasonably be expected to 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



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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 Administrative Agent and its counsel 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.




          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, to the extent filing such document in
such offices can perfect a security interest in Intellectual Property registered with such offices,
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




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Trademark Office or Copyrights (as defined in such Security
Agreement) and/or Trademarks (as defined in the Security Agreement) issued, 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.




          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. (a) 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.





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          (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;




     (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; or




     (vi) any other person with whom U.S. persons may not transact or deal under the
provisions of 31 C.F.R Chapter V or any legal restriction, including legislation, Executive
Orders or regulations, administered by OFAC.



          (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.




          SECTION 3.23 Absence of Governmental Prohibition or Restraint. There is no
determination, ruling, decision, decree or order of any court or Governmental Authority of
competent jurisdiction that shall prohibit or otherwise restrain any Company 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.




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




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Bank and to the Administrative Agent 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) Officers’ 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 Administrative Agent shall have received and be satisfied with the final
structure, terms and conditions of the Acquisition Documents.




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




     (iii) The Lenders shall be satisfied with the management, capitalization, the terms and
conditions of any equity arrangements and the corporate or other organizational structure of
the Companies (after giving effect to the Transactions) and any indemnities, employment and
other arrangements entered into in connection with the Transactions.



          (e) Financial Statements; Pro Forma Balance Sheet; Projections. The Lenders shall
have received and shall be satisfied with the form and substance of the financial statements
described in




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Section 3.04 and with the forecasts of the financial performance of Borrower
and its Subsidiaries prepared on (i) an annual basis through December 31, 2012 and (ii) a quarterly
basis through December 31, 2007.




          (f) Indebtedness and Minority Interests. 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 Indebtedness
listed on Schedule 6.01(b) and (iii) 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 Arranger, the Lenders and the Issuing Bank, a favorable written
opinion of (i) Greenberg Traurig, LLP, 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 M 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 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 N, dated the Closing Date and signed by the chief
financial officer of Borrower.




          (i) Requirements of Law. The Lenders shall be satisfied that the Borrowers, 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 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 Borrower and its
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 Arranger 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
Latham & Watkins 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.




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





     (i) all certificates, agreements or instruments representing or evidencing the
Securities Collateral accompanied by instruments of transfer and stock powers undated and
endorsed in blank;




     (ii) the Intercompany Note executed by and among the Borrower and each of its
Subsidiaries, accompanied by instruments of transfer undated and endorsed in blank;




     (iii) 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);




     (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 or appropriate or, in the opinion of the Collateral Agent, desirable to perfect
the Liens created, or purported to be created, by the Security Documents and, with respect
to all UCC financing statements required to be filed pursuant to the Loan Documents,
evidence satisfactory to the Administrative Agent that Borrower has retained, at its sole
cost and expense, a service provider acceptable to the Administrative Agent for the tracking
of all such financing statements and notification to the Administrative Agent, of, among
other things, the upcoming lapse or expiration thereof;




     (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 property of
any Loan Party is located and the state and county jurisdictions in which any Loan Party is
organized or maintains its principal place of business and such other searches that the
Collateral Agent deems necessary or appropriate, none of which encumber the 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) Real Property Requirements. The Collateral Agent shall have received:





     (i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent,
for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party
that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in
form for recording in the recording office of each applicable political subdivision where
each such Mortgaged Property is situated, together with such certificates, affidavits,
questionnaires or returns as shall be required in connection with the recording or filing
thereof to create a lien under applicable Requirements of Law, and such financing statements
and any other instruments



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necessary to grant a mortgage lien under the laws of any
applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory
to Collateral Agent;




     (ii) with respect to each Mortgaged Property, such consents, approvals, amendments,
supplements, estoppels, tenant subordination agreements or other instruments as necessary to
consummate the Transactions or as shall reasonably be deemed necessary by the Collateral
Agent in order for the owner of the fee interest constituting such Mortgaged Property to
grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;




     (iii) with respect to each Mortgage, except to the extent set forth on Schedule
5.14, a mortgagee’s policy of title insurance (or marked up unconditional signed title
insurance commitment or pro forma for such insurance 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
107.5% of the fair market value of such Mortgaged Property and fixtures, which fair market
value is set forth on Schedule 4.01(o)(iii), which policy (or marked up
unconditional signed title insurance commitment or pro forma for such insurance having the
effect of a policy of title insurance) (each, a “Title Policy”) 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) name the Collateral Agent and each of the other Secured Parties as
insureds thereunder, (D) be in the form of ALTA Loan Policy — 1970 (Amended 10/17/70 and
10/17/84) (or equivalent policies), (E) 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),
(F) 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) and affirmative coverage as shall be 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/future
advance, 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), and (G) contain no exceptions to
title other than exceptions acceptable to the Collateral Agent;




     (iv) with respect to each Mortgaged Property, such affidavits, certificates,
information (including financial data) and instruments of indemnification (including a
so-called “gap” indemnification) as shall be reasonably required to induce the Title Company
to issue the Title Policy/ies and endorsements contemplated above;




     (v) evidence reasonably acceptable to the Collateral Agent of payment by Borrower of
all Title Policy premiums, search and examination charges, escrow charges and related
charges, mortgage recording taxes, fees, charges, costs and expenses required for the
recording of the Mortgages and issuance of the Title Policies referred to above;




     (vi) a copy of all recorded documents referred to, or listed as exceptions to title, in
the Title Policies referred to in clause (iii) above and a copy of all other material
documents affecting the Mortgaged Property;




     (vii) with respect to each Real Property or Mortgaged Property, copies of all Leases in
which Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to



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possessory interests, if any. To the extent any of the foregoing affect any Mortgaged
Property, such agreement shall be subordinate to the Lien of the Mortgage to be recorded
against such Mortgaged Property, either expressly by its terms or pursuant to a
subordination, non-disturbance and attornment agreement, and shall otherwise be reasonably
acceptable to the Collateral Agent;




     (viii) with respect to each Mortgaged Property, each Company shall have made all
notifications, registrations and filings, to the extent required by, and in accordance with,
all Governmental Real Property Disclosure Requirements applicable to such Mortgaged
Property;




     (ix) Surveys with respect to each Mortgaged Property; provided, however, no Loan Party
shall be required to deliver any surveys not otherwise available to or in a Loan Party’s
possession prior to the date hereof. No new Surveys with respect to any Mortgaged
Property will be required as a condition to the initial Credit Extension; and




     (x) a completed Federal Emergency Management Agency Standard Flood Hazard Determination
with respect to each Mortgaged Property.



          (p) Insurance. The Administrative Agent shall have received a copy of, or a
certificate as to coverage under, the insurance policies required by Section 5.04 and the
applicable provisions of the Security Documents, each of which shall be endorsed or otherwise
amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as
applicable) and shall name the Collateral Agent, and each of the other Secured Parties, as
additional insureds, in form and substance reasonably satisfactory to the Administrative Agent.




          (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 Leverage Ratio. The ratio of (x) Consolidated Indebtedness of Borrower
and its Subsidiaries as of the Closing Date after giving effect to the Transactions to (y) the pro
forma Consolidated EBITDA of Borrower and its Subsidiaries for the twelve-month period ending
September 30, 2006 (calculated in a manner acceptable to the Arranger), shall not be greater than
2.75 to 1.0.




          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) or, in the case of the Borrowing
of a Swingline Loan, the Swingline Lender and the Administrative Agent shall have received a
Borrowing Request as required by Section 2.17(b).




          (b) No Default. Borrower and each other Loan Party shall be in compliance in all
material respects with all the terms and provisions set forth herein and in each other Loan
Document on




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its part to be observed or performed, and, at the time of and 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 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 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 90 days after the
end of each fiscal year, beginning with the fiscal year ending December 31, 2006, (i) the
consolidated balance sheet of Borrower 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, all prepared in accordance with Regulation S-X and accompanied by an opinion of KPMG 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




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condition, results of operations and cash flows of
Borrower 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 (A) statement of
income items and Consolidated EBITDA of Borrower for such fiscal year, showing variance, by dollar
amount and percentage, from amounts for the previous fiscal year and budgeted amounts and (B) key
operational information and statistics for such fiscal year consistent with internal and
industry-wide reporting standards as set forth on Schedule 5.01(a), (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 Borrower for such fiscal year, as
compared to amounts for the previous fiscal year and budgeted amounts and (iv) separate
consolidating balance sheet of Borrower for such fiscal year and related statements of income and
cash flows separating out Borrower, the Guarantors and Subsidiaries of the Borrower that are not
Guarantors, prepared in a manner reasonably acceptable to the Administrative Agent;




          (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 September 30, 2006, (i) the consolidated balance sheet of Borrower 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, all prepared in accordance with Regulation S-X and 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
Borrower 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 (A) statement of income items and
Consolidated EBITDA of Borrower 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 (B) key operational information and
statistics for such fiscal quarter and for the then elapsed portion of the fiscal year consistent
with internal and industry-wide reporting standards as set forth on Schedule 5.01(b), (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 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, and (iv) separate consolidating balance sheet of
Borrower for such fiscal quarter and the then elapsed portion of the fiscal year and related
statements of income and cash flows separating out Borrower, the Guarantors and Subsidiaries of the
Borrower that are not Guarantors, prepared in a manner reasonably acceptable to the Administrative
Agent;




          (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 fiscal quarter ending September 30, 2006, setting forth computations in reasonable detail
reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants
contained in Sections 6.07(f) and 6.10 and, concurrently with any delivery of
financial statements under Section 5.01(a) above, 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




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of its regular audit of the financial statements of Borrower 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;




          (d) Financial Officer’s Certificate Regarding Collateral. Concurrently with any
delivery of financial statements under Section 5.01(a), a 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) Public Reports. Promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by any Company with the
Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or distributed to holders
of its Indebtedness pursuant to the terms of the documentation governing such Indebtedness (or any
trustee, agent or other representative therefor), as the case may be;




          (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 60 days after the beginning of each fiscal year, a budget for
Borrower in form reasonably satisfactory to the Administrative Agent, but to include balance
sheets, statements of income and sources and uses of cash, for (i) each month of such fiscal year
prepared in detail and (ii) each fiscal year thereafter, through and including the fiscal year in
which the Final Maturity Date occurs, prepared in summary form, in each case, with appropriate
presentation and discussion of the principal assumptions upon which such budgets are based,
accompanied by the statement of a Financial Officer of Borrower to the effect that the budget of
Borrower 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 any Lender may reasonably request.




          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):




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          (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 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;




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




          (d) the occurrence of a material Casualty Event; 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, and
Intellectual Property 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
obligations under all Leases and Transaction Documents; and at all times maintain, preserve and
protect all property material to the conduct of such business and keep such property in good
repair, working order and condition (other than wear and tear occurring in the ordinary course of
business) and from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times; 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.





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          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 (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, (v) worker’s
compensation insurance and such other insurance as may be required by any Requirement of Law and
(vi) such other insurance against risks as the Administrative Agent may from time to time
reasonably require (such policies to be in such form and amounts and having such coverage as may be
reasonably satisfactory to the Administrative Agent and the Collateral Agent); provided that with
respect to physical hazard insurance, neither the Collateral Agent nor the applicable Company shall
agree to the adjustment of any claim thereunder without the consent of the other (such consent not
to be unreasonably withheld or delayed); provided, further, that no consent of any Company shall be
required during an Event of Default.




          (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 30 days after receipt by the Collateral Agent of written notice thereof,
(ii) name the Collateral Agent as mortgagee (in the case of property insurance), (iii) name the
Collateral Agent and each other Secured Party as additional insured (in the case of liability
insurance) or loss payee (in the case of property insurance), as applicable, (iv) if reasonably
requested by the Collateral Agent, include a breach of warranty clause and (v) be reasonably
satisfactory in all other respects to the Collateral Agent.




          (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) Flood Insurance. With respect to each Mortgaged Property, obtain flood insurance
in such total amount as the Administrative Agent or the Required Lenders may from time to time
require, if at any time the area in which any improvements located on any Mortgaged Property is
designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), and otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973, as amended from time to time.




          (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,




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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 material obligations
promptly and in accordance with their terms and pay and discharge promptly when due (subject, where
applicable, to specified grace periods) 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, could reasonably be expected to 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 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 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) Comply in all material respects with the
applicable provisions of ERISA and the Code 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
$500,000 or the imposition of a Lien, 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.




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          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. Each Company 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 as often as reasonably requested (but limited to once per calendar
year except while a Default or Event of Default is continuing) and to make extracts from and copies
of such financial records, and permit any representatives designated by the Administrative Agent or
any Lender 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 meeting (at a mutually agreeable location, venue
and time or, at the option of the Administrative Agent, by conference call at a mutually agreeable
time, the reasonable costs of such venue or call to be paid by Borrower) with all Lenders who
choose to attend such meeting, at which meeting shall be reviewed the financial results of the
previous fiscal year and the financial condition of the Companies and the budgets presented for the
current fiscal year of the Companies.




          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 Commercial Letter of Credit or Standby Letter of Credit, as the case
may be.




          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 45 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 reasonably acceptable to the Administrative Agent that result
in at




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least 40% of the aggregate principal amount of Borrower’s Consolidated Indebtedness other
than Revolving Loans being effectively subject to a fixed or maximum interest rate acceptable to
the Administrative Agent.




          SECTION 5.11 Additional Collateral; Additional Guarantors.




          (a) Subject to this Section 5.11, with respect to any property created, developed or
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) (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 and the
filing of short form security agreements or other documents with the United States Patent &
Trademark Office or the United States Copyright Office 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
reasonably require to confirm the validity, perfection and priority of the Lien of the Security
Documents on such after-acquired properties.




          (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 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 a material 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 Administrative Agent; 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 65% of the total voting
power of all outstanding Voting Stock of such Subsidiary and (B) 100% of the




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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 (i) 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 $500,000, and (ii) unless the Collateral
Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has
a fair market value of at least $500,000, in each case, 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 (only with respect to Real Property acquired or leased after the Closing Date) and local
counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent) in respect of such Mortgage) and deliver to the Collateral Agent all documents
required to be delivered with respect to each Mortgaged Property pursuant to Section 4.01(o) hereof
as well as a Survey with respect to each new Mortgaged Property if requested by the Collateral
Agent in its sole discretion.




          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




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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 Officers’ 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.




          (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 and a certificate of a Financial Officer and the chief legal officer of Borrower
certifying that all UCC financing statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction necessary to protect and
perfect the security interests and Liens under the Security Documents for a period of not less than
18 months after the date of such certificate (except as noted therein with respect to any
continuation statements to be filed within such period).




          SECTION 5.14 Post-Closing Collateral Matters. Execute and deliver the documents and
complete the tasks set forth on Schedule 5.14, in each case within the time limits
specified on such schedule.




          SECTION 5.15 Affirmative Covenants with Respect to Leases. With respect to each Lease, the respective Loan Party shall perform all the obligations
imposed upon the landlord under such Lease and 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 and
all amounts drawn




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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 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;




          (d) Indebtedness permitted by Section 6.04(f);




          (e) Indebtedness in respect of Purchase Money Obligations and Capital Lease Obligations, and
refinancings or renewals thereof, in an aggregate amount not to exceed $10.0 million at any time
outstanding;




          (f) Indebtedness incurred by Foreign Subsidiaries in an aggregate amount not to exceed $7.5
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 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 five Business Days of incurrence;





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




          (k) unsecured Indebtedness of any Company in an aggregate amount not to exceed $20.0 million
at any time outstanding; and




          (l) (i) unsecured Indebtedness incurred in connection with any Permitted Acquisition and (ii)
Indebtedness (other than Purchase Money Obligations and Capital Lease Obligations) of any person
that becomes a Guarantor after the date hereof pursuant to a Permitted Acquisition, which
Indebtedness exists at the time such person becomes a Subsidiary and is not created in
contemplation of, or in connection with, such person becoming a Subsidiary and any extensions,
renewals, refinancings or replacements of such Indebtedness, which extensions, renewals,
refinancings or replacements (A) are on terms and conditions (including the terms and conditions of
any guarantee or other credit support of such Indebtedness) not less favorable in any material
respect to Borrower and its Subsidiaries or the Lenders than such Indebtedness being extended,
renewed, refinanced or replaced, (B) do not add as obligor or guarantor any person that would not
have been an obligor under the Indebtedness being extended, renewed, refinanced or replaced, (C) do
not result in a greater principal amount or shorter remaining average life to maturity than the
Indebtedness being extended, renewed, refinanced or replaced and (D) are not effected at any time
when a Default or Event of Default has occurred and is continuing or would result therefrom;
provided that Indebtedness under clauses (i) and (ii) above, together with any such extensions,
renewals, refinancings or replacements thereof, shall not exceed $10.0 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 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;





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          (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 and in
respect of which such Company shall in good faith be prosecuting an appeal or proceedings for
review in respect of which there shall be secured a subsisting stay of execution pending such
appeal or proceedings and, 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;




          (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 Liens are
not imposed by Requirements of Law, such Liens shall in no event encumber any property other than
cash and Cash Equivalents, (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 and (iv) the aggregate amount of deposits at any time pursuant to clause (y) and
clause (z) of this paragraph (f) shall not exceed $1,000,000 in the aggregate;




          (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 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;





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          (i) Liens securing Indebtedness incurred pursuant to Section 6.01(e); 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) non-exclusive licenses of Intellectual Property granted by any Company in the ordinary
course of business consistent with past practice 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;




          (o) Liens securing Indebtedness incurred pursuant to Section 6.01(f); provided that
(i) such Liens do not extend to, or encumber, property which constitutes Collateral and (ii) such
Liens extend only to the property (or Equity Interests) of the Foreign Subsidiary incurring such
Indebtedness;




          (p) Liens incurred in the ordinary course of business of any Company with respect to
obligations that do not in the aggregate exceed $5.0 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; and




          (q) Liens granted to a vendor of Borrower arising from such vendor granting Borrower use of
certain equipment in exchange for Borrower’s purchase of other goods provided by such vendor;
provided that any such Liens attach only to the property that such vendor is allowing Borrower to
use and that such obligations do not in the aggregate exceed $5.0 million.




provided, however, that no consensual Liens shall be permitted to exist, directly or indirectly, on
any Securities Collateral, other than Liens granted pursuant to the Security Documents.




          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




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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 Investments, Loans 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,
utility and other similar deposits in the ordinary course of business;




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




          (e) loans and advances to directors, employees and officers of Borrower and its Subsidiaries
for bona fide business purposes, in aggregate amount not to exceed $2.0 million at any time
outstanding;




          (f) Investments (i) by any Company in Borrower or any Guarantor and (ii) by a Subsidiary that
is not a Guarantor in any other Subsidiary that is not a 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; and




          (i) other Investments in an aggregate amount not to exceed $15.0 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 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:





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     (a) the Transactions as contemplated by the Transaction Documents;




     (b) Asset Sales in compliance with Section 6.06;




     (c) acquisitions in compliance with Section 6.07;




     (d) any Company may merge or consolidate with or into Borrower or any Guarantor (as
long as Borrower is the surviving person in the case of any merger or consolidation
involving Borrower and a Guarantor is the surviving person and remains a Wholly Owned
Subsidiary of Borrower 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; and




     (e) 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.



          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 reasonably 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 $45.0 million in any four
consecutive fiscal quarters of Borrower, but, in any event, shall not exceed $15.0 million
with respect to any single Asset Sale;




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




     (d) non-exclusive licenses of Intellectual Property granted by any Company in the
ordinary course of business consistent with past practice and not interfering in any
material respect with the ordinary conduct of business of the Companies;




     (e) the Transactions as contemplated by the Transaction Documents;




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




     (g) Investments in compliance with Section 6.04;



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     (h) the sale, conveyance, lease, assignment, transfer or other disposition by any Loan
Party (other than Borrower) or any Loan Party’s Subsidiaries of its business or assets to
another Loan Party; and




     (i) the sale or other disposition of the facilities listed on Schedule 6.06(i),
provided that the Net Cash Proceeds thereof are applied in accordance with Section 2.10(c).



          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 its Subsidiaries shall be permitted to the
extent permitted by Section 6.10(e);




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




     (c) Investments in compliance with Section 6.04;




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




     (e) the Transactions as contemplated by the Transaction Documents;




     (f) Permitted Acquisitions; and




     (g) 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; and




     (b) payments to Borrower to permit Borrower, and the subsequent use of such payments by
Borrower, to repurchase or redeem Qualified Capital Stock of Borrower 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 or pursuant to a stock
repurchase



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program where Borrower is repurchasing shares in the open market; provided that
the aggregate cash consideration paid for all such redemptions and payments shall not
exceed, in any fiscal year, $5.0 million.



          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
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) and (f);




     (c) reasonable and customary director, officer and employee compensation (including
bonuses) and other benefits (including retirement, health, stock option and other benefit
plans) and indemnification arrangements, in each case approved by the Compensation Committee
of the Board of Directors of Borrower or 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;




     (e) sales of Qualified Capital Stock of Borrower to Affiliates of Borrower not
otherwise prohibited by the Loan Documents and the granting of registration and other
customary rights in connection therewith;




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




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



          SECTION 6.10 Financial Covenants. (a) Maximum Total Leverage Ratio.
Permit the Total Leverage Ratio, at any date during any period set forth in the table below, to
exceed the ratio set forth opposite such period in the table below:




	 	 	 	 	 
	                   Test Period	 	Leverage Ratio	 
	Closing Date — March 31, 2007
	 	 	1.85 to 1.00	 
	April 1, 2007 — June 30, 2007
	 	 	1.65 to 1.00	 
	July 1, 2007 — September 30, 2007
	 	 	1.50 to 1.00	 
	October 1, 2007 — December 31,
2007
	 	 	1.50 to 1.00	 
	January 1, 2008 — March 31, 2008
	 	 	1.20 to 1.00	 
	April 1, 2008 — June 30, 2008
	 	 	1.20 to 1.00	 
	July 1, 2008 — September 30, 2008
	 	 	1.20 to 1.00	 






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	Test
Period
	 	Leverage Ratio	 
	October 1, 2008 — December 31,
2008
	 	 	1.20 to 1.00	 
	January 1, 2009 — March 31, 2009
	 	 	1.00 to 1.00	 
	April 1, 2009 — June 30, 2009
	 	 	1.00 to 1.00	 
	July 1, 2009 — September 30, 2009
	 	 	1.00 to 1.00	 
	October 1, 2009 — December 31,
2009
	 	 	1.00 to 1.00	 
	January 1, 2010 — March 31, 2010
	 	 	1.00 to 1.00	 
	April 1, 2010 — June 30, 2010
	 	 	1.00 to 1.00	 
	July 1, 2010 — September 30, 2010
	 	 	1.00 to 1.00	 
	October 1,
2010 — December 31,
2010
	 	 	1.00 to 1.00	 
	January 1, 2011 and thereafter
	 	 	1.00 to 1.00	 






          (b) Minimum Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio,
for any Test Period ending during any period set forth in the table below, to be less than the
ratio set forth opposite such period in the table below:




	 	 	 
	 	 	Interest Coverage
	Test
Period
	 	Ratio
	Closing Date — March 31, 2007

	 	5.75 to 1.00
	April 1, 2007 — June 30, 2007

	 	6.25 to 1.00
	July 1, 2007 — September 30, 2007

	 	7.25 to 1.00
	October 1, 2007 — December 31,
2007

	 	8.25 to 1.00
	January 1, 2008 — March 31, 2008

	 	10.50 to 1.00
	April 1, 2008 — June 30, 2008

	 	10.50 to 1.00
	July 1, 2008 — September 30, 2008

	 	10.50 to 1.00
	October 1, 2008 — December 31,
2008

	 	10.50 to 1.00
	January 1, 2009 — March 31, 2009

	 	10.50 to 1.00
	April 1, 2009 — June 30, 2009

	 	10.50 to 1.00
	July 1, 2009 — September 30, 2009

	 	10.50 to 1.00
	October 1, 2009 — December 31,
2009

	 	10.50 to 1.00
	January 1, 2010 — March 31, 2010

	 	10.50 to 1.00
	April 1, 2010 — June 30, 2010

	 	10.50 to 1.00
	July 1, 2010 — September 30, 2010

	 	10.50 to 1.00
	October 1, 2010 — December 31,
2010

	 	10.50 to 1.00
	January 1, 2011 and thereafter

	 	10.50 to 1.00







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          (c) Limitation on Capital Expenditures. Permit the aggregate amount of Capital
Expenditures made in any period set forth below, to exceed the amount set forth opposite such
period below:




	 	 	 	 	 
	Period
	 	Amount (in millions)	 
	January 1, 2007 - December 31, 2007 and each fiscal
year thereafter
	 	$	35.0	 





; provided, however, that (x) if the aggregate amount of Capital Expenditures made in any fiscal
year shall be less than the maximum amount of Capital Expenditures permitted under this Section
6.10(e) for such fiscal year (before giving effect to any carryover), then an amount of such
shortfall not exceeding 50% of such maximum amount may be added to the amount of Capital
Expenditures permitted under this Section 6.10(e) for the immediately succeeding (but not
any other) fiscal year, and (y) in determining whether any amount is available for carryover, the
amount expended in any fiscal year shall first be deemed to be from the amount allocated to such
fiscal year (before giving effect to any carryover).




          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 Indebtedness
outstanding under any Subordinated Indebtedness, except as otherwise permitted by this
Agreement;




     (b) amend or modify, or permit the amendment or modification of, any provision of any
Transaction Document or any document governing any Material Indebtedness in any manner that
is adverse in any material respect to the interests of the Lenders; or




     (c) 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 Equity Interests (including any stockholders’ agreement), 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.



          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) customary provisions
restricting subletting or assignment




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of any lease governing a leasehold interest of a Subsidiary;
(iv) customary provisions restricting assignment of any agreement entered into by a Subsidiary in
the ordinary course of business; (v) any holder of a Lien permitted by Section 6.02
restricting the transfer of the property subject thereto; (vi) 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; (vii) 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;
(viii) 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; (ix) restrictions on cash or other deposits or net
worth imposed by suppliers or landlords under contracts entered into in the ordinary course of
business; (x) 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;
(xi) 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 (xii) 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 clause (vii)
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. With respect to any Subsidiary,
issue any Equity Interest (including by way of sales of treasury stock) or any options or warrants
to purchase, or securities convertible into, any Equity Interest, except (i) for stock splits,
stock dividends and additional issuances of Equity Interests which do not decrease the percentage
ownership of Borrower or any Subsidiaries in any class of the Equity Interest of such Subsidiary;
and (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. 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. 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(f) 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.




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          SECTION 6.15 Business. 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 Lease Obligations. Create, incur, assume or suffer to exist any
obligations as lessee for the rental or hire of real or personal property of any kind under leases
or agreements to lease having an original term of one year or more that would cause the direct and
contingent liabilities of Borrower and its Subsidiaries, on a
consolidated basis, in respect of all such obligations to exceed $5.0 million payable in any
period of 12 consecutive months.




          SECTION 6.19 No Further Negative Pledge. Enter into any agreement, instrument, deed
or lease which 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 and the other Loan
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 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 (5)(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 6.20 Anti-Terrorism Law; Anti-Money Laundering.
 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 6.20).





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          (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 6.21 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.




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

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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;




     (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



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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 and 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.




          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

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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.




          SECTION 7.10 Right of Contribution. Each Guarantor hereby agrees that to the extent
that a Guarantor shall have paid more than its proportionate share of any payment made hereunder,
such Guarantor shall be entitled to seek and receive contribution from and against any other
Guarantor hereunder which has not paid its proportionate share of such payment. Each 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 Guarantor to the Administrative Agent, the Issuing Bank, the Swingline Lender and the
Lenders, and each Guarantor shall remain liable to the Administrative Agent, the Issuing Bank, the
Swingline Lender and the Lenders for the full amount guaranteed by such 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 Term 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



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unremedied
or shall not be waived for a period of 30 days from the date that any Company knew or should
have known of such default;




     (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 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 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 75 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 adequately covered by insurance as to
which a solvent and unaffiliated reputable insurance company has not denied coverage) shall
be rendered against any Company or any combination thereof and the same shall remain
undischarged, unvacated or unbonded for a period of 30 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 or noncompliance with respect to Foreign Plans shall have
occurred that, in the opinion of the Required Lenders, when taken together with all other



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such ERISA Events and noncompliance with respect to Foreign Plans that have occurred, could
reasonably be expected to result in liability of any Company and its ERISA Affiliates in
excess of $2.5 million or in the imposition of a Lien on any properties of a Company;




     (k) any security interest and 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;




     (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;




     (n) there shall have occurred the termination of, or the receipt by any Loan Party of
notice of the termination of, or the occurrence of any event or condition which would, with
the passage of time or the giving of notice or both, constitute an event of default under or
permit the termination of, any one or more material agreements or licenses of any Company;
or




     (o) 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 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
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


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 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 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 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 and Reimbursement Obligations) 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 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.




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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 UBS AG, Stamford Branch, 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 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.




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          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 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




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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
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 Agent or Co-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.




          SECTION 9.09 Withholding Tax. To the extent required by any Requirement of Law, the
Administrative Agent may withhold from any payment to any Lender an amount equivalent to any
applicable withholding tax. If the Internal Revenue Service or any other Governmental Authority
asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or
for the account of any Lender because the appropriate form was not delivered or was not properly
executed or because such Lender failed to notify the Administrative Agent of a change in
circumstance that rendered the exemption from, or reduction of, withholding tax ineffective or for
any other reason, such Lender shall indemnify the Administrative Agent fully for all amounts paid,
directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or
interest and together with all expenses (including legal expenses, allocated internal costs and
out-of-pocket expenses) incurred.




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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:


TTM Technologies, Inc.

2630 S. Harbor Blvd.

Santa Ana, CA 92704

Attention: Steven W. Richards

Telecopier No.: (714) 241-9723

Email: srichards@ttmtech.com



with a copy (which shall not constitute notice) to:



Greenberg Traurig, LLP

2375 East Camelback Road

Suite 700

Phoenix, AZ 85016

Attention: Karl A. Freeburg, Esq.





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


UBS AG, Stamford Branch

677 Washington Boulevard

Stamford, Connecticut 06901

Attention: BPS Agency Dept / James Gabal

Telecopier No.: (203) 719-4176 / (203) 719-3180

Email: DL-UBSAgency@ubs.com





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




     (iv) if to the Swingline Lender, to it at:


UBS Loan Finance LLC

677 Washington Boulevard

Stamford, Connecticut 06901

Attention: BPS Agency Dept / James Gabal

Telecopier No.: (203) 719-4176 / (203) 719-3180

Email: DL-UBSAgency@ubs.com




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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 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 SH-BPSIntralinks@ubs.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,

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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; Amendments.




          (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 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 Section 10.02(c) and (d), 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 Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered into by the
Administrative Agent,

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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 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 Term 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 all or substantially all of the 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;




     (vii) release all or a substantial portion 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



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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(h), 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
Term Loans may be included on a pro rata basis in the various prepayments required pursuant
to Section 2.10(h));




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




     (xiii) 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;




     (xiv) 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;




     (xv) change or waive any provision hereof relating to Swingline Loans (including the
definition of “Swingline Commitment”), without the written consent of the Swingline Lender;
or




     (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 Arranger) may not be
effected without the written consent of the Arranger.




          (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

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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.




          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, (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.




          (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




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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 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, the Swingline Lender 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, the Swingline Lender 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), the
Swingline Lender 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), the Swingline Lender 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 Term 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 3
Business Days after demand therefor.




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          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 Borrower may not 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, the Swingline 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.




          (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 Arranger 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 Term Loans and/or Term 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
(provided that only one such fee shall be payable in the event of contemporaneous
assignments to or by two or more Approved Funds), and the Eligible Assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.



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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 Stamford, Connecticut 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 time to time (the “Register”). The entries in the
Register shall be conclusive, and Borrower, the Administrative Agent, the Issuing Bank and the
Lenders may treat each person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for
inspection by Borrower, the Issuing Bank, the Collateral Agent, the Swingline Lender 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, the Issuing Bank or the Swingline Lender 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.




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          (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.




          (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 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 or syndication rights for the benefit of the
Syndication 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

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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 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.





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          (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 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 Participant in, or any prospective assignee of or Participant
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 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

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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, 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;




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          (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.




	 	 	 	 	 
	BORROWER:	TTM TECHNOLOGIES, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	GUARANTORS:	POWER CIRCUITS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TTM ADVANCED CIRCUITS, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TTM PRINTED CIRCUIT GROUP, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TTM TECHNOLOGIES INTERNATIONAL, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



S-1









 








	 	 	 	 	 
	 	UBS SECURITIES LLC, as Arranger

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UBS AG, STAMFORD BRANCH, as Issuing Bank, Administrative Agent and Collateral Agent

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UBS LOAN FINANCE LLC, as Swingline Lender

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-2









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as Co-Documentation Agent

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-3









 






	 	 	 	 	 



	 	 	 	 	 
	 	COMERICA BANK, as Co-Documentation Agent

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-4









 






	 	 	 	 	 



	 	 	 	 	 
	 	SILICON VALLEY BANK, as Co-Documentation Agent

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-5









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as Syndication Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




S-6









 








Annex I




Applicable Margin




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total	 	Revolving Loans	 	Term Loans
	Leverage Ratio	 	Eurodollar	 	ABR	 	Eurodollar	 	ABR
	Level I
	 	 	2.25	%	 	 	1.25	%	 	 	2.25	%	 	 	1.25	%
	>1.3:1.0

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	
Level II
	 	 	2.00	%	 	 	1.00	%	 	 	2.25	%	 	 	1.25	%
	£1.3:1.0 but
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	>0.75:1.0
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Level III
	 	 	1.75	%	 	 	0.75	%	 	 	2.25	%	 	 	1.25	%
	£0.75:1.0
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






          Each change in the Applicable Margin resulting from a change in the Total Leverage Ratio
shall be effective with respect to all Loans and Letters of Credit outstanding on and after the
date of delivery to the Administrative Agent of the financial statements and certificates required
by Section 5.01(a) or (b) and Section 5.01(c), respectively, indicating
such change until the date immediately preceding the next date of delivery of such financial
statements and certificates indicating another such change. Notwithstanding the foregoing, the
Total Leverage Ratio shall be deemed to be in Level I (i) from the Closing Date to the date of
delivery to the Administrative Agent of the financial statements and certificates required by
Section 5.01(a) or (b) and Section 5.01(c) for the fiscal period ended at
least six months after the Closing Date, (ii) at any time during which Borrower has failed to
deliver the financial statements and certificates required by Section 5.01(a) or
(b) and Section 5.01(c), respectively, and (iii) at any time during the existence
of an Event of Default.





 









 








Annex II




Amortization Table




	 	 	 	 	 
	Date	 	Term Loan Amount
	March 31, 2007

	 	$	500,000	 
	June 30, 2007

	 	$	500,000	 
	September 30, 2007

	 	$	500,000	 
	December 31, 2007

	 	$	500,000	 
	March 31, 2008

	 	$	500,000	 
	June 30, 2008

	 	$	500,000	 
	September 30, 2008

	 	$	500,000	 
	December 31, 2008

	 	$	500,000	 
	March 31, 2009

	 	$	500,000	 
	June 30, 2009

	 	$	500,000	 
	September 30, 2009

	 	$	500,000	 
	December 31, 2009

	 	$	500,000	 
	March 31, 2010

	 	$	500,000	 
	June 30, 2010

	 	$	500,000	 
	September 30, 2010

	 	$	500,000	 
	December 31, 2010

	 	$	500,000	 
	March 31, 2011

	 	$	500,000	 
	June 30, 2011

	 	$	500,000	 
	September 30, 2011

	 	$	500,000	 
	December 31, 2011

	 	$	500,000	 
	March 31, 2012

	 	$	500,000	 
	June 30, 2012

	 	$	500,000	 
	September 30, 2012

	 	$	500,000	 
	Term Loan Maturity Date

	 	$	188,500,000