Exhibit
10.1


 


 


CREDIT AGREEMENT


 


 


DATED AS OF MARCH 1, 2005


 


among


 


HEXCEL CORPORATION,


 


as Borrower,


 


 


THE LENDERS LISTED HEREIN,


 


as Lenders,


 


 


BANC OF AMERICA SECURITIES LLC,


 


as Syndication Agent and Joint Lead Arranger,


 


 


DEUTSCHE BANK SECURITIES INC.,


 


as Sole Book Manager and Joint Lead Arranger,


 


 


DEUTSCHE BANK TRUST COMPANY AMERICAS,


 


as Administrative Agent


 


and


 


CREDIT SUISSE FIRST BOSTON and


 


WACHOVIA BANK, NATIONAL ASSOCIATION


 


as Documentation Agents


 





















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page No.

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINITIONS

  	
  2

  
	
  1.1

  	
  Certain Defined Terms

  	
  2

  
	
  1.2

  	
  Accounting
  Terms; Utilization of GAAP for Purposes of Calculations Under Agreement

  	
  32

  
	
  1.3

  	
  Other
  Definitional Provisions and Rules of Construction

  	
  33

  
	
   

  	
   

  	
   

  
	
  SECTION
  2.

  	
  AMOUNTS
  AND TERMS OF COMMITMENTS AND LOANS

  	
  33

  
	
  2.1

  	
  Commitments;
  Making of Loans; the Register; Optional Notes

  	
  33

  
	
  2.2

  	
  Interest on the
  Loans

  	
  40

  
	
  2.3

  	
  Fees

  	
  45

  
	
  2.4

  	
  Repayments,
  Prepayments and Reductions of Revolving Loan Commitment Amount; General
  Provisions Regarding Payments; Application of Proceeds of Collateral and
  Payments Under Subsidiary Guaranty

  	
  46

  
	
  2.5

  	
  Use of Proceeds

  	
  54

  
	
  2.6

  	
  Special
  Provisions Governing Eurodollar Rate Loans

  	
  54

  
	
  2.7

  	
  Increased
  Costs; Taxes; Capital Adequacy

  	
  57

  
	
  2.8

  	
  Statement of
  Lenders; Obligation of Lenders and Issuing Lenders to Mitigate

  	
  61

  
	
  2.9

  	
  Replacement of
  a Lender

  	
  62

  
	
  2.10

  	
  Incremental
  Term Loan Commitments and Revolving Loan Commitments

  	
  63

  
	
   

  	
   

  	
   

  
	
  SECTION
  3.

  	
  LETTERS
  OF CREDIT

  	
  65

  
	
  3.1

  	
  Issuance of
  Letters of Credit and Lenders’ Purchase of Participations Therein

  	
  65

  
	
  3.2

  	
  Letter of
  Credit Fees

  	
  67

  
	
  3.3

  	
  Drawings and
  Reimbursement of Amounts Paid Under Letters of Credit

  	
  68

  
	
  3.4

  	
  Obligations
  Absolute

  	
  70

  
	
  3.5

  	
  Nature of
  Issuing Lenders’ Duties

  	
  71

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.

  	
  CONDITIONS
  TO LOANS AND LETTERS OF CREDIT

  	
  72

  
	
  4.1

  	
  Conditions to
  Term Loans and Initial Revolving Loans and Swing Line Loans

  	
  72

  
	
  4.2

  	
  Conditions to
  Final Redemption Date Tranche B Term Loans

  	
  79

  



 


i





















 


	
  4.3

  	
  Conditions to
  All Loans

  	
  80

  
	
  4.4

  	
  Conditions to
  Letters of Credit

  	
  81

  
	
   

  	
   

  	
   

  
	
  SECTION
  5.

  	
  COMPANY’S
  REPRESENTATIONS AND WARRANTIES

  	
  81

  
	
  5.1

  	
  Organization,
  Powers, Qualification, Good Standing, Business and Subsidiaries

  	
  81

  
	
  5.2

  	
  Authorization
  of Borrowing, etc

  	
  82

  
	
  5.3

  	
  Financial
  Condition

  	
  83

  
	
  5.4

  	
  No Material
  Adverse Change; No Restricted Junior Payments

  	
  83

  
	
  5.5

  	
  Title to
  Properties; Liens; Real Property; Intellectual Property

  	
  83

  
	
  5.6

  	
  Litigation;
  Adverse Facts

  	
  84

  
	
  5.7

  	
  Payment of
  Taxes

  	
  85

  
	
  5.8

  	
  Performance of
  Agreements; Material Contracts

  	
  85

  
	
  5.9

  	
  Governmental
  Regulation

  	
  85

  
	
  5.10

  	
  Securities
  Activities

  	
  85

  
	
  5.11

  	
  Employee Benefit
  Plans

  	
  86

  
	
  5.12

  	
  Certain Fees

  	
  86

  
	
  5.13

  	
  Environmental
  Protection

  	
  87

  
	
  5.14

  	
  Solvency

  	
  87

  
	
  5.15

  	
  Matters
  Relating to Collateral; Absence of Third-Party Filings

  	
  88

  
	
  5.16

  	
  Disclosure

  	
  88

  
	
  5.17

  	
  Credit
  Agreement Classification; Subordinated Indebtedness

  	
  88

  
	
  5.18

  	
  Foreign
  Assets Control Regulations, etc.

  	
  88

  
	
   

  	
   

  	
   

  
	
  SECTION
  6.

  	
  COMPANY’S
  AFFIRMATIVE COVENANTS

  	
  89

  
	
  6.1

  	
  Financial
  Statements and Other Reports

  	
  89

  
	
  6.2

  	
  Existence, etc.

  	
  93

  
	
  6.3

  	
  Payment of
  Taxes and Claims; Tax

  	
  93

  
	
  6.4

  	
  Maintenance of
  Properties; Insurance; Application of Net Insurance/ Condemnation Proceeds

  	
  93

  
	
  6.5

  	
  Inspection
  Rights; Lender Meeting

  	
  95

  
	
  6.6

  	
  Compliance with
  Laws, etc.

  	
  96

  
	
  6.7

  	
  Environmental
  Matters

  	
  96

  
	
  6.8

  	
  Execution of
  Subsidiary Guaranty and Personal Property Collateral Documents After the
  Closing Date

  	
  98

  



 


ii





















 


	
  6.9

  	
  Matters
  Relating to Additional Real Property Collateral

  	
  100

  
	
  6.10

  	
  Interest Rate
  Protection

  	
  101

  
	
  6.11

  	
  Deposit
  Accounts, Securities Accounts and Cash Management Systems

  	
  101

  
	
  6.12

  	
  Final
  Redemption Date

  	
  101

  
	
  6.13

  	
  Designation
  of Obligations as “Designated Senior Indebtedness”

  	
  101

  
	
  6.14

  	
  Post-Closing
  Deliveries

  	
  101

  
	
   

  	
   

  	
   

  
	
  SECTION
  7.

  	
  COMPANY’S
  NEGATIVE COVENANTS

  	
  101

  
	
  7.1

  	
  Indebtedness

  	
  102

  
	
  7.2

  	
  Liens and Related
  Matters

  	
  103

  
	
  7.3

  	
  Investments;
  Acquisitions

  	
  105

  
	
  7.4

  	
  Contingent
  Obligations

  	
  108

  
	
  7.5

  	
  Restricted Junior
  Payments

  	
  109

  
	
  7.6

  	
  Financial Covenants

  	
  110

  
	
  7.7

  	
  Restriction on Fundamental
  Changes; Asset Sales

  	
  111

  
	
  7.8

  	
  Consolidated
  Capital Expenditures

  	
  113

  
	
  7.9

  	
  Transactions
  with Shareholders and Affiliates

  	
  113

  
	
  7.10

  	
  Sales and
  Lease-Backs

  	
  114

  
	
  7.11

  	
  Conduct of
  Business

  	
  114

  
	
  7.12

  	
  Amendments of
  Documents Relating to Indebtedness

  	
  114

  
	
  7.13

  	
  Designation
  of “Designated Senior Indebtedness.”

  	
  115

  
	
  7.14

  	
  Fiscal Year

  	
  115

  
	
   

  	
   

  	
   

  
	
  SECTION
  8.

  	
  EVENTS
  OF DEFAULT

  	
  115

  
	
  8.1

  	
  Failure to Make
  Payments When Due

  	
  115

  
	
  8.2

  	
  Default in
  Other Agreements

  	
  115

  
	
  8.3

  	
  Breach of
  Certain Covenants

  	
  115

  
	
  8.4

  	
  Breach of
  Warranty

  	
  116

  
	
  8.5

  	
  Other Defaults
  Under Loan Documents

  	
  116

  
	
  8.6

  	
  Involuntary
  Bankruptcy; Appointment of Receiver, etc.

  	
  116

  
	
  8.7

  	
  Voluntary
  Bankruptcy; Appointment of Receiver, etc.

  	
  117

  
	
  8.8

  	
  Judgments and
  Attachments

  	
  117

  
	
  8.9

  	
  Dissolution

  	
  117

  
	
  8.10

  	
  Employee
  Benefit Plans

  	
  117

  



 


iii





















 


	
  8.11

  	
  Change in
  Control

  	
  117

  
	
  8.12

  	
  Invalidity of
  Loan Documents; Failure of Security; Repudiation of Obligations

  	
  117

  
	
   

  	
   

  	
   

  
	
  SECTION
  9.

  	
  ADMINISTRATIVE
  AGENT

  	
  118

  
	
  9.1

  	
  Appointment

  	
  118

  
	
  9.2

  	
  Powers and
  Duties; General Immunity

  	
  120

  
	
  9.3

  	
  Independent
  Investigation by Lenders; No Responsibility For Appraisal of Creditworthiness

  	
  121

  
	
  9.4

  	
  Right to
  Indemnity

  	
  121

  
	
  9.5

  	
  Resignation of
  Agents; Successor Administrative Agent and Swing Line Lender

  	
  122

  
	
  9.6

  	
  Collateral
  Documents and Guaranties

  	
  123

  
	
  9.7

  	
  Duties of Other
  Agents

  	
  124

  
	
  9.8

  	
  Administrative
  Agent May File Proofs of Claim

  	
  124

  
	
   

  	
   

  	
   

  
	
  SECTION
  10.

  	
  MISCELLANEOUS

  	
  125

  
	
  10.1

  	
  Successors
  and Assigns; Assignments and Participations in Loans and Letters of Credit

  	
  125

  
	
  10.2

  	
  Expenses

  	
  128

  
	
  10.3

  	
  Indemnity

  	
  129

  
	
  10.4

  	
  Set-Off

  	
  130

  
	
  10.5

  	
  Ratable
  Sharing

  	
  131

  
	
  10.6

  	
  Amendments
  and Waivers

  	
  131

  
	
  10.7

  	
  Independence
  of Covenants

  	
  133

  
	
  10.8

  	
  Notices;
  Effectiveness of Signatures

  	
  133

  
	
  10.9

  	
  Survival of
  Representations, Warranties and Agreements

  	
  134

  
	
  10.10

  	
  Failure or
  Indulgence Not Waiver; Remedies Cumulative

  	
  134

  
	
  10.11

  	
  Marshalling;
  Payments Set Aside

  	
  135

  
	
  10.12

  	
  Severability

  	
  135

  
	
  10.13

  	
  Obligations
  Several; Independent Nature of Lenders’ Rights; Damage Waiver

  	
  135

  
	
  10.14

  	
  Intentionally
  Omitted.

  	
  135

  
	
  10.15

  	
  Applicable
  Law

  	
  135

  
	
  10.16

  	
  Construction
  of Agreement; Nature of Relationship

  	
  136

  



 


iv





















 


	
  10.17

  	
  Consent to
  Jurisdiction and Service of Process

  	
  136

  
	
  10.18

  	
  Waiver of
  Jury Trial

  	
  137

  
	
  10.19

  	
  Confidentiality

  	
  137

  
	
  10.20

  	
  Counterparts;
  Effectiveness

  	
  138

  
	
  10.21

  	
  USA Patriot
  Act

  	
  139

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature pages

  	
  S-1

  



 


v





















 


EXHIBITS


 


	
  I

  	
  FORM OF NOTICE OF
  BORROWING

  	
   

  
	
   

  	
   

  	
   

  
	
  II

  	
  FORM OF NOTICE OF
  CONVERSION/CONTINUATION

  	
   

  
	
   

  	
   

  	
   

  
	
  III

  	
  FORM OF REQUEST FOR
  ISSUANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  IV

  	
  FORM OF TRANCHE B TERM
  NOTE

  	
   

  
	
   

  	
   

  	
   

  
	
  V

  	
  FORM OF REVOLVING NOTE

  	
   

  
	
   

  	
   

  	
   

  
	
  VI

  	
  FORM OF SWING LINE NOTE

  	
   

  
	
   

  	
   

  	
   

  
	
  VII

  	
  [INTENTIONALLY OMITTED]

  	
   

  
	
   

  	
   

  	
   

  
	
  VIII

  	
  FORM OF COMPLIANCE
  CERTIFICATE

  	
   

  
	
   

  	
   

  	
   

  
	
  IX

  	
  FORM OF OPINION OF COMPANY
  COUNSEL

  	
   

  
	
   

  	
   

  	
   

  
	
  X

  	
  FORM OF ASSIGNMENT
  AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  XI

  	
  FORM OF FINANCIAL
  CONDITION CERTIFICATE

  	
   

  
	
   

  	
   

  	
   

  
	
  XII

  	
  FORM OF SUBSIDIARY
  GUARANTY

  	
   

  
	
   

  	
   

  	
   

  
	
  XIII

  	
  FORM OF SECURITY AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  XIV

  	
  FORM OF MORTGAGE

  	
   

  



 


vi





















 


SCHEDULES


 


	
  1.1A

  	
  CERTAIN LITIGATION

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1B

  	
  CERTAIN MATTERS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1C

  	
  CERTAIN LETTERS OF CREDIT

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  LENDERS’ COMMITMENTS AND
  PRO RATA SHARES

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1C

  	
  CORPORATE AND CAPITAL
  STRUCTURE; OWNERSHIP; MANAGEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1L

  	
  CLOSING DATE MORTGAGED
  PROPERTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  SUBSIDIARIES OF COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  5.3

  	
  FINANCIAL STATEMENTS AND
  INFORMATION

  	
   

  
	
   

  	
   

  	
   

  
	
  5.5B

  	
  REAL PROPERTY

  	
   

  
	
   

  	
   

  	
   

  
	
  5.5C

  	
  INTELLECTUAL PROPERTY

  	
   

  
	
   

  	
   

  	
   

  
	
  5.11

  	
  CERTAIN EMPLOYEE BENEFIT
  PLANS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.14

  	
  POST-CLOSING DELIVERIES

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  CERTAIN EXISTING
  INDEBTEDNESS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.2

  	
  CERTAIN EXISTING LIENS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  CERTAIN EXISTING
  INVESTMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.4

  	
  CERTAIN EXISTING
  CONTINGENT OBLIGATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.7

  	
  CERTAIN ASSET SALES

  	
   

  
	
   

  	
   

  	
   

  
	
  7.9

  	
  CERTAIN TRANSACTIONS WITH
  AFFILIATES

  	
   

  



 


vii





















 


HEXCEL CORPORATION


 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT is dated as of March 1,
2005 and entered into by and among HEXCEL
CORPORATION, a Delaware corporation (“Company”), THE FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually
referred to herein as a “Lender”
and collectively as “Lenders”), BANC OF AMERICA SECURITIES LLC (“BAS”),
as syndication agent for Lenders (in such capacity, “Syndication Agent”) and as a joint lead arranger, DEUTSCHE BANK SECURITIES INC., as sole book
manager (in such capacity, “Sole Book Manager”)
and as a joint lead arranger (in such capacity, together with BAS in such
capacity, “Joint Lead Arrangers”),
CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN ISLANDS BRANCH (“CSFB”),
as a documentation agent, and WACHOVIA BANK,
NATIONAL ASSOCIATION, as a documentation agent (in such capacity,
together with CSFB in such capacity, “Documentation
Agents”), and DEUTSCHE BANK TRUST
COMPANY AMERICAS (“DBTCA”),
as administrative agent for Lenders (in such capacity, “Administrative Agent”).


 


R E C I T A L S


 


WHEREAS, Company desires to (i) refinance its
Existing Credit Agreement (the “Existing
Credit Agreement Refinancing”), (ii) call for redemption (the “Existing Senior Subordinated Notes Redemption”)
all of the aggregate principal amount of its outstanding 9.75% Senior
Subordinated Notes due 2009 (the “Existing
Senior Subordinated Notes”), (iii) call for redemption (the “Existing Convertible Subordinated Debenture Redemption”)
all of the aggregate principal amount of its outstanding 7.0% Convertible
Subordinated Debentures due 2011 (the “Existing
Convertible Subordinated Debentures”) and (iv) repurchase (the “Existing Senior Secured Notes Repurchase”)
all of the aggregate principal amount of its outstanding 9.875% Senior Secured
Notes (the “Existing Senior Secured Notes”).


 


WHEREAS, Lenders, at the request of Company, have
agreed to extend certain credit facilities to Company, the proceeds of which
will be used (i) together with the proceeds of the issuance and sale by Company
of approximately $225,000,000 of Senior Subordinated Notes due 2015 (the “New Senior Subordinated Notes”), to fund in
part the Existing Credit Agreement Refinancing, the Existing Senior
Subordinated Notes Redemption, the Existing Convertible Subordinated Debenture
Redemption, the Existing Senior Secured Notes Repurchase and the payment of
fees and expenses in connection therewith (collectively, the “Recapitalization”), and (ii) to provide
financing for working capital and other general corporate purposes of Company
and its Subsidiaries;


 


WHEREAS, Company desires to secure all of the
Obligations hereunder and under the other Loan Documents by granting to
Administrative Agent, on behalf of Lenders, a first priority Lien on
substantially all of its real and personal property, all of the capital stock
of


 





















 


its Material Domestic Subsidiaries (other than any Domestic Foreign
Holding Companies) and first-tier Material Foreign Subsidiaries (other than any
Foreign Corporations) and 65% of the capital stock of its Foreign Corporations
and Domestic Foreign Holding Companies; and


 


WHEREAS, Subsidiary Guarantors have agreed to
guarantee the Obligations hereunder and under the other Loan Documents and to
secure their guaranties by granting to Administrative Agent, on behalf of
Lenders, a first priority Lien on substantially all of their real and personal
property, all of the capital stock of their Material Domestic Subsidiaries
(other than any Domestic Foreign Holding Companies) and first tier Material
Foreign Subsidiaries (other than any Foreign Corporations) and 65% of the
capital stock of their Foreign Corporations and Domestic Foreign Holding
Companies:


 


NOW,
THEREFORE, in
consideration of the premises and the agreements, provisions and covenants
herein contained, Company, Lenders, Syndication Agent, Sole Book Manager, Joint
Lead Arrangers, Documentation Agents and Administrative Agent agree as follows:


 


Section 1.              DEFINITIONS


 


1.1          Certain Defined Terms.


 


The following terms used in
this Agreement shall have the following meanings:


 


“Additional
Mortgaged Property”
has the meaning set forth in subsection 6.9.


 


“Additional
Mortgages” has the
meaning set forth in subsection 6.9.


 


“Administrative
Agent” has the
meaning assigned to that term in the introduction to this Agreement and also
means and includes any successor Administrative Agent appointed pursuant to
subsection 9.5A.


 


“Affected
Lender” has the
meaning assigned to that term in subsection 2.6C.


 


“Affected
Loans” has the
meaning assigned to that term in subsection 2.6C.


 


“Affiliate”, as applied to any Person, means any other
Person directly or indirectly controlling, controlled by, or under common
control with, that Person. For the purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling”, “controlled by”
and “under common control with”), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
securities or by contract or otherwise.


 


“Agents” means Administrative Agent, Syndication Agent,
Sole Book Manager and Joint Lead Arrangers and Documentation Agents.


 


“Agreement” means this Credit Agreement dated as of
March 1, 2005.


 


2





















 


“Approved
Fund” means a Fund
that is administered or managed by (i) a Lender, (ii) an Affiliate of
a Lender or (iii) an entity or an Affiliate of an entity that administers
or manages a Lender.


 


“Asset
Sale” means any
direct or indirect sale, lease, transfer, conveyance and other disposition (or
series of related sales, leases, transfers, conveyances or other dispositions)
by Company or any of its Subsidiaries to any Person other than Company or any
of its wholly-owned Subsidiaries of (i) any of the stock of any of
Company’s Subsidiaries, (ii) substantially all of the assets of any
division or line of business of Company or any of its Subsidiaries or
(iii) any other assets (whether tangible or intangible) of Company or any
of its Subsidiaries (other than (a) inventory sold in the ordinary course
of business, (b) sales, assignments, discounts, transfers or dispositions
of accounts or notes (including for less than the face value thereof) in the
ordinary course of business for purposes of compromise or collection and
(c) any such other assets to the extent that the aggregate value of such
assets sold in any single transaction or related series of transactions is
equal to $2,500,000 or less).


 


“Assignment
Agreement” means an
Assignment and Assumption in substantially the form of Exhibit X annexed
hereto.


 


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


 


“Base Rate” means, at any time, the higher of
(i) the Prime Rate and (ii) the rate which is 1/2 of 1% in excess of
the Federal Funds Effective Rate.  Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change.


 


“Base Rate
Loans” means Loans
bearing interest at rates determined by reference to the Base Rate as provided
in subsection 2.2A.


 


“Base Rate
Margin” means the
margin over the Base Rate used in determining the rate of interest of Base Rate
Loans pursuant to subsection 2.2A.


 


“Business
Day” means any day
excluding Saturday, Sunday and any day which is a legal holiday under the laws
of the State of New York or is a day on which banking institutions located in
such state are authorized or required by law or other governmental action to
close.


 


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


 


“Capital
Stock” means the
capital stock of or other equity interests in a Person.


 


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


 


3





















 


“Cash
Equivalents” means,
as at any date of determination, (i) marketable securities (a) issued or
directly and unconditionally guaranteed as to interest and principal by the
United States Government or (b) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of the United
States, in each case maturing within one year after such date; (ii) marketable
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof,
in each case maturing within one year after such date and having, at the time
of the acquisition thereof, the highest rating obtainable from either Standard
& Poor’s (“S&P”) or
Moody’s Investors Service, Inc. (“Moody’s”);
(iii) commercial paper maturing no more than one year from the date of creation
thereof and having, at the time of the acquisition thereof, a rating of at
least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of
deposit, bankers’ acceptances and money market deposits maturing within one
year after such date and issued or accepted by any Lender or by any commercial
bank organized under the laws of the United States of America or any state
thereof or the District of Columbia that (a) is at least “adequately
capitalized” (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; (v) shares of any money market mutual fund that (a) has
at least 95% of its assets invested continuously in the types of investments
referred to in clauses (i) and (ii) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P or
Moody’s; (vi) shares of the Galaxy Money Market Fund held on the Closing Date
(and any increases thereto as a result of returns on such investment); and
(vii) Investments in repurchase obligations with a term of not more than
30 days for underlying securities of the types described in
clause (i) above entered into with a bank meeting the qualifications
described in clause (iv) above at the time such Investment is made.


 


“Change in
Control” means any of
the following: (i) any Person, either individually or acting in concert
with one or more other Persons as a “group,” shall have acquired beneficial
ownership, directly or indirectly, of Securities of Company (or other
Securities convertible into such Securities) representing 40% or more of the
combined voting power of all Securities of Company entitled to vote in the
election of members of the Governing Body of Company, other than Securities
having such power only by reason of the happening of a contingency; (ii) the
occurrence of a change in the composition of the Governing Body of Company such
that a majority of the members of any such Governing Body during any period of
two consecutive years are not Continuing Members; and (iii) the occurrence of
any “Change of Control” as defined in (to the extent then-outstanding) the New
Senior Subordinated Note Indenture, the Preferred Stock Certificates of
Designation or any Permitted Debt Securities. 
As used herein, the term “group”, “beneficially own” or “beneficial
ownership” shall have the meaning set forth in the Exchange Act and the rules
and regulations promulgated thereunder.


 


“Change in
Law” means the
occurrence, after the date of this Agreement, of any of the following:  (i) the adoption or taking effect of any law,
rule, regulation, treaty or order, (ii) any change in any law, rule, regulation
or treaty or in the administration, interpretation or application thereof by
any Government Authority, (iii) any determination of a court or other
Government Authority or (iv) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any Government
Authority.


 


4





















 


“Closing
Date” means the date
on which the initial Loans are made.


 


“Closing
Date Mortgaged Property”
has the meaning set forth in subsection 4.1L.


 


“Closing
Date Mortgages” has
the meaning set forth in subsection 4.1L.


 


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


 


“Collateral
Account” has the
meaning assigned to that term in the Security Agreement.


 


“Collateral
Documents” means the
Security Agreement, the Foreign Pledge Agreements, the Mortgages, the Control
Agreements and all other instruments or documents delivered by any Loan Party
pursuant to this Agreement or any of the other Loan Documents in order to grant
to Administrative Agent, on behalf of Lenders, a Lien on any real or personal
property of that Loan Party as security for the Obligations.


 


“Commercial
Letter of Credit”
means any letter of credit or similar instrument issued for the purpose of
providing the primary payment mechanism in connection with the purchase of any
materials, goods or services by Company or any of its Subsidiaries in the
ordinary course of business of Company or such Subsidiary.


 


“Commitments” means the commitments of Lenders to make
Loans as set forth in subsections 2.1A and 3.3.


 


“Company” has the meaning assigned to that term in the
introduction to this Agreement.


 


“Compliance
Certificate” means a
certificate substantially in the form of Exhibit VIII annexed
hereto.


 


“Confidential
Information Memorandum”
means the Confidential Information Memorandum dated February 2005 prepared by
Company and Deutsche Bank Securities Inc. relating to the credit facilities
evidenced by this Agreement.


 


“Consolidated
Capital Expenditures”
means, for any period, the sum of the aggregate of all expenditures (whether
paid in cash or other consideration or accrued as a liability and including
that portion of Capital Leases which is capitalized on the consolidated balance
sheet of Company and its Subsidiaries) by Company and its Subsidiaries during
that period that, in conformity with GAAP, are included in “additions to
property, plant or equipment” or comparable items reflected in the consolidated
statement of cash flows of Company and its Subsidiaries.  For purposes of this definition, the purchase
price of equipment that is purchased simultaneously with the trade-in of
existing equipment or with insurance proceeds shall be included in Consolidated
Capital Expenditures only to the extent of the gross


 


5





















 


amount of such purchase price less the credit granted by the seller of
such equipment for the equipment being traded in at such time or the amount of
such proceeds, as the case may be.


 


“Consolidated
EBITDA” means, for
any period, the sum, without duplication, of the amounts for such period of
(i) Consolidated Net Income, (ii) Consolidated Interest Expense,
(iii) provisions for taxes based on income, (iv) total depreciation
expense, (v) total amortization expense, and (vi) other non-cash
items (other than any such non-cash item to the extent it represents an accrual
of or reserve for cash expenditures in any future period), but only, in the
case of clauses (ii)-(vi), to the extent deducted in the calculation of
Consolidated Net Income, less non-cash items added in the calculation of
Consolidated Net Income (other than any such non-cash item to the extent it
will result in the receipt of cash payments in any future period), all of the
foregoing as determined on a consolidated basis for Company and its
Subsidiaries in conformity with GAAP.


 


“Consolidated
Excess Cash Flow”
means, for any period, an amount (if positive) equal to (i) the sum, without
duplication, of the amounts for such period of (a) Consolidated EBITDA and (b)
the Consolidated Working Capital Adjustment minus (ii) the sum,
without duplication, of the amounts for such period of (a) voluntary and
scheduled repayments of Consolidated Total Debt (excluding repayments of
revolving credit facilities (including the Revolving Loans) except to the
extent the revolving commitments in respect thereof (including the Revolving
Loan Commitment Amount) are permanently reduced in connection with such
repayments), (b) Consolidated Capital Expenditures (net of any proceeds of
any related financings with respect to such expenditures),
(c) Consolidated Interest Expense, (d) current taxes based on income
of Company and its Subsidiaries and paid in cash with respect to such period
and (e) the amount of any of any Investments made by Company or any of its
Subsidiaries in, or in respect of, joint ventures and third parties, not to
exceed (1) $10,000,000 annually in any Fiscal Year and (2) $40,000,000 in the
aggregate.


 


“Consolidated
Interest Expense”
means, for any period, total interest expense of Company and its Subsidiaries
on a consolidated basis with respect to all outstanding Indebtedness for such
period, including, to the extent not otherwise included in such interest
expense, and to the extent incurred by the Company or its Subsidiaries in such
period, without duplication, (a) interest expense attributable to Capital Lease
obligations; (b) amortization of debt discount and debt issuance cost; (c)
amortization of capitalized interest; (d) non-cash interest expense; (e) accrued
interest; (f) amortization of commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers’ acceptance financing; (g)
interest actually paid by the Company or any such Subsidiary under any guaranty
of Indebtedness of any other Person; (h) net payments, if any, made pursuant to
Interest Rate Agreements (including amortization of fees) and (i) amounts
referred to in subsection 2.3 payable to Administrative Agent and Lenders that
are considered interest expense in accordance with GAAP, but excluding,
however, any such amounts referred to in subsection 2.3 payable on or before
the Closing Date.  Notwithstanding the
foregoing, in no event will: (1) any non-cash dividends or distributions
payable on the Preferred Stock outstanding on the Closing Date or (2) the
accretion or amortization of original issue discount, beneficial conversion
feature and capitalized issuance costs on the Preferred Stock outstanding on
the Closing Date, be included in the calculation of Consolidated Interest
Expense.


 


6





















 


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


 


“Consolidated
Net Income” means,
for any period, the net income (or loss) of Company and its Subsidiaries on a
consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP; provided, however, that the
following shall not be included in the calculation of Consolidated Net Income:
(i) the income (or loss) of any Person (other than a Subsidiary of
Company) in which any other Person (other than Company or any of its Subsidiaries)
has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to Company or any of its Subsidiaries by such
Person during such period, (ii) the income (or loss) of any Person accrued
prior to the date it becomes a Subsidiary of Company or is merged into or
consolidated with Company or any of its Subsidiaries or that Person’s assets
are acquired by Company or any of its Subsidiaries, (iii) the income of
any Subsidiary of Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) any after-tax gains or losses
attributable to asset sales not made in the ordinary course of business or
attributable to returned surplus assets of any Pension Plan, (v) the cumulative
effect of a change in accounting principles, (vi) non-cash compensation expense
related to the issuance of stock incentives pursuant to any equity incentive
plans, (vii) any deemed dividend and accretion (amortization or original issue
discount, beneficial conversion feature and capitalized issuance costs) related
to the Preferred Stock, (viii) restructuring charges, write-downs and reserves
(to the extent not included in clause (iv) above) taken by Company or its
Subsidiaries; provided, that the aggregate amount of any such charges,
write-downs or reserves excluded pursuant to this clause (viii) shall not
exceed $5,000,000 in any Fiscal Year and any such amounts in excess of
$5,000,000 in any Fiscal Year shall be included in the calculation of
Consolidated Net Income for the period when such amounts are expensed, (ix) the
reversal of any reserve originally taken by Company or its Subsidiaries
pursuant to clause (viii) above, (x) gains or losses from the early retirement
or extinguishment of Indebtedness, (xi) judgments and costs of settlement in
the matters and in the amounts set forth on Schedule 1.1A, (xii)
transaction expenses related to a secondary offering of Company’s common stock;
provided, that the aggregate amount of all such transaction expenses
incurred for all secondary offerings of Company’s common stock excluded
pursuant to this clause (xii) shall not exceed $2,500,000 per Fiscal Year and
any such amounts in excess of $2,500,000 per Fiscal Year shall be included in
the calculation of Consolidated Net Income for the period when such amounts are
expensed and (xiii) (to the extent not included in clauses
(i) through (xii) above) any net extraordinary gain or loss.


 


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


 


“Consolidated
Working Capital”
means, as at any date of determination, the excess (or deficit) of accounts
receivable and inventory over accounts payable.


 


7





















 


“Consolidated
Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may
be a negative number) by which Consolidated Working Capital as of the beginning
of such period exceeds (or is less than) Consolidated Working Capital as of the
end of such period.


 


“Contingent
Obligation”, as
applied to any Person, means any direct or indirect liability, contingent or
otherwise, of that Person (i) with respect to any Indebtedness, lease,
dividend or other obligation of another if the primary purpose or intent
thereof by the Person incurring the Contingent Obligation is to provide
assurance to the obligee of such obligation of another that such obligation of
another will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such obligation will be protected
(in whole or in part) against loss in respect thereof, (ii) with respect
to any letter of credit issued for the account of that Person or as to which
that Person is otherwise liable for reimbursement of drawings, or
(iii) with respect to net payment obligations of such Person under Hedge
Agreements.  Contingent Obligations shall
include (a) the direct or indirect guaranty, endorsement (otherwise than for
collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the
obligation of another, (b) the obligation to make take-or-pay or similar
payments if required regardless of non-performance by any other party or
parties to an agreement, and (c) any liability of such Person for the
obligation of another through any agreement (contingent or otherwise)
(1) to purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (2) to maintain the solvency or any balance sheet item,
level of income or financial condition of another if, in the case of any
agreement described under subclauses (1) or (2) of this sentence, the primary
purpose or intent thereof is as described in the preceding sentence.  The amount of any Contingent Obligation shall
be equal to the amount of the obligation so guaranteed or otherwise supported
or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined in good faith by the Person obligated in
respect of such Contingent Obligation.


 


“Continuing
Member” means, as of
any date of determination any member of the Governing Body of Company who (i)
was a member of such Governing Body on the Closing Date or (ii) was nominated
for election or elected to such Governing Body in accordance with the terms of
the Governance Agreement or the Stockholders Agreement or with the affirmative
vote of a majority of the members who were either members of such Governing
Body on the Closing Date or whose nomination or election was previously so
approved.


 


“Contractual
Obligation”, as
applied to any Person, means any provision of any material indenture, mortgage,
deed of trust, contract, undertaking, agreement or other material instrument or
other material Security to which that Person is a party or to which such Person
or any of its properties is subject.


 


“Control
Agreement” means an
agreement, satisfactory in form and substance to Administrative Agent and
executed by the financial institution or securities intermediary at which a Deposit
Account or a Securities Account, as the case may be, is maintained, pursuant to
which such financial institution or securities intermediary confirms and
acknowledges


 


8





















 


Administrative Agent’s security interest in such account, and agrees
that the financial institution or securities intermediary, as the case may be,
will comply with instructions originated by Administrative Agent as to
disposition of funds in such account, without further consent by Company or any
Subsidiary.


 


“Currency
Agreement” means any
foreign exchange contract, currency swap agreement, futures contract, option
contract, synthetic cap or other similar agreement or arrangement to which
Company or any of its Subsidiaries is a party.


 


“DBTCA” has the meaning assigned to that term in the
introduction to this Agreement.


 


“Deposit
Account” means a
“deposit account” as defined in Article 9 of the UCC.


 


“Disclosed
Matter” means any
matter that has been (i) disclosed by the Company on Schedule 1.1B
hereto or (ii) specifically disclosed by the Company with particularity in (a)
any filing on Form 10-K, 10-Q or 8-K made with the Securities and Exchange
Commission since December 31, 2003 and prior to Closing Date or (b) in the
Confidential Information Memorandum; provided, that, with respect to the
foregoing clause (ii), no matter shall constitute a “Disclosed Matter” to the
extent it shall prove to be, or shall become, materially more adverse to
Company and its Subsidiaries taken as whole or to the Lenders than it would
have reasonably appeared to be on the basis of the disclosure contained in any
of the documents referred to in the foregoing clause (ii).


 


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


 


“Domestic Foreign
Holding Company” means
any Domestic Subsidiary of Company that owns, directly or indirectly, the stock
of one or more Foreign Subsidiaries of Company, provided that the fair
market value of the gross assets of such Domestic Subsidiary (not including the
portion of such fair market value which is attributable to (x) the stock of any
Foreign Subsidiary owned, directly or indirectly, by such Domestic Subsidiary
and (y) any asset held directly by such Domestic Subsidiary for less than 31
calendar days) does not exceed $1,000,000.


 


“Domestic
Subsidiary” means any
Subsidiary of Company that is incorporated or organized under the laws of the
United States of America, any state thereof or in the District of Columbia.


 


“Eligible
Assignee” means (i)
any Lender, any Affiliate of any Lender and any Approved Fund of any Lender;
and (ii) (a) a commercial bank organized under the laws of the United States or
any state thereof; (b) a savings and loan association or savings bank
organized under the laws of the United States or any state thereof; (c) a
commercial bank organized under the laws of any other country or a political
subdivision thereof; provided that (1) such bank is acting through
a branch or agency located in the United States or (2) such bank is
organized


 


9





















 


under the laws of a country that is a member of the Organization for
Economic Cooperation and Development or a political subdivision of such
country; and (d) any other entity that is a “qualified institutional
buyer” (as defined under Rule 144A promulgated under the Securities Act)
that extends credit or buys loans in the ordinary course including insurance
companies, mutual funds and lease financing companies; provided that
neither Company nor any Affiliate of Company shall be an Eligible Assignee.


 


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


 


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


 


“Environmental
Laws” means any and
all current or future federal, state, foreign, or local laws, statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations,
codes, binding and enforceable guidelines, binding and enforceable written
policy or rule of common law, or any other requirements of any Government
Authority relating to (i) environmental matters, including those relating to
any Hazardous Materials Activity, (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials, or (iii) occupational safety
and health, industrial hygiene or the protection of human, plant or animal
health or welfare, in any manner applicable to Company or any of its
Subsidiaries or any Facility, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act as amended by the
Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. Sections 9601 et
seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section
6901 et seq., the Clean Air Act, 42 U.S.C. Sections 7401 et seq., the Federal
Water Pollution Control Act, 33 U.S.C. Sections 1251 et seq., the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et seq., the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq.,
the Safe Drinking Water Act, 42 USC. § 3803 et  seq.; the Oil
Pollution Act of 1990, 33 USC. § 2701 et  seq.; the Emergency
Planning and the Community Right-to-Know Act of 1986, 42 USC. § 11001 et
seq.; the Hazardous Material Transportation Act, 49 USC § 1801 et
seq.; and the Occupational Safety and Health Act, 29 USC. §651 et
seq. (to the extent it regulates occupational exposure to Hazardous Materials),
all rules are regulations related thereto; and any state and local
counterparts, equivalents or similar laws.


 


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


 


“ERISA Affiliate”, as applied to any Person, means
(i) any corporation that is a member of a controlled group of corporations
within the meaning of Section 414(b) of the Internal Revenue Code of which that
Person is a member; (ii) any trade or business (whether or


 


10





















 


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


 


“ERISA
Event” means (i) a
“reportable event” within the meaning of Section 4043 of ERISA and the
regulations issued thereunder with respect to any Pension Plan (excluding those
for which the provision for 30-day notice to the PBGC has been waived by
regulation); (ii) the failure to meet the minimum funding standard of Section 412
of the Internal Revenue Code with respect to any Pension Plan (whether or not
waived in accordance with Section 412(d) of the Internal Revenue Code) or the
failure to make by its due date a required installment under Section 412(m) of
the Internal Revenue Code with respect to any Pension Plan or the failure to
make any required contribution to a Multiemployer Plan; (iii) the provision by
the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA
of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by Company, any of
its Subsidiaries or any of their respective ERISA Affiliates from any Pension
Plan with two or more contributing sponsors or the termination of any such
Pension Plan resulting in liability pursuant to Section 4063 or 4064 of ERISA;
(v) the institution by the PBGC of proceedings to terminate any Pension Plan,
or the occurrence of any event or condition which might constitute grounds
under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on Company, any
of its Subsidiaries or any of their respective ERISA Affiliates pursuant to
Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential liability therefor, or the receipt by Company,
any of its Subsidiaries or any of their respective ERISA Affiliates of notice
from any Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA; (viii) receipt from the
Internal Revenue Service of notice of the failure of any Pension Plan (or any
other Employee Benefit Plan intended to be qualified under Section 401(a) of
the Internal Revenue Code) to qualify under Section 401(a) of the Internal
Revenue Code, or the failure of any trust forming part of any Pension Plan to
qualify for exemption from taxation under Section 501(a) of the Internal Revenue
Code; or (ix) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n)
of the Internal Revenue Code or pursuant to ERISA with respect to any Pension
Plan.


 


“Eurodollar
Rate” means, for any
Interest Rate Determination Date with respect to an Interest Period for a
Eurodollar Rate Loan, the rate per annum obtained by dividing
(i) (A)


 


11





















 


the rate per annum (rounded upward to the nearest 1/16 of one percent)
that appears on the Moneyline Telerate page 3750 (British Banking Association)
(or such other comparable page as may, in the opinion of Administrative Agent,
replace such page for the purpose of displaying such rate) as the interbank
offered rate for Dollar deposits with maturities comparable to such Interest
Period as of approximately 11:00 A.M. (London time) on such Interest Rate
Determination Date or (B) if such rate is not available at such time for any
reason, the arithmetic average (rounded upward to the nearest 1/16 of one
percent) of the offered quotations, if any, to first class banks in the
interbank Eurodollar market by DBTCA for Dollar deposits of amounts in same day
funds comparable to the principal amount of the Eurodollar Rate Loan of DBTCA
for which the Eurodollar Rate is then being determined with maturities
comparable to such Interest Period as of approximately 11:00 A.M. (New York
time) on such Interest Rate Determination Date by (ii) a percentage
equal to 100% minus the stated maximum rate of all reserve requirements
(including any marginal, emergency, supplemental, special or other reserves)
applicable on such Interest Rate Determination Date to any member bank of the
Federal Reserve System in respect of “Eurocurrency liabilities” as defined in
Regulation D (or any successor category of liabilities under Regulation D).


 


“Eurodollar
Rate Loans” means
Loans bearing interest at rates determined by reference to the Eurodollar Rate
as provided in subsection 2.2A.


 


“Eurodollar
Rate Margin” means
the margin over the Eurodollar Rate used in determining the rate of interest of
Eurodollar Rate Loans pursuant to subsection 2.2A.


 


“Event of
Default” means each
of the events set forth in Section 8.


 


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


 


“Excluded
Taxes” means, with
respect to the Administrative Agent, any Lender, or any other recipient of any
payment to be made by or on account of any obligation of Company hereunder
(i) taxes that are imposed on the overall net income (however denominated)
and franchise taxes imposed in lieu thereof (a) by the United States,
(b) by any other Government Authority under the laws of which such Lender
is organized or has its principal office or maintains its applicable lending
office, or (c) by any Government Authority solely as a result of a present
or former connection between such recipient and the jurisdiction of such
Government Authority (other than any such connection arising solely from such
recipient having executed, delivered or performed its obligations or received a
payment under, or enforced, any of the Loan Documents), (ii) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which Company is located, and (iii) in the case of
the Administrative Agent or any Lender (other than an assignee pursuant to a
request of Company under subsection 2.9), any withholding tax that
(x) is imposed on amounts payable to such Person at the time it becomes a
party hereto (or designates a new lending office), (y) is attributable to
such Person’s failure or inability (other than as a result of a Change in Law)
to comply with its obligations under subsection 2.7B(iv), except to the
extent that such Person (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from Company with respect to such withholding tax


 


12





















 


pursuant to subsection 2.7B, or (z) is required to be deducted
under applicable law from any payment hereunder on the basis of the information
provided by such Person pursuant to clause (d) of subsection 2.7B(iv).


 


“Existing
Convertible Subordinated Debenture Indenture” means the Indenture, dated as of August 1,
1986, between Company and the Bank of California, N.A., as trustee, relating to
the Existing Convertible Subordinated Debentures.


 


“Existing
Convertible Subordinated Debentures” has the meaning assigned to that term in the recitals to this
Agreement.


 


“Existing
Convertible Subordinated Debentures Redemption” has the meaning assigned to that term in the
recitals to this Agreement.


 


“Existing
Credit Agreement”
means the Credit and Guaranty Agreement, dated as of March 19, 2003 (as
amended), by and among Company, Hexcel Composites Limited, Hexcel Composites
GmbH & Co. KG (f/k/a Hexcel Composites GmbH), Hexcel Composites GmbH, the
guarantors named therein, the lenders from time to time party thereto, Fleet
Capital Corporation, as Administrative Agent and as Fronting Bank, Fleet
National Bank, London U.K. branch, trading as FleetBoston Financial, as
Fronting Bank and Issuing Bank, Fleet National Bank, as Issuing Bank, and Fleet
Securities Inc., as Lead Arranger.


 


“Existing
Credit Agreement Refinancing” has the meaning assigned to that term in the recitals to this
Agreement.


 


“Existing
Senior Secured Note Indenture” means the Indenture, dated as of March 19, 2003, among Company, the
guarantors named therein and Wells Fargo Bank Minnesota, National Association,
as trustee, relating to the Existing Senior Secured Notes.


 


“Existing
Senior Secured Notes” has
the meaning assigned to that term in the recitals to this Agreement.


 


“Existing
Senior Secured Notes Repurchase” has the meaning assigned to that term in the recitals to this Agreement.


 


“Existing
Senior Subordinated Note Indenture” means the Indenture, dated as of January 21, 1999, between Company and
The Bank of New York, as trustee, relating to the Existing Senior Subordinated
Notes.


 


“Existing
Senior Subordinated Notes” has the meaning assigned to that term in the recitals to this
Agreement.


 


“Existing
Senior Subordinated Notes Redemption” has the meaning assigned to that term in the recitals to this
Agreement.


 


13





















 


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


 


“Federal
Funds Effective Rate”
means, for any period, a fluctuating interest rate equal for each day during
such period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day on such transactions received by
Administrative Agent from three Federal funds brokers of recognized standing
selected by Administrative Agent.


 


“Final
Redemption Date”
means the earlier of (i) the date on which all or substantially all of the
Existing Senior Secured Notes that were not repurchased on the Closing Date are
either defeased or repurchased and all of the Existing Senior Subordinated
Notes and all of the Existing Convertible Subordinated Debentures are redeemed
in full and (ii) April 15, 2005.


 


“Financial
Officer” means the
chief executive officer, chief financial officer, treasurer or controller of
Company.


 


“First
Priority” means, with
respect to any Lien purported to be created in any Collateral pursuant to any
Collateral Document, that (i) such Lien is perfected and has priority over any
other Lien on such Collateral (other than Liens permitted pursuant to
subsection 7.2A) and (ii) such Lien is the only Lien (other than Liens
permitted pursuant to subsection 7.2A) to which such Collateral is subject.


 


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


 


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


 


“Flood
Hazard Property” means
a Closing Date Mortgaged Property or an Additional Mortgaged Property located
in an area designated by the Federal Emergency Management Agency as having
special flood or mud slide hazards.


 


“Foreign
Corporation” means
any Foreign Subsidiary of Company that is treated as a corporation for United
States federal income tax purposes.


 


“Foreign
Lender” means any
Lender that is organized under the laws of a jurisdiction other than that in
which Company is resident for tax purposes. 
For purposes of this definition, the United States, each state thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.


 


14





















 


“Foreign
Pledge Agreement”
means each pledge agreement or similar instrument governed by the laws of a
country other than the United States, executed on the Closing Date or from time
to time thereafter in accordance with subsection 6.8 by Company or any
Subsidiary Guarantor that owns Capital Stock of one or more Foreign Subsidiaries
organized in such country, in form and substance satisfactory to Administrative
Agent.


 


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


 


“French
Facility” means the
factoring facility provided to Hexcel Composites S.A. and Hexcel Fabrics S.A.
by GE Factofrance pursuant to the terms of the French Facility Documents in an
aggregate principal amount to not exceed Euro 20,000,000.


 


“French
Facility Documents”
means, collectively, the agreements, instruments and documents required to be
executed or delivered pursuant to the French Facility, in each case as in
effect on the date hereof.


 


“Fund” means any Person (other than a natural
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.


 


“Funded
Debt”, as applied to
any Person, means all Indebtedness of that Person (including any current
portions thereof) which by its terms or by the terms of any instrument or agreement
relating thereto matures more than one year from, or is directly renewable or
extendable at the option of that Person to a date more than one year from
(including an option of that Person under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of
one year or more from), the date of the creation thereof.


 


“Funding
and Payment Office”
means (i) the office of Administrative Agent and Swing Line Lender located at
90 Hudson Street, 1st Floor, Jersey City, New Jersey 07302 or (ii)
such other office of Administrative Agent and Swing Line Lender as may from
time to time hereafter be designated as such in a written notice delivered by
Administrative Agent and Swing Line Lender to Company and each Lender.


 


“Funding
Date” means the date
of funding of a Loan.


 


“GAAP” means, subject to the limitations on the
application thereof set forth in subsection 1.2, generally accepted accounting
principles set forth in opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.


 


“Governance
Agreement” means the
Amended and Restated Governance Agreement, dated as of March 19, 2003, among
Company, LXH, L.L.C., LXH II, L.L.C., GS


 


15





















 


Capital Partners 2000, L.P., GS Capital Partners 2000 Offshore, L.P.,
GS Capital Partners 2000 Employee Fund, L.P., GS Capital Partners 2000 GmbH
& Co.  Beteiligungs KG and Stone
Street Fund 2000, L.P., as the same may be amended, modified, restated or
supplemented from time to time.


 


“Governing
Body” means the board
of directors or other body having the power to direct or cause the direction of
the management and policies of a Person that is a corporation, partnership,
trust or limited liability company.


 


“Government
Authority” means the
government of the United States or any other nation, or any state, regional or
local political subdivision or department thereof, and any other governmental
or regulatory agency, authority, body, commission, central bank, board, bureau,
organ, court, instrumentality or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government, in each case whether federal, state, local or
foreign (including supra-national bodies such as the European Union or the
European Central Bank).


 


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


 


“Hazardous
Materials” means
(i) any chemical, material or substance at any time defined as or included
in the definition of “hazardous substances”, “hazardous wastes”, “hazardous
materials”, “extremely hazardous waste”, “acutely hazardous waste”,
“radioactive waste”, “biohazardous waste”, “pollutant”, “toxic pollutant”,
“contaminant”, “restricted hazardous waste”, “infectious waste”, “toxic
substances”, or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, “TCLP toxicity” or “EP toxicity” or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum, petroleum
fraction or petroleum derived substance; (iii) any drilling fluids,
produced waters and other wastes associated with the exploration, development
or production of crude oil, natural gas or geothermal resources; (iv) any
flammable substances or explosives; (v) any radioactive materials;
(vi) any asbestos-containing materials; (vii) urea formaldehyde foam
insulation; (viii) electrical equipment which contains any oil or
dielectric fluid containing polychlorinated biphenyls; (ix) pesticides;
and (x) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Government Authority or which may or
could pose a hazard to the health and safety of the owners, occupants or any
Persons in the vicinity of any Facility or to the indoor or outdoor
environment.


 


“Hazardous
Materials Activity”
means any past, current, proposed or threatened activity, event or occurrence
involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release,
discharge, placement, generation, transportation, processing, construction,
treatment, abatement, removal, remediation, disposal, disposition or handling
of any Hazardous Materials, and any corrective action or response action with
respect to any of the foregoing.


 


16





















 


“Hedge
Agreement” means (i)
any Currency Agreement designed to hedge against fluctuations in currency
values, exchange rates or forward rates, or any similar agreement designed to
hedge against fluctuations in commodity prices and (ii) any Interest Rate
Agreement.


 


“Increased
Amount Date” has the
meaning assigned to such term in subsection 2.10.


 


“Incremental
Amount” means, at any
time, the excess, if any, of (a) $100,000,000 over (b) the aggregate
amount of all Incremental Term Loan Commitments and Incremental Revolving Loan
Commitments established prior to such time pursuant to subsection 2.10.


 


“Incremental Assumption Agreement” means an Incremental
Assumption Agreement in form and substance reasonably satisfactory to
Administrative Agent, among Company, Administrative Agent and one or more
Incremental Term Lenders and/or Incremental Revolving Lenders.


 


“Incremental
Revolving Lender” means a
Lender with an Incremental Revolving Loan Commitment or an outstanding
Incremental Revolving Loan.


 


“Incremental
Revolving Loan Commitment” means the commitment of any Lender, established pursuant to subsection
2.10, to make Incremental Revolving Loans to Company.


 


“Incremental
Revolving Loan Commitment Termination Date” means the final maturity date of any Incremental
Revolving Loan, as set forth in the applicable Incremental Assumption
Agreement.


 


“Incremental
Revolving Loans”
means Revolving Loans made by one or more Lenders to Company pursuant to
subsection 2.1A(iv).  Incremental
Revolving Loans may be made in the form of additional Revolving Loans or, to
the extent permitted by subsection 2.10 and provided for in the relevant
Incremental Assumption Agreement, Other Revolving Loans.


 


“Incremental
Term Lender” means a
Lender with an Incremental Term Loan Commitment or an outstanding Incremental
Term Loan.


 


“Incremental
Term Loan Commitment”
means the commitment of any Lender, established pursuant to
subsection 2.10, to make Incremental Term Loans to Company.


 


“Incremental
Term Loan Maturity Date”
means the final maturity date of any Incremental Term Loan, as set forth in the
applicable Incremental Term Loan Assumption Agreement.


 


“Incremental
Term Loans” means
Term Loans made by one or more Lenders to Company pursuant to
subsection 2.1A(iv).  Incremental
Term Loans may be made in the form of additional Term Loans or, to the extent
permitted by subsection 2.10 and provided for in the relevant Incremental
Assumption Agreement, Other Term Loans.


 


17





















 


“Indebtedness”, as applied to any Person, means, without duplication, (i) all
indebtedness for borrowed money, (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP, (iii) notes payable and drafts
accepted representing extensions of credit whether or not representing
obligations for borrowed money (excluding any such notes payable and drafts
relating to trade accounts payable or accrued liabilities (other than accrued
liabilities in respect of the items described in the other clauses of this
definition) arising in the ordinary course of business and payable in
accordance with customary practice or which are being contested in good faith),
(iv) any obligation owed for all or any part of the deferred purchase
price of property or services (excluding any such obligations incurred under
ERISA and excluding trade accounts payable or accrued liabilities (other than
accrued liabilities in respect of the items described in the other clauses of
this definition) arising in the ordinary course of business and payable in
accordance with customary practice or which are being contested in good faith),
which purchase price is due more than six months from the date of incurrence of
the obligation in respect thereof, (v) Synthetic Lease Obligations, and
(vi) all indebtedness secured by any Lien on any property or asset owned
or held by that Person regardless of whether the indebtedness secured thereby
shall have been assumed by that Person or is nonrecourse to the credit of that
Person.  Obligations under Interest Rate
Agreements and Currency Agreements constitute (1) in the case of Hedge
Agreements, Contingent Obligations, and (2) in all other cases, Investments,
and in neither case constitute Indebtedness.


 


“Indemnified Liabilities” has the meaning assigned to that term in subsection 10.3.


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


“Indemnitee” has the meaning assigned to that term in subsection 10.3.


 


“Intellectual Property” means all issued patents, pending patent
applications, trademarks, tradenames, copyrights, software, service-marks and
trade secrets, including those in know-how, technology and processes, used in
the conduct of the business of Company and its Subsidiaries.


 


“Interest Payment Date” means (i) with respect to any Base Rate
Loan, each February 28, May 31, August 31 and November 30
of each year, commencing on the first such date to occur after the Closing
Date, and (ii) with respect to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan; provided that in the case
of each Interest Period of longer than three (3) months “Interest Payment Date”
shall also include the date that is three months, or a multiple thereof, after
the commencement of such Interest Period.


 


“Interest Period” has the meaning assigned to that term in subsection 2.2B.


 


“Interest Rate Agreement” means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a
party.


 


18





















 


“Interest Rate Determination Date”, with respect to any Interest Period, means
the second Business Day prior to the first day of such Interest Period.


 


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


 


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


 


“IP Collateral” means, collectively, the Intellectual Property of Company or a
Subsidiary Guarantor that constitutes Collateral under the Security Agreement.


 


“IP Filing Office” means the United States Patent and Trademark Office, the United States
Copyright Office or any successor or substitute office in which filings are
necessary or, in the opinion of Administrative Agent, desirable in order to
create or perfect Liens on, or evidence the interest of Administrative Agent
and Lenders in, any IP Collateral.


 


“Issuing Lender”, with respect to (1) any Letter of Credit, means the Revolving Lender,
or any Affiliate thereof, that agrees or is otherwise obligated to issue such
Letter of Credit, determined as provided in subsection 3.1B(ii) or (2) any
letter of credit described on Schedule 1.1C, Fleet National Bank.


 


“Joint Venture” means a joint venture, partnership or other similar arrangement,
whether in corporate, partnership or other legal form.


 


“Lender” and “Lenders” means the
Persons identified as “Lenders” and listed on the signature pages of this
Agreement, together with their successors and permitted assigns pursuant to subsection 10.1,
and the term “Lenders” shall include Swing Line Lender unless the context
otherwise requires; provided that the term “Lenders”, when used in the
context of a particular Commitment, shall mean Lenders having that Commitment.


 


19





















 


“Letter of Credit” or “Letters of Credit”
means (i) Commercial Letters of Credit and Standby Letters of Credit issued or
to be issued by Issuing Lenders for the account of Company pursuant to subsection 3.1
and (ii) the letters of credit described on Schedule 1.1C, which
letters of credit shall be deemed issued and outstanding hereunder on the
Closing Date without further action of the parties hereto.


 


“Letter of Credit Usage” means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is or at any time thereafter may
become available for drawing under all Letters of Credit then outstanding plus
(ii) the aggregate amount of all drawings under Letters of Credit honored by
Issuing Lenders and not theretofore reimbursed out of the proceeds of Revolving
Loans pursuant to subsection 3.3B or otherwise reimbursed by Company.


 


“Lien”
means any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.


 


“Loan”
or “Loans” means one or more of
the Loans made by Lenders to Company pursuant to subsection 2.1A.


 


“Loan Documents” means this Agreement, the Notes, the Letters of Credit (and any
applications for, or reimbursement agreements or other documents or
certificates executed by Company in favor of an Issuing Lender relating to, the
Letters of Credit), the Subsidiary Guaranty and the Collateral Documents.


 


“Loan Party” means each of Company and any of Company’s Subsidiaries from time to
time executing a Loan Document, and “Loan
Parties” means all such Persons, collectively.


 


“Margin Stock” has the meaning assigned to that term in Regulation U of the Board of
Governors of the Federal Reserve System as in effect from time to time.


 


“Material Adverse Effect” means a material adverse effect upon
(i) the business, operations, properties, assets or condition (financial or
otherwise) of Company and its Subsidiaries taken as a whole, (ii) the
ability of any Loan Party to perform the Obligations or (ii) the rights,
remedies and benefits available to Administrative Agent or any Lender under any
Loan Documents.


 


“Material Domestic Subsidiary” means a Material Subsidiary of the Company
that is a Domestic Subsidiary.


 


“Material Foreign Subsidiary” means a Material Subsidiary of the Company
that is a Foreign Subsidiary.


 


20





















 


“Material Subsidiary” means each Subsidiary of Company now
existing or hereafter acquired or formed by Company which, on a consolidated
basis for such Subsidiary and its Subsidiaries, (i) for the most recent Fiscal
Year accounted for more than 5% of the consolidated revenues of Company and its
Subsidiaries or (ii) as at the end of such Fiscal Year, was the owner of more
than 5% of the consolidated assets of Company and its Subsidiaries.


 


“Maximum Consolidated Capital Expenditures Amount” has the meaning assigned to that term in subsection 7.8.


 


“Mortgage” means (i) a security instrument (whether designated as a deed of trust
or a mortgage or by any similar title) executed and delivered by any Loan
Party, substantially in the form of Exhibit XIV annexed hereto or in
such other form as may be approved by Administrative Agent in its sole
discretion, in each case with such changes thereto as may be recommended by
Administrative Agent’s local counsel based on local laws or customary local
mortgage or deed of trust practices, or (ii) at Administrative Agent’s option,
in the case of an Additional Mortgaged Property, an amendment to an existing
Mortgage, in form satisfactory to Administrative Agent, adding such Additional
Mortgaged Property to the Real Property Assets encumbered by such existing
Mortgage.  “Mortgages” means all such instruments, including the Closing
Date Mortgages and any Additional Mortgages, collectively.


 


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


 


“Net Asset Sale Proceeds”, with respect to any Asset Sale, means Cash
payments (including any Cash received by way of deferred payment pursuant to,
or by monetization of, a note receivable or otherwise, but only as and when so
received) received by Company or a Subsidiary from such Asset Sale, net of any
bona fide direct costs incurred in connection with such Asset Sale, including
(i) income or gains taxes paid or payable, or reasonably estimated to be
actually payable within two years of the date of such Asset Sale as a result of
any gain recognized in connection with such Asset Sale, (ii) payment of
the outstanding principal amount of, premium or penalty, if any, and interest
on any Indebtedness (other than the Loans) that is (a) secured by a Lien on the
stock or assets in question and that is required to be repaid under the terms thereof
as a result of such Asset Sale and (b) actually paid in connection with the
receipt of such cash payment to a Person that is not an Affiliate of any Loan
Party, (iii) reasonable brokerage fees and legal expenses incurred in
connection with such Asset Sale and (iv) any reasonable reserves
established against liabilities reasonably anticipated and attributable to such
Asset Sale, including, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under
indemnification obligations associated with such Asset Sale.


 


“Net Insurance/Condemnation Proceeds” means any Cash payments or proceeds received
by Company or any Subsidiary Guarantor (i) under any casualty insurance
policy in respect of a covered loss thereunder and (ii) as a result of the
taking of any assets of Company or any Subsidiary Guarantor by any Person
pursuant to the power of eminent domain, condemnation or otherwise, or pursuant
to a sale of any such assets to a purchaser with such power under threat of
such a taking, in each case net of (x) any actual and reasonable


 


21





















 


documented costs incurred by
Company or any Subsidiary Guarantor in connection with the adjustment or
settlement of any claims of Company or such Subsidiary Guarantor in respect
thereof, (y) any bona fide direct costs incurred in connection with any such
taking or sale of such assets, including (A) income or gains taxes paid or
payable, or reasonably estimated to be actually payable within two years of the
date of such sale as a result of any gain recognized in connection therewith
and (B) payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured by
a Lien on such assets in question and that is required to be repaid under the
terms thereof as a result of such taking or asset sale.


 


“Net Securities Proceeds” means the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs and expenses associated
therewith, including reasonable legal fees and expenses) from the (i) issuance
of Capital Stock (other than to the Company or any of its Subsidiaries or
pursuant to any employee, officer or director stock, stock option or other
compensation plan) of or incurrence of Indebtedness by Company or any of its
Subsidiaries and (ii) capital contributions made by a holder of Capital
Stock of Company.


 


“New Senior Subordinated Notes” has the
meaning assigned to that term in the recitals to this Agreement.


 


“New Senior Subordinated Note Indenture”
means the Indenture, dated as of February 1, 2005, between Company and The
Bank of New York, as trustee, relating to the New Senior Subordinated Notes.


 


“Notes” means one or more of the Tranche B Term Notes, Revolving Notes or
Swing Line Note, or any promissory notes issued to evidence Incremental Term
Loans or Incremental Revolving Loans, or any combination thereof.


 


“Notice of Borrowing” means a notice substantially in the form of Exhibit I
annexed hereto.


 


“Notice of Conversion/Continuation” means a notice substantially in the form of Exhibit II
annexed hereto.


 


“Obligations” means all obligations of every nature of each Loan Party from time to
time owed to Administrative Agent, Lenders or any of them under the Loan
Documents, whether for principal, interest, reimbursement of amounts drawn
under Letters of Credit, fees, expenses, indemnification or otherwise.


 


“Officer” means the president, chief executive officer, a vice president, chief
financial officer, chief accounting officer, the controller, treasurer, general
partner (if an individual), managing member (if an individual) or other
individual appointed by the Governing Body or the Organizational Documents of a
corporation, partnership, trust or limited liability company to serve in a
similar capacity as the foregoing.


 


22





















 


“Officer’s Certificate”, as applied to any Person that is a
corporation, partnership, trust or limited liability company, means a
certificate executed on behalf of such Person by one or more Officers of such
Person or one or more Officers of a general partner or a managing member if
such general partner or managing member is a corporation, partnership, trust or
limited liability company.


 


“Organizational Documents” means the documents (including Bylaws, if
applicable) pursuant to which a Person that is a corporation, partnership,
trust or limited liability company is organized.


 


“Other Revolving Loans” shall have the meaning assigned to such term
in subsection 2.10.


 


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


 


“Other Term Loans” shall have the meaning assigned to such term in subsection 2.10.


 


“Participant” means a purchaser of a participation in the rights and obligations
under this Agreement pursuant to subsection 10.1C.


 


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


 


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


 


“Permitted Acquisition” means the acquisition of all or any portion
of the business and assets, or Capital Stock, of any Person which acquisition
is permitted pursuant to clause (vi) of subsection 7.3.


 


“Permitted Debt Securities” shall mean unsecured senior subordinated
notes contemplated to be issued by Company (i) the terms of which (1) do not
provide for any scheduled repayment, mandatory redemption or sinking fund
obligation prior to the date that is six months after the final maturity date
of the Term Loans and (2) provide for subordination of payments in respect of
such notes to the Obligations and guarantees thereof under the Loan Documents
in a manner reasonably satisfactory to the Administrative Agent, (ii) the
covenants, events of default, Subsidiary guarantees and other terms of which,
taken as a whole, are, in the reasonable judgment of the Administrative Agent,
generally consistent with those applicable to similar securities issued by
companies with credit characteristics similar to those of Company,
(iii) in respect of which no Subsidiary of Company that is not an obligor
under the Loan Documents is an obligor, (iv) the proceeds of which are
used to finance a Permitted Acquisition


 


23





















 


hereunder and (v) after
giving effect to the incurrence of which and the application of the proceeds
therefrom Company would be in Pro Forma Compliance.


 


“Permitted Encumbrances” means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29) or 412(n)
of the Internal Revenue Code or by ERISA):


 


(i)            Liens for taxes, assessments or governmental
charges or claims the payment of which is not, at the time, required by subsection 6.3;


 


(ii)           statutory Liens of landlords, Liens of
collecting banks under the UCC on items in the course of collection, statutory
Liens and rights of set-off of banks, statutory Liens of carriers,
warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens
imposed by law, in each case incurred in the ordinary course of business (a)
for amounts not yet overdue or (b) for amounts that are overdue and that (in
the case of any such amounts overdue for a period in excess of 5 days) are
being contested in good faith by appropriate proceedings, so long as such
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made for any such contested amounts;


 


(iii)          deposits made in the ordinary course of
business in connection with workers’ compensation, unemployment insurance and
other types of social security, or to secure liability to insurance carriers
under insurance or self-insurance arrangements, the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds, or in
connection with the payment of the exercise price and withholding taxes in
respect of the exercise by employees of stock options, and other similar
obligations (exclusive of obligations for the payment of borrowed money), so
long as no foreclosure, sale or similar proceedings have been commenced with
respect to any portion of the Collateral on account thereof;


 


(iv)          any attachment or judgment Lien not
constituting an Event of Default under subsection 8.8;


 


(v)           licenses (with respect to Intellectual
Property and other property), leases or subleases granted to third parties in
accordance with any applicable terms of the Collateral Documents and not
interfering in any material respect with the ordinary conduct of the business
of Company or any of its Subsidiaries and licenses permitted under subsection 7.7
hereof;


 


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


 


24





















 


(vii)         any (a) interest or title of a lessor or
sublessor under any lease not prohibited by this Agreement, (b) Lien or
restriction that the interest or title of such lessor or sublessor may be
subject to, or (c) subordination of the interest of the lessee or
sublessee under such lease to any Lien or restriction referred to in the
preceding clause (b), so long as the holder of such Lien or restriction agrees
to recognize the rights of such lessee or sublessee under such lease;


 


(viii)        Liens arising from filing UCC financing
statements relating solely to leases not prohibited by this Agreement;


 


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


 


(x)            any zoning or similar law or right reserved
to or vested in any Government Authority to control or regulate the use of any
real property;


 


(xi)           Liens granted pursuant to the Collateral Documents; and


 


(xii)          Liens securing obligations (other than
obligations representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the ordinary course
of business of Company and its Subsidiaries.


 


“Permitted Refinancings” shall mean the issuance of any Indebtedness
(“Permitted Refinancing Indebtedness”) in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund (collectively, to “Refinance”), the Indebtedness being
Refinanced; provided that (a) the principal amount (or accreted value,
if applicable) of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the Indebtedness so
Refinanced (plus unpaid accrued interest and premium thereon and discounts,
fees, commissions and expenses in connection therewith), (b) the average life
to maturity of such Permitted Refinancing Indebtedness is greater than or equal
to that of the Indebtedness being Refinanced, (c) if the Indebtedness being
Refinanced is subordinated in right of payment to the Obligations under this
Agreement, such Permitted Refinancing Indebtedness shall be subordinated in
right of payment to such Obligations on terms at least as favorable to the
Lenders, taken as a whole, as those contained in the documentation governing
the Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness
(i) with respect to any Loan Party, shall have different obligors, or greater
guarantees or security, than the Indebtedness being Refinanced and (ii) with
respect to any Subsidiary that is not a Loan Party, shall have no obligor that
is a Loan Party, or greater guarantees or security, than the Indebtedness being
Refinanced, (e) if the Indebtedness being Refinanced is secured by any
collateral (whether equally and ratably with, or junior to, the Administrative
Agent on behalf of the Lenders or otherwise), such Permitted Refinancing
Indebtedness may be secured by such collateral (including in respect of working
capital facilities of Foreign Subsidiaries otherwise permitted under this
Agreement only, any collateral pursuant to after-acquired property clauses to
the extent any such collateral secured the Indebtedness being Refinanced) on
terms no less


 


25





















 


favorable, taken as whole,
to the Administrative Agent on behalf of the Lenders than those contained in
the documentation governing the Indebtedness being Refinanced; and provided
further, that with respect to a Refinancing of Permitted Debt
Securities, such Permitted Financing Indebtedness shall meet the requirements
of clauses (i), (ii) and (iii) of the definition of “Permitted Debt Securities.”


 


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


 


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


 


“Preferred Stock” means the Series A Preferred Stock and the Series B Convertible
Preferred Stock, no par value, of Company.


 


“Preferred Stock Certificates of Designation” means the Series A Certificate of Designation
and the Certificate of Designations of the Series B Convertible Preferred Stock
of Company.


 


“Prime Rate” means the rate that DBTCA announces from time to time as its prime
lending rate, as in effect from time to time. The Prime Rate is a reference
rate and does not necessarily represent the lowest or best rate actually
charged to any customer.  DBTCA or any
other Lender may make commercial loans or other loans at rates of interest at,
above or below the Prime Rate.


 


“Pro Forma Basis” means, with respect to compliance with any test or covenant hereunder,
compliance with such test or covenant after giving effect to (a) the
Recapitalization, (b) any proposed Permitted Acquisition, (c) any Asset Sale of
a Subsidiary or operating entity for which historical financial statements for
the relevant period are available or (d) any incurrence of Indebtedness
(including pro forma adjustments arising out of events which are directly
attributable to the Recapitalization, the proposed Permitted Acquisition, Asset
Sale or incurrence of Indebtedness, are factually supportable and are expected
to have a continuing impact, in each case as determined on a basis consistent
with Article 11 of Regulation S-X of the Securities Act, as interpreted by
the Staff of the Securities and Exchange Commission, and such other adjustments
as are reasonably satisfactory to Administrative Agent, in each case as
certified by the chief financial officer of Company) using, for purposes of
determining such compliance, the historical financial statements of all
entities or assets so acquired or sold and the consolidated financial
statements of Company and its Subsidiaries, which shall be reformulated as if
such Permitted Acquisitions or Asset Sale, and all other Permitted Acquisitions
or Asset Sales that have been consummated during the period, and any
Indebtedness or other liabilities to be incurred or repaid in connection
therewith had been consummated and incurred or repaid at the beginning of such
period (and assuming that such Indebtedness to be incurred during such
measurement period bears interest during any portion of the applicable
measurement period prior


 


26





















 


to the relevant acquisition
at the weighted average of the interest rates applicable to outstanding Loans
incurred during such period).


 


“Pro Forma Compliance” means, at any date of determination, that
Company shall be in pro forma compliance with any or all of the covenants set
forth in subsections 7.6A and 7.6B, as applicable, as of the date of such
determination or the last day of the most recently completed Fiscal Quarter, as
the case may be (computed on the basis of (a) balance sheet amounts as of such
date and (b) income statement amounts for the most recently completed period of
four consecutive Fiscal Quarters for which financial statements shall have been
delivered to Administrative Agent and calculated on a Pro Forma Basis in
respect of the event giving rise to such determination).


 


“Pro Rata Share” means (i)  with respect to all payments, computations and other
matters relating to the Term Loan Commitment or the Term Loan of any Lender,
the percentage obtained by dividing (x) the Term Loan Exposure of that
Lender by (y) the aggregate Term Loan Exposure of all Lenders,
(ii) with respect to all payments, computations and other matters relating
to the Revolving Loan Commitment or the Revolving Loans of any Lender or any
Letters of Credit issued or participations therein deemed purchased by any
Lender or any assignments of any Swing Line Loans deemed purchased by any
Lender, the percentage obtained by dividing (x) the Revolving Loan
Exposure of that Lender by (y) the aggregate Revolving Loan
Exposure of all Lenders, and (iii) for all other purposes with respect to
each Lender, the percentage obtained by dividing (x) the sum of the
Term Loan Exposure of that Lender plus the Revolving Loan Exposure of
that Lender by (y) the sum of the aggregate Term Loan Exposure of
all Lenders plus the aggregate Revolving Loan Exposure of all Lenders,
in any such case as the applicable percentage may be adjusted by assignments
permitted pursuant to subsection 10.1. 
The initial Pro Rata Share of each Lender for purposes of each of
clauses (i), (ii) and (iii) of the preceding sentence is set forth opposite the
name of that Lender in Schedule 2.1 annexed hereto.


 


“Proceedings” means any action, suit, proceeding (whether administrative, judicial
or otherwise), governmental investigation or arbitration.


 


“Real Property Asset” means, at any time of determination, any
interest then owned by any Loan Party in any real property.


 


“Recapitalization” has the meaning assigned to that term in the recitals to this
Agreement.


 


“Refunded Swing Line Loans” has the meaning assigned to that term in subsection 2.1A(iii).


 


“Register” has the meaning assigned to that term in subsection 2.1D.


 


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


 


27





















 


“Reimbursement Date” has the meaning assigned to that term in subsection 3.3B.


 


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


 


“Request for Issuance” means a request substantially in the form of
Exhibit III annexed hereto.


 


“Requisite Lenders” means one or more Lenders having or holding Term Loan Exposure and/or
Revolving Loan Exposure and representing more than 50% of the sum of
(i) the aggregate Term Loan Exposure of all Lenders and (ii) the
aggregate Revolving Loan Exposure of all Lenders.


 


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


 


“Revolving Lender” means a Lender that has a Revolving Loan Commitment and/or that has an
outstanding Revolving Loan.


 


“Revolving Loan Commitment” means the commitment of a Revolving Lender
to make Revolving Loans to Company pursuant to subsections 2.1A(ii) and (iv),
and “Revolving Loan Commitments”
means such commitments of all Revolving Lenders in the aggregate.


 


“Revolving Loan Commitment Amount” means, at any date, the aggregate amount of
the Revolving Loan Commitments of all Revolving Lenders.


 


“Revolving Loan Commitment Termination Date” means March 1, 2010.


 


“Revolving Loan Exposure”, with respect to any Revolving Lender,
means, as of any date of determination (i) prior to the termination of the
Revolving Loan Commitments, the amount of that Lender’s Revolving Loan
Commitment, and (ii) after the termination of the Revolving Loan
Commitments, the sum of (a) the aggregate outstanding principal amount of
the


 


28





















 


Revolving Loans of that
Lender plus (b) in the event that Lender is an Issuing Lender, the
aggregate Letter of Credit Usage in respect of all Letters of Credit issued by
that Lender (in each case net of any participations purchased by other Lenders
in such Letters of Credit or in any unreimbursed drawings thereunder) plus
(c) the aggregate amount of all participations purchased by that Lender in
any outstanding Letters of Credit or any unreimbursed drawings under any
Letters of Credit plus (d) in the case of Swing Line Lender, the
aggregate outstanding principal amount of all Swing Line Loans (net of any
assignments thereof deemed purchased by other Revolving Lenders) plus
(e) the aggregate amount of all assignments deemed purchased by that
Lender in any outstanding Swing Line Loans.


 


“Revolving Loans” means, collectively, the Loans made by Revolving Lenders to Company
pursuant to subsections 2.1A(ii) and (iv) (including Incremental Revolving
Loans).


 


“Revolving Notes” means any promissory notes of Company issued pursuant to subsection 2.1E
to evidence the Revolving Loans of any Revolving Lenders, substantially in the
form of Exhibit V annexed hereto.


 


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


 


“Securities Account” means a “securities account” as defined in Article 8 of the UCC.


 


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


 


“Security Agreement” means the Security Agreement executed and delivered on the Closing
Date, substantially in the form of Exhibit XIII annexed hereto.


 


“Series A Certificate of Designation” means the Certificate of Designations of
Series A Convertible Preferred Stock of Company


 


“Series A Preferred Stock” means the Series A Convertible Preferred
Stock, no par value, of Company


 


“Solvent”, with respect to any Person, means that as of the date of
determination both (i)(a) the then fair saleable value of the property of
such Person is (1) greater than the total amount of liabilities (including
contingent liabilities but without duplication of any underlying liability
related thereto) of such Person and (2) not less than the amount that will
be required to pay the probable liabilities on such Person’s then existing
debts as they become absolute and due considering all financing alternatives
and potential asset sales reasonably available to such


 


29





















 


Person; (b) such Person’s
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not
intend to incur, or believe (nor should it reasonably believe) that it will
incur, debts beyond its ability to pay such debts as they become due; and (ii)
such Person is “solvent” within the meaning given that term and similar terms
under applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount
of any contingent liability at any time shall be computed as the amount that,
in light of all of the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.


 


“Standby Letter of Credit” means any letter of credit or similar
instrument other than a Commercial Letter of Credit.


 


“Stockholders Agreement” means the Stockholders Agreement, dated as
of March 19, 2003, among Berkshire Fund V, Limited Partnership, Berkshire
Fund VI, Limited Partnership, Berkshire Fund V Investment Corp., Berkshire Fund
VI Investment Corp., Berkshire Investors LLC, Greenbriar Co-Investment
Partners, L.P., Greenbriar Equity Fund, L.P. 
and Hexcel.


 


“Subordinated Indebtedness” means (i) the New Senior Subordinated Notes,
(ii) Permitted Debt Securities and (iii) any other Indebtedness of Company
incurred from time to time and subordinated in right of payment to the
Obligations.


 


“Subsidiary”, with respect to any Person, means any corporation, partnership,
trust, limited liability company, association, Joint Venture or other business
entity of which more than 50% of the total voting power of shares of stock or
other ownership interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the members of the Governing Body is at
the time owned or controlled, directly or indirectly, by that Person or one or
more of the other Subsidiaries of that Person or a combination thereof.


 


“Subsidiary Guarantor” means any Material Domestic Subsidiary of
Company that executes and delivers a counterpart of the Subsidiary Guaranty on
the Closing Date or from time to time thereafter pursuant to subsection 6.8,
or any other Subsidiary of Company that elects to execute and deliver a
counterpart of the Subsidiary Guaranty and otherwise comply with the provisions
of subsection 6.8.


 


“Subsidiary Guaranty” means the Subsidiary Guaranty executed and
delivered by existing Material Domestic Subsidiaries of Company on the Closing
Date and to be executed and delivered by additional Material Domestic
Subsidiaries of Company from time to time thereafter in accordance with subsection 6.8
and any other Subsidiary of Company that elects to comply with the provisions
of subsection 6.8, substantially in the form of Exhibit XII annexed
hereto.


 


“Supplemental Collateral Agent” has the meaning assigned to that term in subsection 9.1B.


 


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“Swap Counterparty” means a Lender or an Affiliate of a Lender that has entered into a
Hedge Agreement with Company or one of its Subsidiaries (including any Person
who is a Lender (and any Affiliate thereof) at the time of entering into a
Hedge Agreement but subsequently ceases to be a Lender), the obligations under
which are secured pursuant to the Collateral Documents and guarantied pursuant
to the Subsidiary Guaranty.


 


“Swing Line Lender” means DBTCA, or any Person serving as a successor Administrative Agent
hereunder, in its capacity as Swing Line Lender hereunder.


 


“Swing Line Loan Commitment” means the commitment of Swing Line Lender to
make Swing Line Loans to Company pursuant to subsection 2.1A(iii).


 


“Swing Line Loans” means the Loans made by Swing Line Lender to Company pursuant to subsection 2.1A(iii).


 


“Swing Line Note” means any promissory note of Company issued pursuant to subsection 2.1E
to evidence the Swing Line Loans of Swing Line Lender, substantially in the
form of Exhibit VI annexed hereto.


 


“Synthetic Lease Obligation” means the monetary obligation of a Person
under a so-called synthetic, off-balance sheet or tax retention lease.


 


“Tax”
or “Taxes” means any present or
future tax, levy, impost, duty, fee, assessment, deduction, withholding or
other charge of any nature and whatever called, by whomsoever, on whomsoever
and wherever imposed, levied, collected, withheld or assessed, including
interest, penalties, additions to tax and any similar liabilities with respect
thereto.


 


“Tender Offer” means the offer by Company to purchase all of the outstanding Existing
Senior Secured Notes pursuant to the Tender Offer Materials.


 


“Tender Offer Materials” means Company’s Offer to Purchase and
Consent Solicitation Statement dated January 31, 2005 relating to the
Existing Senior Secured Notes, together with all exhibits, supplements and
amendments thereto and any other amendments prior to the date hereof that
relate only to any extension of time during which the offer to purchase remains
outstanding and other amendments that are approved by Administrative Agent.


 


“Term Loan Commitment” means a Tranche B Term Loan Commitment or an
Incremental Term Loan Commitment.


 


“Term Loan Exposure”, with respect to any Lender, means, as of any date of determination,
the sum, without duplication, of (i) the amount of that Lender’s unfunded
Tranche B Term Loan Commitment, plus (ii) the outstanding principal
amount of any Tranche B Term Loan of that Lender, plus (iii) the amount
of that Lender’s unfunded Incremental Term Loan Commitment, plus, (iv)
the outstanding principal amount of any Incremental Term Loan.


 


“Term Loans” means, collectively, the Tranche B Term Loans and Incremental Term
Loans.


 


31





















 


“Title Company” means one or more title insurance companies reasonably satisfactory to
Administrative Agent.


 


“Total Utilization of Revolving Loan Commitments” means, as at any date of determination, the
sum of (i) the aggregate principal amount of all outstanding Revolving Loans plus
(ii) the aggregate principal amount of all outstanding Swing Line Loans plus
(iii) the Letter of Credit Usage.


 


“Tranche B Term Loan Commitment” means the commitment of a Lender to make a
Tranche B Term Loan to Company pursuant to subsection 2.1A(i), and “Tranche B Term Loan Commitments” means
such commitments of all Lenders in the aggregate.


 


“Tranche B Term Loan Maturity Date” means March 1, 2012.


 


“Tranche B Term Loans” means the Loans made by Lenders to Company
pursuant to subsection 2.1A(i).


 


“Tranche B Term Notes” means any promissory notes of Company issued
pursuant to subsection 2.1E to evidence the Tranche B Term Loans of any
Lenders, substantially in the form of Exhibit IV annexed hereto.


 


“UCC”
means the Uniform Commercial Code as in effect in any applicable jurisdiction.


 


“Unasserted Obligations” means, at any time, obligations for taxes,
costs, indemnifications, reimbursements, damages and other liabilities (except
for (i) the principal of and interest on, and fees relating to, any
Indebtedness and (ii) contingent reimbursement obligations in respect of
amounts that may be drawn under Letters of Credit) in respect of which no claim
or demand for payment has been made (or, in the case of obligations for
indemnification, no notice for indemnification has been issued by the
Indemnitee) at such time.


 


1.2                               Accounting Terms;
Utilization of GAAP for Purposes of Calculations Under Agreement.


 


Except
as otherwise expressly provided in this Agreement, all accounting terms not
otherwise defined herein shall have the meanings assigned to them in conformity
with GAAP.  Financial statements and
other information required to be delivered by Company to Lenders pursuant to
clauses (ii), (iii), (v) and (xii) of subsection 6.1 shall be prepared in
accordance with GAAP as in effect at the time of such preparation (and
delivered together with the reconciliation statements provided for in subsection 6.1(v)).  Calculations in connection with the
definitions, covenants and other provisions of this Agreement shall utilize
GAAP as in effect on the date of determination, applied in a manner consistent
with that used in preparing the financial statements referred to in subsection 5.3.
If at any time any change in GAAP would affect the computation of any financial
ratio or requirement set forth in any Loan Document, and Company,
Administrative Agent or Requisite Lenders shall so request, Administrative
Agent, Lenders and Company shall negotiate in good faith to amend such ratio or
requirement to


 


32





















 


preserve the original intent
thereof in light of such change in GAAP (subject to the approval of Requisite
Lenders), provided that, until so amended, such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein
and Company shall provide to Administrative Agent and Lenders reconciliation
statements provided for in subsection 6.1(v).


 


1.3                               Other Definitional
Provisions and Rules of Construction.


 


A.  Any of the terms defined herein may, unless
the context otherwise requires, be used in the singular or the plural,
depending on the reference.


 


B.  References to “Sections” and “subsections”
shall be to Sections and subsections, respectively, of this Agreement unless
otherwise specifically provided.  Section and
subsection headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any
other purpose or be given any substantive effect.


 


C.  The use in any of the Loan Documents of the
word “include” or “including”, when following any general statement, term or
matter, shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to
similar items or matters, whether or not nonlimiting language (such as “without
limitation” or “but not limited to” or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or
matters that fall within the broadest possible scope of such general statement,
term or matter.


 


D.  Unless otherwise expressly provided herein,
references to Organizational Documents, agreements (including the Loan
Documents) and other contractual instruments shall be deemed to include all
subsequent amendments, restatements, extensions, supplements and other
modifications thereto.


 


Section 2.              AMOUNTS AND TERMS OF
COMMITMENTS AND LOANS


 


2.1                               Commitments; Making of
Loans; the Register; Optional Notes.


 


A.  Commitments. 
Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Company herein set forth, each
Lender hereby severally agrees to make the Loans as described in subsections
2.1A(i), 2.1A(ii) and, as applicable, 2.1A(iv) and Swing Line Lender hereby
agrees to make the Swing Line Loans as described in subsection 2.1A(iii).


 


(i)            Tranche B Term Loans.  Each
Lender that has a Tranche B Term Loan Commitment severally agrees to lend to
Company an amount not exceeding its Pro Rata Share of the aggregate amount of
the Tranche B Term Loan Commitments.  The
amount of each Lender’s Tranche B Term Loan Commitment is set forth opposite
its name on Schedule 2.1 annexed hereto and the aggregate amount of
the Tranche B Term Loan Commitments is $225,000,000; provided that the
amount of the Tranche B Term Loan Commitment of each Lender shall be adjusted
to give effect to any assignment of such


 


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Tranche
B Term Loan Commitment pursuant to subsection 10.1B.  The Tranche B Term Loan shall be incurred by
Company pursuant to two drawings, with (x) the first such drawing to be made on
the Closing Date for the purposes identified in subsection 2.5A(i) and (y)
the second such drawing to be made on the Final Redemption Date for the
purposes identified in subsection 2.5A(ii).  Each Lender’s Tranche B Term Loan Commitment
shall expire immediately and without further action on the Final Redemption
Date if the Tranche B Term Loans that are drawable pursuant to clause (y) in
the immediately preceding sentence are not drawn on or before that date.  Amounts borrowed under this subsection 2.1A(i)
and subsequently repaid or prepaid may not be reborrowed.


 


(ii)           Revolving Loans.  Each
Revolving Lender severally agrees, subject to the limitations set forth below
with respect to the maximum amount of Revolving Loans permitted to be
outstanding from time to time, to lend to Company from time to time during the
period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date an aggregate amount not exceeding its Pro Rata Share of the
aggregate amount of the Revolving Loan Commitments to be used for the purposes
identified in subsection 2.5B.  The
original amount of each Revolving Lender’s Revolving Loan Commitment is set
forth opposite its name on Schedule 2.1 annexed hereto and the
original Revolving Loan Commitment Amount is $125,000,000; provided that
the amount of the Revolving Loan Commitment of each Revolving Lender shall be
adjusted to give effect to any assignment of such Revolving Loan Commitment
pursuant to subsection 10.1B and shall be reduced from time to time by the
amount of any reductions thereto made pursuant to subsection 2.4.  Each Revolving Lender’s Revolving Loan
Commitment shall expire on the Revolving Loan Commitment Termination Date and
all Revolving Loans and all other amounts owed hereunder with respect to the
Revolving Loans and the Revolving Loan Commitments shall be paid in full no
later than that date.  Amounts borrowed
under this subsection 2.1A(ii) may be repaid and reborrowed to but
excluding the Revolving Loan Commitment Termination Date.  Notwithstanding the foregoing, any Other
Revolving Loans shall be due and payable as set forth in the relevant Incremental
Assumption Agreement.


 


Anything contained in this Agreement to the contrary notwithstanding,
the Revolving Loans and the Revolving Loan Commitments shall be subject to the
limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitment Amount then in
effect.


 


(iii)          Swing Line Loans.


 


(a)           General Provisions. 
Swing Line Lender hereby agrees, subject to the limitations set forth in
the last paragraph of subsection 2.1A(ii) and set forth below with respect
to the maximum amount of Swing Line Loans permitted to be outstanding from time
to time, to make a portion of the Revolving Loan Commitments available to
Company from time to time during the period from the Closing Date to but
excluding the Revolving Loan Commitment Termination Date by making Swing Line
Loans to Company in an aggregate amount not


 


34





















 


exceeding
the amount of the Swing Line Loan Commitment to be used for the purposes
identified in subsection 2.5B, notwithstanding the fact that such Swing
Line Loans, when aggregated with Swing Line Lender’s outstanding Revolving
Loans and Swing Line Lender’s Pro Rata Share of the Letter of Credit Usage then
in effect, may exceed Swing Line Lender’s Revolving Loan Commitment.  The original amount of the Swing Line Loan
Commitment is $15,000,000; provided that any reduction of the Revolving
Loan Commitment Amount made pursuant to subsection 2.4 that reduces the
Revolving Loan Commitment Amount to an amount less than the then current amount
of the Swing Line Loan Commitment shall result in an automatic corresponding
reduction of the amount of the Swing Line Loan Commitment to the amount of the
Revolving Loan Commitment Amount, as so reduced, without any further action on
the part of Company, Administrative Agent or Swing Line Lender.  The Swing Line Loan Commitment shall expire
on the Revolving Loan Commitment Termination Date and all Swing Line Loans and
all other amounts owed hereunder with respect to the Swing Line Loans shall be
paid in full no later than that date. 
Amounts borrowed under this subsection 2.1A(iii) may be repaid and
reborrowed to but excluding the Revolving Loan Commitment Termination Date.


 


(b)           Swing Line Loan Prepayment with Proceeds of
Revolving Loans.  With respect to any Swing Line Loans that
have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i),
Swing Line Lender may, at any time in its sole and absolute discretion, deliver
to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (New
York City time) on the first Business Day in advance of the proposed Funding
Date, a notice requesting Revolving Lenders to make Revolving Loans that are
Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing
Line Loans (the “Refunded Swing Line Loans”)
outstanding on the date such notice is given. 
Company hereby authorizes the giving of any such notice and the making
of any such Revolving Loans.  Anything
contained in this Agreement to the contrary notwithstanding, (1) the
proceeds of such Revolving Loans made by Revolving Lenders other than Swing
Line Lender shall be immediately delivered by Administrative Agent to Swing
Line Lender (and not to Company) and applied to repay a corresponding portion of
the Refunded Swing Line Loans and (2) on the day such Revolving Loans are
made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall
be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line
Lender, and such portion of the Swing Line Loans deemed to be so paid shall no
longer be outstanding as Swing Line Loans and shall no longer be due under the
Swing Line Note, if any, of Swing Line Lender but shall instead constitute part
of Swing Line Lender’s outstanding Revolving Loans and shall be due under the
Revolving Note, if any, of Swing Line Lender. 
Company hereby authorizes Administrative Agent and Swing Line Lender to
charge Company’s accounts with Administrative Agent and Swing Line Lender (up
to the amount available in each such account) in order to immediately pay Swing
Line Lender the amount of the Refunded Swing Line Loans to the


 


35





















 


extent
the proceeds of such Revolving Loans made by Revolving Lenders, including the
Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to
repay in full the Refunded Swing Line Loans. 
Administrative Agent shall promptly notify Company of any such charges.  If any portion of any such amount paid (or
deemed to be paid) to Swing Line Lender should be recovered by or on behalf of
Company from Swing Line Lender in any bankruptcy proceeding, in any assignment
for the benefit of creditors or otherwise, the loss of the amount so recovered
shall be ratably shared among all Lenders in the manner contemplated by subsection 10.5.


 


(c)           Swing Line Loan Assignments.  On
the Funding Date of each Swing Line Loan, each Revolving Lender shall be deemed
to, and hereby agrees to, purchase an assignment of such Swing Line Loan in an
amount equal to its Pro Rata Share.  If
for any reason (1) Revolving Loans are not made upon the request of Swing Line
Lender as provided in the immediately preceding paragraph in an amount
sufficient to repay any amounts owed to Swing Line Lender in respect of such
Swing Line Loan or (2) the Revolving Loan Commitments are terminated at a time
when such Swing Line Loan is outstanding, upon notice from Swing Line Lender as
provided below, each Revolving Lender shall fund the purchase of such
assignment in an amount equal to its Pro Rata Share (calculated, in the case of
the foregoing clause (2), immediately prior to such termination of the
Revolving Loan Commitments) of the unpaid amount of such Swing Line Loan
together with accrued interest thereon. 
Upon one Business Day’s notice from Swing Line Lender, each Revolving
Lender shall deliver to Swing Line Lender such amount in same day funds at the
Funding and Payment Office.  In order to
further evidence such assignment (and without prejudice to the effectiveness of
the assignment provisions set forth above), each Revolving Lender agrees to
enter into an Assignment Agreement at the request of Swing Line Lender in form
and substance reasonably satisfactory to Swing Line Lender.  In the event any Revolving Lender fails to
make available to Swing Line Lender any amount as provided in this paragraph,
Swing Line Lender shall be entitled to recover such amount on demand from such
Revolving Lender together with interest thereon at the rate customarily used by
Swing Line Lender for the correction of errors among banks for three Business
Days and thereafter at the Base Rate.  In
the event Swing Line Lender receives a payment of any amount with respect to
which other Revolving Lenders have funded the purchase of assignments as provided
in this paragraph, Swing Line Lender shall promptly distribute to each such
other Revolving Lender its Pro Rata Share of such payment.


 


(d)           Revolving Lenders’ Obligations. 
Anything contained herein to the contrary notwithstanding, each
Revolving Lender’s obligation to make Revolving Loans for the purpose of
repaying any Refunded Swing Line Loans pursuant to subsection 2.1A(iii)(b)
and each Revolving Lender’s obligation to purchase an assignment of any unpaid
Swing Line Loans pursuant to the immediately preceding paragraph shall be
absolute and unconditional and shall not be affected


 


36





















 


by
any circumstance, including (1) any set-off, counterclaim, recoupment,
defense or other right which such Revolving Lender may have against Swing Line
Lender, Company or any other Person for any reason whatsoever; (2) the
occurrence or continuation of an Event of Default or a Potential Event of
Default; (3) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any of
its Subsidiaries; (4) any breach of this Agreement or any other Loan
Document by any party thereto; or (5) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing; provided
that such obligations of each Revolving Lender are subject to the condition
that (x) Swing Line Lender believed in good faith that all conditions
under Section 4 to the making of the applicable Refunded Swing Line Loans or
other unpaid Swing Line Loans, as the case may be, were satisfied at the time
such Refunded Swing Line Loans or unpaid Swing Line Loans were made or
(y) the satisfaction of any such condition not satisfied had been waived
in accordance with subsection 10.6 prior to or at the time such Refunded
Swing Line Loans or other unpaid Swing Line Loans were made.


 


(iv)          Each Lender having an Incremental Term Loan Commitment or an
Incremental Revolving Loan Commitment agrees, subject to the terms and
conditions set forth in the applicable Incremental Assumption Agreement, to
make Incremental Term Loans and/or Incremental Revolving Loans to Company, in
an aggregate principal amount not to exceed its Incremental Term Loan
Commitment or Incremental Revolving Loan Commitment, as the case may be.


 


B.  Borrowing Mechanics. 
Loans made on any Funding Date (other than Swing Line Loans, Revolving
Loans made pursuant to a request by Swing Line Lender pursuant to subsection 2.1A(iii)
or Revolving Loans made pursuant to subsection 3.3B) shall be in an
aggregate minimum amount of $500,000 and multiples of $100,000 in excess of
that amount; provided that Loans made as Eurodollar Rate Loans with a
particular Interest Period shall be in an aggregate minimum amount of
$1,000,000 and multiples of $100,000 in excess of that amount.  Swing Line Loans made on any Funding Date
shall be in an aggregate minimum amount of $500,000 and multiples of $100,000
in excess of that amount.  Whenever
Company desires that Lenders make Term Loans or Revolving Loans it shall
deliver to Administrative Agent a duly executed Notice of Borrowing no later
than 12:00 Noon (New York City time) at least three Business Days in advance of
the proposed Funding Date (in the case of a Eurodollar Rate Loan) or at least one
Business Day in advance of the proposed Funding Date (in the case of a Base
Rate Loan).  Whenever Company desires
that Swing Line Lender make a Swing Line Loan, it shall deliver to
Administrative Agent a duly executed Notice of Borrowing no later than 10:00
A.M. (New York City time) on the proposed Funding Date.  Term Loans and Revolving Loans may be
continued as or converted into Base Rate Loans and Eurodollar Rate Loans in the
manner provided in subsection 2.2D. 
In lieu of delivering a Notice of Borrowing, Company may give
Administrative Agent telephonic notice by the required time of any proposed
borrowing under this subsection 2.1B; provided that such notice
shall be promptly confirmed in writing by delivery of a duly executed Notice of
Borrowing to Administrative Agent on or before the applicable Funding Date.


 


37





















 


Neither
Administrative Agent nor any Lender shall incur any liability to Company in
acting upon any telephonic notice referred to above that Administrative Agent
believes in good faith to have been given by an Officer or other person
authorized to borrow on behalf of Company or for otherwise acting in good faith
under this subsection 2.1B or under subsection 2.2D, and upon funding
of Loans by Lenders, and upon conversion or continuation of the applicable
basis for determining the interest rate with respect to any Loans pursuant to
subsection 2.2D, in each case in accordance with this Agreement, pursuant
to any such telephonic notice Company shall have effected Loans or a conversion
or continuation, as the case may be, hereunder.


 


Except
as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice of Borrowing
for, or a Notice of Conversion/Continuation for conversion to, or continuation
of, a Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Company shall be bound to make a borrowing or to effect a conversion or
continuation in accordance therewith.


 


Notwithstanding
the foregoing provisions on this subsection 2.1B, no Eurodollar Rate Loans
may be made and no Base Rate Loan may be converted into a Eurodollar Rate Loan
until the earlier of the fifteenth business day after the Closing Date and the
date specified by Administrative Agent to Company on which the primary
syndication of the Loans has been completed.


 


C.  Disbursement of
Funds.  All Term Loans and Revolving Loans shall be
made by Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that neither Administrative Agent nor any Lender
shall be responsible for any default by any other Lender in such other Lender’s
obligation to make a Loan requested hereunder nor shall the amount of the
Commitment of any Lender to make the particular type of Loan requested be
increased or decreased as a result of a default by any other Lender in such
other Lender’s obligation to make a Loan requested hereunder.  Promptly after receipt by Administrative
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic
notice in lieu thereof), Administrative Agent shall notify each Lender for that
type of Loan or Swing Line Lender, as the case may be, of the proposed
borrowing.  Each such Lender (other than
Swing Line Lender) shall make the amount of its Loan available to
Administrative Agent not later than 12:00 Noon (New York City time) on the
applicable Funding Date, and Swing Line Lender shall make the amount of its
Swing Line Loan available to Administrative Agent not later than 2:00 P.M. (New
York City time) on the applicable Funding Date, in each case in same day funds
in Dollars, at the Funding and Payment Office. 
Except as provided in subsection 2.1A(iii) and subsection 3.3B
with respect to Revolving Loans used to repay Refunded Swing Line Loans or to
reimburse any Issuing Lender for the amount of a drawing under a Letter of
Credit issued by it, upon satisfaction or waiver of the conditions precedent
specified in subsections 4.1 (in the case of Loans made on the Closing Date),
4.2 (in the case of Loans made on the Final Redemption Date) and 4.3 (in the
case of all Loans), Administrative Agent shall make the proceeds of such Loans
available to Company on the applicable Funding Date by causing an amount of same
day funds in Dollars, equal to the proceeds of all such Loans received by
Administrative Agent from Lenders to be credited to the account of Company at
the Funding and Payment Office.


 


38





















 


Unless
Administrative Agent shall have been notified by any Lender prior to a Funding
Date that such Lender does not intend to make available to Administrative Agent
the amount of such Lender’s Loan requested on such Funding Date, Administrative
Agent may assume that such Lender has made such amount available to
Administrative Agent on such Funding Date and Administrative Agent may, in its
sole discretion, but shall not be obligated to, make available to Company a
corresponding amount on such Funding Date. 
If such corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative Agent shall be entitled to
recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Funding Date until the date such
amount is paid to Administrative Agent, at the customary rate set by
Administrative Agent for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. 
If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent’s demand therefor, Administrative Agent shall promptly
notify Company and Company shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans.  Nothing in this subsection 2.1C shall be
deemed to relieve any Lender from its obligation to fulfill its Commitments
hereunder or to prejudice any rights that Company may have against any Lender
as a result of any default by such Lender hereunder.


 


D.  The Register.  Administrative Agent, acting for these purposes solely as an agent of
Company (it being acknowledged that Administrative Agent, in such capacity, and
its officers, directors, employees, agents and affiliates shall constitute
Indemnitees under subsection 10.3), shall maintain (and make available for
inspection by Company and Lenders upon reasonable prior notice at reasonable
times at its address referred to in subsection 10.8) a register for the
recordation of, and shall record, the names and addresses of Lenders and the
respective amounts of the Tranche B Term Loan Commitment, Revolving Loan
Commitment, Swing Line Loan Commitment, Incremental Term Loan Commitments,
Incremental Revolving Loan Commitments, Tranche B Term Loans, Revolving Loans,
Swing Line Loans, Incremental Term Loans and Incremental Revolving Loans of
each Lender from time to time (the “Register”).  Company, Administrative Agent and Lenders
shall deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the corresponding Commitments and Loans listed therein
for all purposes hereof; all amounts owed with respect to any Commitment or
Loan shall be owed to the Lender listed in the Register as the owner thereof;
and any request, authority or consent of any Person who, at the time of making
such request or giving such authority or consent, is listed in the Register as
a Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans.  Each Lender shall record on its internal
records the amount of its Loans and Commitments and each payment in respect
hereof, and any such recordation shall be conclusive and binding on Company,
absent manifest error, subject to the entries in the Register, which shall,
absent manifest error, govern in the event of any inconsistency with any Lender’s
records.  Failure to make any recordation
in the Register or in any Lender’s records, or any error in such recordation,
shall not affect any Loans or Commitments or any Obligations in respect of any
Loans.


 


39





















 


E.  Optional Notes.  If
so requested by any Lender by written notice to Company (with a copy to
Administrative Agent) at least two Business Days’ prior to the Closing Date or
upon two Business Days’ written notice any time thereafter, Company shall
execute and deliver to such Lender (and/or, if applicable and if so specified
in such notice, to any Person who is an assignee of such Lender pursuant to subsection 10.1)
on the Closing Date (or, if such notice is delivered after the Closing Date,
promptly after Company’s receipt of such notice) a promissory note or
promissory notes to evidence, as applicable, such Lender’s Tranche B Term Loan,
Revolving Loans or Swing Line Loans, substantially in the form of Exhibit IV,
Exhibit V or Exhibit VI annexed hereto, respectively, with
appropriate insertions, or such Lender’s Incremental Term Loans or Incremental
Revolving Loans.


 


2.2                               Interest on the Loans.


 


A.  Rate of Interest. 
Subject to the provisions of subsections 2.2E, 2.6 and 2.7, each
Revolving Loan shall bear interest on the unpaid principal amount thereof from
the date made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Base Rate or the Eurodollar Rate, as
applicable.  Subject to the provisions of
subsections 2.2E, 2.6 and 2.7, each Tranche B Term Loan shall bear interest on
the unpaid principal amount thereof from the date made through maturity at a
rate determined by reference to the Eurodollar Rate.  Subject to the provisions of subsection 2.7,
each Swing Line Loan shall bear interest on the unpaid principal amount thereof
from the date made through maturity (whether by acceleration or otherwise) at a
rate determined by reference to the Base Rate. 
The applicable basis for determining the rate of interest with respect
to any Revolving Loan shall be selected by Company initially at the time a
Notice of Borrowing is given with respect to such Loan pursuant to subsection 2.1B
(subject to the last sentence of subsection 2.1B), and the basis for
determining the interest rate with respect to any Revolving Loan may be changed
from time to time pursuant to subsection 2.2D (subject to the last
sentence of subsection 2.1B).  If on
any day a Term Loan or Revolving Loan is outstanding with respect to which
notice has not been delivered to Administrative Agent in accordance with the
terms of this Agreement specifying the applicable basis for determining the
rate of interest, then for that day that Loan shall bear interest determined by
reference to the Base Rate.


 


(i)            Subject to the provisions of subsections 2.2E,
2.2G and 2.7, the Revolving Loans shall bear interest through maturity as
follows:


 


(a)           if a Base Rate Loan, then at the sum of the Base Rate plus the
Base Rate Margin set forth in the table below opposite the applicable
Consolidated Leverage Ratio for the four Fiscal Quarter period for which the
applicable Compliance Certificate has been delivered pursuant to subsection 6.1(iv);
or


 


(b)           if a Eurodollar Rate Loan, then at the sum of the Eurodollar Rate plus
the Eurodollar Rate Margin set forth in the table below opposite the applicable
Consolidated Leverage Ratio for the four Fiscal Quarter period for which the
applicable Compliance Certificate has been delivered pursuant to subsection 6.1(iv):


 


40





















 




	
   

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  	
  Eurodollar Rate

  Margin

  	
   

  	
  Base

  Rate Margin

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to:

  	
   

  	
  3:00:1.00

  	
   

  	
  2.00%

  	
   

  	
  1.00%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to but less than:

  	
   

  	
  2.50:1.00

  3.00:1.00

  	
   

  	
  1.75%

  	
   

  	
  0.75%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to but less than:

  	
   

  	
  2.00:1.00

  2.50:1.00

  	
   

  	
  1.50%

  	
   

  	
  0.50%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than:

  	
   

  	
  2.00:1.00

  	
   

  	
  1.25%

  	
   

  	
  0.25%

  	
   

  






 


provided that, for the first six months after the
Closing Date, the applicable margin for Revolving Loans that are Eurodollar
Rate Loans shall be 2.00% per annum and for Revolving Loans that are Base Rate
Loans shall be 1.00% per annum.


 


(ii)           Subject to the provisions of subsections 2.2E, 2.2G and 2.7, the
Tranche B Term Loans shall bear interest through maturity as follows:


 


(a)           if a Base Rate Loan (as a consequence of any mandatory conversion from
a Eurodollar Rate Loan pursuant to subsections 2.2E or 2.6 or otherwise under
this Agreement), then at the sum of the Base Rate plus the Base Rate
Margin set forth in the table below opposite the applicable Consolidated
Leverage Ratio for the four Fiscal Quarter period for which the applicable
Compliance Certificate has been delivered pursuant to subsection 6.1(iv);
or


 


(b)           if a Eurodollar Rate Loan, then at the sum of the Eurodollar Rate plus
the Eurodollar Rate Margin set forth in the table below opposite the applicable
Consolidated Leverage Ratio for the four Fiscal Quarter period for which the
applicable Compliance Certificate has been delivered pursuant to subsection 6.1(iv):


 




	
   

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  	
  Eurodollar Rate

  Margin

  	
   

  	
  Base

  Rate Margin

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to:

  	
   

  	
  2.00:1.00

  	
   

  	
  1.75%

  	
   

  	
  0.75%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than:

  	
   

  	
  2.00:1.00

  	
   

  	
  1.50%

  	
   

  	
  0.50%

  	
   

  






 


41





















 


provided that, for the first six months after the
Closing Date, the applicable margin for the Tranche B Term Loans that are
Eurodollar Rate Loans shall be 1.75% per annum and for Tranche B Term Loans
that are Base Rate Loans (as a consequence of any mandatory conversion from a
Eurodollar Rate Loan pursuant to subsections 2.2E or 2.6 or otherwise under
this Agreement) shall be 0.75% per annum.


 


(iii)          Upon delivery of the Compliance Certificate by Company to
Administrative Agent pursuant to subsection 6.1(iv), the Base Rate Margin
and the Eurodollar Rate Margin shall automatically be adjusted in accordance
with such Compliance Certificate, such adjustment to become effective on the
next succeeding Business Day following the receipt by Administrative Agent of
such Compliance Certificate (subject to the provisions of the foregoing clauses
(i) and (ii)); provided that, if at any time a Compliance Certificate is
not delivered at the time required pursuant to subsection 6.1(iv), from
the time such Compliance Certificate was required to be delivered until the
Business Day next succeeding delivery of such Compliance Certificate, the
applicable margins shall be the maximum percentage amount for the relevant Loan
set forth above.


 


(iv)          Subject to the provisions of subsections 2.2E, 2.2G and 2.7, the Swing
Line Loans shall bear interest through maturity at the sum of the Base Rate plus
the applicable Base Rate Margin for Revolving Loans minus a rate equal
to the commitment fee percentage then in effect as determined pursuant to subsection 2.3A.


 


(v)           Subject to the provisions of subsections 2.2E, 2.2G and 2.7,
Incremental Term Loans and Incremental Revolving Loans shall bear interest
through maturity at the rates specified in the applicable Incremental
Assumption Agreements.


 


B.  Interest Periods.  In
connection with each Eurodollar Rate Loan, Company may, pursuant to the
applicable Notice of Borrowing or Notice of Conversion/Continuation, as the
case may be, select an interest period (each an “Interest Period”) to be applicable to such Loan, which
Interest Period shall be, at Company’s option, either a one, two, three or six
month period; provided that:


 


(i)            the initial Interest Period for any
Eurodollar Rate Loan shall commence on the Funding Date in respect of such
Loan, in the case of a Loan initially made as a Eurodollar Rate Loan, or on the
date specified in the applicable Notice of Conversion/Continuation, in the case
of a Base Rate Loan converted to a Eurodollar Rate Loan;


 


(ii)           in the case of immediately successive Interest Periods applicable to a
Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on the
day on which the next preceding Interest Period expires;


 


42





















 


(iii)          if an Interest Period would otherwise expire on a day that is not a
Business Day, such Interest Period shall expire on the next succeeding Business
Day; provided that, if any Interest Period would otherwise expire on a
day that is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day;


 


(iv)          any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to clause (v)
of this subsection 2.2B, end on the last Business Day of a calendar month;


 


(v)           no Interest Period with respect to any portion of the Tranche B
Term Loans shall extend beyond the Tranche B Term Loan Maturity Date, no
Interest Period with respect to any portion of the Revolving Loans shall extend
beyond the Revolving Loan Commitment Termination Date, no Interest Period with
respect to any portion of any Incremental Term Loans shall extend beyond the
applicable Incremental Term Loan Maturity Date and no Interest Period with
respect to any portion of any Incremental Revolving Loan shall extend beyond
the applicable Incremental Revolving Loan Commitment Termination Date;


 


(vi)          no Interest Period with respect to any type of Term Loans shall extend
beyond a date on which Company is required to make a scheduled payment of
principal of such type of Term Loans, unless the sum of (a) the aggregate
principal amount of such type of Term Loans that are Base Rate Loans plus
(b) aggregate principal amount of such type of Term Loans that are Eurodollar
Rate Loans with Interest Periods expiring on or before such date equals or
exceeds the principal amount required to be paid on such type of Term Loans on
such date;


 


(vii)         there shall be no more than ten (10) Interest Periods outstanding at
any time; and


 


(viii)        in the event Company fails to specify an Interest Period for any
Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Company shall be deemed to have selected an Interest
Period of one month.


 


C.  Interest Payments. 
Subject to the provisions of subsection 2.2E, interest on each Loan
shall be payable in arrears on and to each Interest Payment Date applicable to
that Loan, upon any prepayment of that Loan (to the extent accrued on the
amount being prepaid) and at maturity (including final maturity).


 


D.  Conversion or
Continuation.  Subject to the provisions of subsection 2.6,
Company shall have the option (i) to convert at any time all or any part
of its outstanding Revolving Loans equal to $1,000,000 and multiples of
$100,000 in excess of that amount from Loans bearing interest at a rate
determined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis or (ii) upon the
expiration of any Interest


 


43





















 


Period applicable to a
Eurodollar Rate Loan, to continue all or any portion of such Loan equal to
$1,000,000 and multiples of $100,000 in excess of that amount as a Eurodollar
Rate Loan.


 


Company
shall deliver a duly executed Notice of Conversion/Continuation to
Administrative Agent no later than 12:00 Noon (New York City time) at least one
(1) Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to or a
continuation of a Eurodollar Rate Loan). 
In lieu of delivering a Notice of Conversion/Continuation, Company may
give Administrative Agent telephonic notice by the required time of any
proposed conversion/continuation under this subsection 2.2D; provided
that such notice shall be promptly confirmed in writing by delivery of a duly
executed Notice of Conversion/Continuation to Administrative Agent on or before
the proposed conversion/continuation date. 
Administrative Agent shall notify each Lender of any Loan subject to a
Notice of Conversion/Continuation.


 


E.  Default Rate.  Upon
the occurrence and during the continuation of any Event of Default under
subsections 8.1, 8.6 or 8.7, and during the continuance of any other Event of
Default at the election of Administrative Agent (which may be revoked at the
option of the Requisite Lenders notwithstanding any provision of subsection 10.6
that would require the consent of all Lenders thereto) or the Requisite
Lenders, the outstanding principal amount of all Loans and, to the extent
permitted by applicable law, any interest payments thereon not paid when due
and any fees and other amounts then due and payable hereunder, shall thereafter
bear interest (including post-petition interest in any proceeding under the
Bankruptcy Code or other applicable bankruptcy laws) payable upon demand by
Administrative Agent at a rate that is 2% per annum in excess of the interest
rate otherwise payable under this Agreement with respect to the applicable
Loans (or, in the case of any such fees and other amounts, at a rate which is
2% per annum in excess of the interest rate otherwise payable under this
Agreement for Base Rate Loans), provided that, in the case of Eurodollar
Rate Loans, upon the expiration of the Interest Period in effect at the time
any such increase in interest rate is effective such Eurodollar Rate Loans
shall thereupon become Base Rate Loans and shall thereafter bear interest
payable upon demand at a rate which is 2% per annum in excess of the interest
rate otherwise payable under this Agreement for Base Rate Loans.  Payment or acceptance of the increased rates
of interest provided for in this subsection 2.2E is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of
Administrative Agent or any Lender.


 


F.  Computation of
Interest.  Interest on the Loans shall be computed
(i) in the case of Base Rate Loans, on the basis of a 365-day or 366-day
year, as the case may be, and (ii) in the case of Eurodollar Rate Loans,
on the basis of a 360-day year, in each case for the actual number of days
elapsed in the period during which it accrues. 
In computing interest on any Loan, the date of the making of such Loan
or the first day of an Interest Period applicable to such Loan or, with respect
to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of
conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may
be, shall be included, and the date of payment of such Loan or the expiration
date of an Interest Period applicable to such Loan or, with respect to a Base
Rate Loan being converted to a Eurodollar Rate Loan, the date of conversion of
such Base Rate Loan to such Eurodollar Rate Loan, as the case


 


44





















 


may be, shall be excluded; provided
that if a Loan is repaid on the same day on which it is made, one day’s
interest shall be paid on that Loan.


 


G.  Maximum Rate.  Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges that are treated as interest under
applicable law (collectively, the “Charges”), as provided for herein or
in any other document executed in connection herewith, or otherwise contracted
for, charged, received, taken or reserved by any Lender or any Issuing Lender,
shall exceed the maximum lawful rate (the “Maximum Rate”) that may be
contracted for, charged, taken, received or reserved by such Lender in
accordance with applicable law, the rate of interest payable hereunder,
together with all Charges payable to such Lender or such Issuing Lender, shall
be limited to the Maximum Rate, provided that such excess amount shall
be paid to such Lender or such Issuing Lender on subsequent payment dates to
the extent not exceeding the Maximum Rate.


 


2.3                               Fees.


 


A.  Revolving Loan
Commitment Fees.  Company agrees to pay to Administrative
Agent, for distribution to each Revolving Lender in proportion to that Lender’s
Pro Rata Share, commitment fees for the period from and including the Closing
Date to and excluding the Revolving Loan Commitment Termination Date equal to
(i) the average of the daily excess of the Revolving Loan Commitment
Amount over the sum of (x) the aggregate principal amount of outstanding
Revolving Loans (but not any outstanding Swing Line Loans) plus
(y) the Letter of Credit Usage multiplied by (ii) a rate per
annum equal to the percentage set forth in the table below opposite the
Consolidated Leverage Ratio for the four Fiscal Quarter period for which the
applicable Compliance Certificate has been delivered pursuant to subsection 6.1(iv):


 




	
  Consolidated

  Leverage Ratio

  	
   

  	
  Commitment

  Fee Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.50:1.00 or
  greater:

  	
   

  	
  0.50%

  	
   

  
	
  less than
  2.50:1.00:

  	
   

  	
  0.375%

  	
   

  






 


such commitment fees to be
calculated on the basis of a 360-day year and the actual number of days elapsed
and to be payable quarterly in arrears on February 28, May 31, August 31
and November 30 of each year, commencing on the first such date to occur
after the Closing Date, and on the Revolving Loan Commitment Termination Date; provided
that for the first six months after the Closing Date, the applicable commitment
fee percentage shall be 0.50% per annum. 
Upon delivery of the Compliance Certificate by Company to Administrative
Agent pursuant to subsection 6.1(iv), the applicable commitment fee
percentage shall automatically be adjusted in accordance with such Compliance
Certificate, such adjustment to become effective on the next succeeding
Business Day following the receipt by Administrative Agent of such Compliance
Certificate; provided that, for the period commencing on the Business
Day following the date that is six months after the Closing Date, the
applicable commitment fee percentage shall be determined by reference to the
Compliance Certificate most recently received by Administrative Agent and provided
further that if at any time a Compliance Certificate is not delivered at
the time required pursuant to subsection 6.1(iv), from the time such
Compliance Certificate was


 


45





















 


required to be delivered
until delivery of such Compliance Certificate, the applicable commitment fee
percentage shall be the maximum percentage amount set forth above.


 


B.  Delayed Draw
Tranche B Term Loan Commitment Fees.  Company agrees to pay to Administrative
Agent, for distribution to each Lender having an unfunded Tranche B Term Loan
Commitment during the period from and including the Closing Date to and
excluding the Final Redemption Date, in proportion to that Lender’s Pro Rata
Share of such unfunded Tranche B Term Loan Commitment, commitment fees for such
period equal to the amount of the unfunded Tranche B Term Loan Commitments multiplied
by a rate per annum of 0.50%, such commitment fees to be calculated on the
basis of a 360-day year and the actual number of days elapsed and to be payable
on the Final Redemption Date.


 


C.  Other Fees. 
Company agrees to pay to Administrative Agent such fees in the amounts
and at the times separately agreed upon between Company and Administrative
Agent.


 


2.4                               Repayments, Prepayments and
Reductions of Revolving Loan Commitment Amount; General Provisions Regarding
Payments; Application of Proceeds of Collateral and Payments Under Subsidiary
Guaranty.


 


A.  Scheduled Payments
of Term Loans.


 


(i)            Scheduled Payments of Tranche B Term Loans. 
Company shall make principal payments on the Tranche B Term Loans in
installments on the dates and in the amounts set forth below:


 




	
  Date

  	
   

  	
  Scheduled Repayment

  	
   

  
	
  June 1,
  2005

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  September 1,
  2005

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  December 1,
  2005

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  March 1,
  2006

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  June 1,
  2006

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  September 1,
  2006

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  December 1,
  2006

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  March 1,
  2007

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  June 1,
  2007

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  September 1,
  2007

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  December 1,
  2007

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  March 1,
  2008

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  June 1,
  2008

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  September 1,
  2008

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  December 1,
  2008

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  March 1,
  2009

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  June 1,
  2009

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  September 1,
  2009

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  December 1,
  2009

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  March 1,
  2010

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  June 1,
  2010

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  September 1,
  2010

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  December 1,
  2010

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  March 1,
  2011

  	
   

  	
   

  	
  $

  	
  562,500

  	
   

  	
   

  
	
  June 1,
  2011

  	
   

  	
   

  	
  $

  	
  52,875,000

  	
   

  	
   

  
	
  September 1,
  2011

  	
   

  	
   

  	
  $

  	
  52,875,000

  	
   

  	
   

  
	
  December 1,
  2011

  	
   

  	
   

  	
  $

  	
  52,875,000

  	
   

  	
   

  
	
  March 1,
  2012

  	
   

  	
   

  	
  $

  	
  52,875,000

  	
   

  	
   

  
	
  Total:

  	
   

  	
   

  	
  $

  	
  225,000,000

  	
   

  	
   

  






 


46





















 


;
provided that the scheduled installments of principal of the Tranche B
Term Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche B Term Loans in accordance with subsection 2.4B(iv);
and provided, further that the Tranche B Term Loans and all other
amounts owed hereunder with respect to the Tranche B Term Loans shall be paid
in full no later than the Tranche B Term Loan Maturity Date, and the final
installment payable by Company in respect of the Tranche B Term Loans on such
date shall be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by Company under this Agreement
with respect to the Tranche B Term Loans; and provided, further
that in the event that the portion of the Tranche B Term Loans to be made on
the Final Redemption Date pursuant to subsection 2.1A(i) are not made, the
scheduled installments of principal of the Tranche B Term Loans set forth
above shall be reduced in a manner such that the aggregate principal amount of
the Tranche B Term Loans outstanding to Company shall amortize quarterly in an
aggregate annual amount equal to 1% of the original principal amount of the
Tranche B Term Loans during the period from the Closing Date until the sixth anniversary
of the Closing Date with the balance payable in equal quarterly installments
during the period from the sixth anniversary of the Closing Date until the
Tranche B Term Loan Maturity Date.


 


(ii)           In the event that any Incremental Term Loans are made on an Increased
Amount Date, Company shall repay such Incremental Term Loans on the dates and
in the amounts set forth in the Incremental Assumption Agreement.


 


B.  Prepayments and
Reductions in Revolving Loan Commitment Amount.


 


(i)            Voluntary Prepayments.  Company may, upon written or telephonic notice
to Administrative Agent on or prior to 12:00 Noon (New York City time) on the
date of prepayment, which notice, if telephonic, shall be promptly confirmed in
writing, at any time and from time to time prepay any Swing Line Loan on any
Business Day in whole or in part in an aggregate minimum amount of $1,000,000
and multiples of $1,000,000 in excess of that amount.  Company may, upon not less than one Business
Day’s prior written or telephonic notice, in the case of Base Rate Loans, and
three Business Days’ prior written or telephonic notice in the case of
Eurodollar Rate Loans and in each case given to Administrative Agent by 12:00
Noon (New York City time) on the date required


 


47





















 


and,
if given by telephone, promptly confirmed in writing to Administrative Agent,
who will promptly notify each Lender whose Loans are to be prepaid of such
prepayment, at any time and from time to time prepay any Term Loans or Revolving
Loans on any Business Day in whole or in part in an aggregate minimum amount of
$1,000,000 and multiples of $1,000,000 in excess of that amount.  Notice of prepayment having been given as
aforesaid, the principal amount of the Loans specified in such notice shall
become due and payable on the prepayment date specified therein.  Any such voluntary prepayment shall be
applied as specified in subsection 2.4B(iv).


 


(ii)           Voluntary Reductions of Revolving Loan
Commitments.  Company may, upon not less than three
Business Days’ prior written or telephonic notice confirmed in writing to
Administrative Agent, or upon such lesser number of days’ prior written or
telephonic notice, as determined by Administrative Agent in its sole
discretion, at any time and from time to time, terminate in whole or
permanently reduce in part, without premium or penalty, the Revolving Loan
Commitment Amount in an amount up to the amount by which the Revolving Loan
Commitment Amount exceeds the Total Utilization of Revolving Loan Commitments
at the time of such proposed termination or reduction; provided that any
such partial reduction of the Revolving Loan Commitment Amount, unless the
Revolving Loan Commitment is reduced to equal the Total Utilization of
Revolving Loan Commitments, shall be in an aggregate minimum amount of
$1,000,000 and multiples of $1,000,000 in excess of that amount.  Company’s notice to Administrative Agent (who
will promptly notify each Revolving Lender of such notice) shall designate the
date (which shall be a Business Day) of such termination or reduction and the
amount of any partial reduction, and such termination or reduction shall be
effective on the date specified in Company’s notice and shall reduce the amount
of the Revolving Loan Commitment of each Revolving Lender proportionately to
its Pro Rata Share.  Any such voluntary
reduction of the Revolving Loan Commitment Amount shall be applied as specified
in subsection 2.4B(iv).


 


(iii)          Mandatory Prepayments and Mandatory
Reductions of Revolving Loan Commitments.  The Loans shall be prepaid
and/or the Revolving Loan Commitment Amount shall be permanently reduced in the
amounts and under the circumstances set forth below, all such prepayments
and/or reductions to be applied as set forth below or as more specifically
provided in subsection 2.4B(iv) and subsection 2.4D:


 


(a)           Prepayments and Reductions From Net Asset
Sale Proceeds.


 


(1)           No later than the third Business Day following the date of receipt by
Company or any of its Subsidiaries of any Net Asset Sale Proceeds in respect of
any Asset Sale (other than any Asset Sale identified on Schedule 7.7),
Company shall either (A) prepay the Loans and/or the Revolving Loan Commitment
Amount shall be permanently reduced in an aggregate amount equal to such Net
Asset Sale Proceeds or (B), so long as no Potential Event of Default or Event
of Default shall have occurred and be continuing and to the extent that
aggregate Net Asset Sale Proceeds from the Closing Date through the date of
determination do not exceed


 


48





















 


$30,000,000,
deliver to Administrative Agent an Officer’s Certificate setting forth (x) that
portion of such Net Asset Sale Proceeds that Company or such Subsidiary intends
to reinvest in equipment or other productive assets of the general type used in
the business of Company and its Subsidiaries within 365 days of such date of
receipt and (y) the proposed use of such portion of the Net Asset Sale
Proceeds; provided, however, that, pending such reinvestment,
such portion of the Net Asset Sale Proceeds not so used shall be applied to
prepay outstanding Revolving Loans (without a reduction in the Revolving Loan
Commitment Amount) to the full extent thereof (it being understood that no
Letter of Credit shall be cash collateralized). 
In addition, Company shall, no later than 365 days after receipt of such
Net Asset Sale Proceeds that have not theretofore been applied to the
Obligations or that have not been so reinvested as provided above, make an
additional prepayment of the Loans (and/or the Revolving Loan Commitment Amount
shall be permanently reduced) in the full amount of all such remaining Net
Asset Sale Proceeds.


 


(2)           In respect of any Net Asset Sale Proceeds received in respect of any
Asset Sale identified on Schedule 7.7, Company shall reinvest such Net
Asset Sale Proceeds in equipment or other productive assets of the general type
used in the business of Company and its Subsidiaries within 365 days of such
date of receipt; provided, however, that, pending such reinvestment,
such portion of the Net Asset Sale Proceeds shall be applied to prepay
outstanding Revolving Loans (without a reduction in the Revolving Loan
Commitment Amount) to the full extent thereof (it being understood that no
Letter of Credit shall be cash collateralized). 
In addition, Company shall, no later than 365 days after receipt of such
Net Asset Sale Proceeds that have not theretofore been applied to the
Obligations or that have not been so reinvested as provided above, make an
additional prepayment of the Loans (and/or the Revolving Loan Commitment Amount
shall be permanently reduced) in the full amount of all such remaining Net
Asset Sale Proceeds.


 


(b)           Prepayments and Reductions from Net
Insurance/Condemnation Proceeds.  No later than the third Business Day
following the date of receipt by Administrative Agent or by Company or any
Subsidiary Guarantor of any Net Insurance/Condemnation Proceeds that are
required to be applied to prepay the Loans and/or reduce the Revolving Loan
Commitment Amount pursuant to the provisions of subsection 6.4C(iii),
Company shall prepay the Loans and/or the Revolving Loan Commitment Amount
shall be permanently reduced in an aggregate amount equal to the amount of such
Net Insurance/Condemnation Proceeds.


 


(c)           Prepayments and Reductions Due to Issuance of
Equity Securities.  No later than the first Business Day
following the date of receipt by Company or any of its Subsidiaries of the Net
Securities Proceeds from the issuance of any


 


49





















 


Capital
Stock of Company or of any Subsidiary of Company or from any capital
contributions by a holder of Capital Stock of Company after the Closing Date,
Company shall prepay the Loans and/or the Revolving Loan Commitment Amount
shall be permanently reduced in an aggregate amount equal to 50% of such Net
Securities Proceeds.


 


(d)           Prepayments and Reductions Due to Issuance of
Indebtedness.  No later than the first Business Day
following the date of receipt by Company or any of its Subsidiaries of the Net
Securities Proceeds from the issuance of any Indebtedness of Company or any of
its Subsidiaries after the Closing Date, other than Indebtedness permitted
pursuant to subsection 7.1, Company shall prepay the Loans and/or the
Revolving Loan Commitment Amount shall be permanently reduced in an aggregate
amount equal to such Net Securities Proceeds.


 


(e)           Prepayments and Reductions from Consolidated
Excess Cash Flow.  In the event that there shall be Consolidated
Excess Cash Flow for any Fiscal Year (commencing with Fiscal Year 2005),
Company shall, no later than 90 days after the end of such Fiscal Year, prepay
the Loans and/or the Revolving Loan Commitment Amount shall be permanently
reduced in an aggregate amount equal to 50% of such Consolidated Excess Cash
Flow; provided, that in respect of Fiscal Year 2005, Consolidated Excess
Cash Flow shall be deemed to be Consolidated Excess Cash Flow multiplied
by 0.83; and provided  further, that if the Consolidated Leverage
Ratio as of the end of such Fiscal Year (determined for any such period by
reference to the Compliance Certificate delivered in connection with the
delivery of financial statements referred to in subsection 6.1(iii) for
such Fiscal Year) was less than 2.00 to 1.00, no prepayment or reduction shall
be required.


 


(f)            Calculations of Net Proceeds Amounts;
Additional Prepayments and Reductions Based on Subsequent Calculations. 
Concurrently with any prepayment of the Loans and/or reduction of the
Revolving Loan Commitment Amount pursuant to subsections 2.4B(iii)(a)-(e),
Company shall deliver to Administrative Agent an Officer’s Certificate
demonstrating the calculation of the amount of the applicable Net Asset Sale
Proceeds, Net Insurance/Condemnation Proceeds, Net Securities Proceeds, or Consolidated
Excess Cash Flow, as the case may be, that gave rise to such prepayment and/or
reduction.  In the event that Company
shall subsequently determine that the actual amount received was greater than
the amount set forth in such Officer’s Certificate, Company shall promptly make
an additional prepayment of the Loans (and/or, if applicable, the Revolving
Loan Commitment Amount shall be permanently reduced) in an amount equal to the
amount of such excess, and Company shall concurrently therewith deliver to
Administrative Agent an Officer’s Certificate demonstrating the derivation of
the additional amount resulting in such excess.


 


(g)           Prepayments Due to Reductions or Restrictions
of Revolving Loan Commitment Amount.  Company shall from time to
time prepay first the Swing


 


50





















 


Line
Loans and second the Revolving Loans (and, after prepaying all Revolving
Loans, Cash collateralize any outstanding Letters of Credit by depositing the
requisite amount in the Collateral Account) to the extent necessary so that the
Total Utilization of Revolving Loan Commitments shall not at any time exceed
the Revolving Loan Commitment Amount then in effect.  At such time as the Total Utilization of
Revolving Loan Commitments shall be equal to or less than the Revolving Loan
Commitment Amount, if no Event of Default has occurred and is continuing, to
the extent any Cash collateral was provided by Company and has not been applied
to any Obligations as provided in the Security Agreement, such amount shall, at
the request of Company, be released to Company.


 


(iv)          Application of Prepayments and Unscheduled
Reductions of Revolving Loan Commitment Amount.


 


(a)           Application of Voluntary Prepayments by Type
of Loans and Order of Maturity.  Any voluntary prepayments pursuant to subsection 2.4B(i)
shall be applied as specified by Company in the applicable notice of
prepayment; provided that in the event Company fails to specify the
Loans to which any such prepayment shall be applied, such prepayment shall be
applied first to repay outstanding Swing Line Loans to the full extent
thereof (without a corresponding reduction of the Revolving Loan Commitment
Amount), second to repay outstanding Revolving Loans to the full extent
thereof (without a corresponding reduction of the Revolving Loan Commitment
Amount or the Cash Collateralization of any Letter of Credit), and third
to repay outstanding Term Loans to the full extent thereof.  Any voluntary prepayments of the Term Loans
pursuant to subsection 2.4B(i) shall be applied to prepay the Tranche B
Term Loans to reduce scheduled installments of principal of the Tranche B Term
Loans set forth in subsection 2.4A(i) for the next succeeding four Fiscal
Quarters in direct order of maturity and thereafter to reduce each of the
remaining scheduled installments of principal of the Tranche B Term Loans set
forth in subsection 2.4A(i) on a pro rata basis.


 


(b)           Application of Mandatory Prepayments by Type
of Loans.  Except as provided in subsection 2.4D,
any amount required to be applied as a mandatory prepayment of the Loans and/or
a reduction of the Revolving Loan Commitment Amount pursuant to subsections
2.4B(iii)(a)-(f) shall be applied first to prepay the Term Loans to the
full extent thereof, second, to the extent of any remaining portion of
such amount, to prepay the Swing Line Loans to the full extent thereof and to
permanently reduce the Revolving Loan Commitment Amount by the amount of such
prepayment, third, to the extent of any remaining portion of such amount,
to prepay the Revolving Loans to the full extent thereof (and, after prepaying
all Revolving Loans, Cash collateralize any outstanding Letters of Credit by
depositing the requisite amount in the Collateral Account) and to further
permanently reduce the Revolving Loan Commitment Amount by the amount of such
prepayment, and fourth, to the extent of any remaining portion of such
amount, to further permanently reduce the Revolving Loan Commitment Amount


 


51





















 


to
the full extent thereof.  Any mandatory
reduction of the Revolving Loan Commitment Amount pursuant to this subsection 2.4B
shall be in proportion to each Revolving Lender’s Pro Rata Share.


 


(c)           Application of Mandatory Prepayments of Term
Loans to Tranche B Term Loans and the Scheduled Installments of Principal
Thereof.  Except as provided in subsection 2.4D,
any mandatory prepayments of the Term Loans pursuant to subsection 2.4B(iii)
shall be applied to prepay the Tranche B Term Loans and shall be applied on a
pro rata basis to each scheduled installment of principal of the Tranche B Term
Loans set forth in subsection 2.4A(i) that is unpaid at the time of such
prepayment.


 


(d)           Application of Prepayments to Base Rate Loans
and Eurodollar Rate Loans.  Considering Tranche B Term Loans and
Revolving Loans being prepaid separately, any prepayment thereof shall be
applied first to Base Rate Loans to the full extent thereof before application
to Eurodollar Rate Loans, in each case in a manner that minimizes the amount of
any payments required to be made by Company pursuant to subsection 2.6D; provided,
however, that Company may elect that the remainder of such prepayments
not applied to prepay Base Rate Loans be deposited in the Collateral Account
and applied thereafter to prepay the Eurodollar Rate Loan or Loans with
Interest Periods expiring on a date or dates nearest the date of deposit in
accordance with this subsection 2.4B(iv), upon expiration of such Interest
Periods.


 


C.  General Provisions
Regarding Payments.


 


(i)            Manner and Time of Payment.  All
payments by Company of principal, interest, fees and other Obligations shall be
made in Dollars in same day funds, without defense, setoff or counterclaim,
free of any restriction or condition, and delivered to Administrative Agent not
later than 12:00 Noon (New York City time) on the date due at the Funding and
Payment Office for the account of Lenders; funds received by Administrative
Agent after that time on such due date shall be deemed to have been paid by Company
on the next succeeding Business Day. 
Company hereby authorizes Administrative Agent to charge its accounts
with Administrative Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest, fees and expenses due hereunder
(subject to sufficient funds being available in its accounts for that purpose).


 


(ii)           Application of Payments to Principal and
Interest.  All payments in respect of the principal
amount of any Loan shall include payment of accrued interest on the principal
amount being repaid or prepaid, and all such payments shall be applied to the
payment of interest before application to principal.


 


(iii)          Apportionment of Payments. 
Aggregate payments of principal and interest shall be apportioned among
all outstanding Loans to which such payments relate, in each case
proportionately to Lenders’ respective Pro Rata Shares.  Administrative


 


52





















 


Agent
shall promptly distribute to each Lender, at the account specified in the
payment instructions delivered to Administrative Agent by such Lender, its Pro
Rata Share of all such payments received by Administrative Agent and the
commitment fees and letter of credit fees of such Lender, if any, when received
by Administrative Agent pursuant to subsections 2.3 and 3.2.  Notwithstanding the foregoing provisions of
this subsection 2.4C(iii), if, pursuant to the provisions of subsection 2.6C,
any Notice of Conversion/Continuation is withdrawn as to any Affected Lender or
if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of
any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning interest payments received thereafter.


 


(iv)          Payments on Business Days. 
Whenever any payment to be made hereunder shall be stated to be due on a
day that is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or of the commitment fees
hereunder, as the case may be.


 


(v)           Notation of Payment.  Each
Lender agrees that before disposing of any Note held by it, or any part thereof
(other than by granting participations therein), that Lender will make a
notation thereon of all Loans evidenced by that Note and all principal payments
previously made thereon and of the date to which interest thereon has been
paid; provided that the failure to make (or any error in the making of)
a notation of any Loan made under such Note shall not limit or otherwise affect
the obligations of Company hereunder or under such Note with respect to any
Loan or any payments of principal or interest on such Note.


 


D.  Application of
Proceeds of Collateral and Payments after Event of Default.  Upon
the occurrence and during the continuation of an Event of Default, if requested
by Requisite Lenders, or upon acceleration of the Obligations pursuant to Section 8,
(a) all payments received by Administrative Agent, whether from Company, any
Subsidiary Guarantor or otherwise, and (b) all proceeds received by
Administrative Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral under any Collateral
Document may, in the discretion of Administrative Agent, be held by
Administrative Agent as Collateral for, and/or (then or at any time thereafter)
applied in full or in part by Administrative Agent and, if applied by
Administrative Agent, shall be applied, in each case, in the following order of
priority:


 


(i)            to the payment of all costs and expenses of
such sale, collection or other realization, all other expenses, liabilities and
advances made or incurred by Administrative Agent in connection therewith, and
all amounts for which Administrative Agent is entitled to compensation
(including the fees described in subsection 2.3), reimbursement and
indemnification under any Loan Document and all advances made by Administrative
Agent thereunder for the account of the applicable Loan Party, and to the
payment of all costs and expenses paid or incurred by Administrative Agent in
connection with the Loan Documents, all in accordance with subsections 9.4,
10.2 and 10.3 and the other terms of this Agreement and the Loan Documents;


 


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(ii)           thereafter, to the payment of all other Obligations and obligations of
Loan Parties under any Hedge Agreement between a Loan Party and a Swap
Counterparty for the ratable benefit of the holders thereof (subject to the
provisions of subsection 2.4C(ii) hereof); and


 


(iii)          thereafter, to the payment to or upon the order of such Loan Party or
to whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.


 


2.5                               Use of Proceeds.


 


A.  Term Loans.


 


(i)            The proceeds of the Tranche B Term Loans
incurred on the Closing Date shall be applied by Company to fund (a) the
Existing Senior Secured Notes Repurchase to the extent of the Existing Senior
Secured Notes tendered as of the Closing Date and (b) the payment of fees and
expenses payable on the Closing Date in connection therewith.


 


(ii)           The proceeds of the Tranche B Term Loans incurred on the Final
Redemption Date shall be applied by Company on the Final Redemption Date to
fund (a) the repurchase or defeasance of all or substantially all of the
Existing Senior Secured Notes not previously repurchased, (b) the redemption of
all of the Existing Senior Subordinated Notes not previously redeemed, (c) the
redemption of all of the Existing Convertible Subordinated Debentures and (d)
the payment of fees and expenses related to each of the matters described in
clauses (a), (b) and (c).


 


B.  Revolving Loans;
Swing Line Loans.  Up to $30,000,000 of proceeds of Revolving
Loans may be applied for the purposes described in subsection 2.5A(ii).  Notwithstanding the foregoing, the proceeds
of any other Revolving Loans and any Swing Line Loans made on or after the
Closing Date shall be applied by Company for working capital and other general
corporate purposes.


 


C.  Margin Regulations.  No
portion of the proceeds of any borrowing under this Agreement shall be used by
Company or any of its Subsidiaries in any manner that might cause the borrowing
or the application of such proceeds to violate Regulation U, Regulation T or
Regulation X of the Board of Governors of the Federal Reserve System or
any other regulation of such Board or to violate the Exchange Act, in each case
as in effect on the date or dates of such borrowing and such use of proceeds.


 


2.6                               Special Provisions Governing
Eurodollar Rate Loans.


 


Notwithstanding
any other provision of this Agreement to the contrary, the following provisions
shall govern with respect to Eurodollar Rate Loans as to the matters covered:


 


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A.  Determination of
Applicable Interest Rate.  On each Interest Rate
Determination Date, Administrative Agent shall determine in accordance with the
terms of this Agreement (which determination shall, absent manifest error, be
conclusive and binding upon all parties) the interest rate that shall apply to
the Eurodollar Rate Loans for which an interest rate is then being determined
for the applicable Interest Period and shall promptly give notice thereof (in
writing or by telephone confirmed in writing) to Company and each applicable
Lender.


 


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


 


C.  Illegality or
Impracticability of Eurodollar Rate Loans.  In
the event that on any date any Lender shall have determined (which
determination shall be conclusive and binding upon all parties hereto but shall
be made only after consultation with Company and Administrative Agent) that the
making, maintaining or continuation of its Eurodollar Rate Loans (i) has
become unlawful as a result of compliance by such Lender in good faith with any
law, treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not
be unlawful) or (ii) has become impracticable, or would cause such Lender
material hardship, as a result of contingencies occurring after the date of
this Agreement which materially and adversely affect the interbank Eurodollar
market or the position of such Lender in that market, then, and in any such
event, such Lender shall be an “Affected
Lender” and it shall on that day give notice (by telefacsimile or by
telephone confirmed in writing) to Company and Administrative Agent of such
determination.  Administrative Agent
shall promptly notify each other Lender of the receipt of such notice.  Thereafter (a) the obligation of the
Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate Loans
shall be suspended until such notice shall be withdrawn by the Affected Lender,
(b) to the extent such determination by the Affected Lender relates to a
Eurodollar Rate Loan then being requested by Company pursuant to a Notice of
Borrowing or a Notice of Conversion/Continuation, the Affected Lender shall
make such Loan as (or convert such Loan to, as the case may be) a Base Rate
Loan, (c) the Affected Lender’s obligation to maintain its outstanding
Eurodollar Rate Loans (the “Affected Loans”)
shall be terminated at the earlier to occur of the expiration of the Interest
Period then in effect with respect to the Affected Loans or when required by
law, and (d) the Affected Loans shall automatically convert into Base Rate
Loans on the date of such termination.


 


55





















 


Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by Company
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation,
Company shall have the option, subject to the provisions of subsection 2.6D,
to rescind such Notice of Borrowing or Notice of Conversion/Continuation as to
all Lenders by giving notice (by telefacsimile or by telephone confirmed in
writing) to Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described above.  Administrative Agent shall promptly notify
each other Lender of the receipt of such notice.  Except as provided in the immediately
preceding sentence, nothing in this subsection 2.6C shall affect the
obligation of any Lender other than an Affected Lender to make or maintain
Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance with the
terms of this Agreement.


 


D.  Compensation For
Breakage or Non-Commencement of Interest Periods. 
Company shall compensate each Lender, upon written request by that
Lender pursuant to subsection 2.8, for all reasonable losses, expenses and
liabilities (including any interest paid by that Lender to lenders of funds
borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense
or liability sustained by that Lender in connection with the liquidation or
re-employment of such funds) which that Lender may sustain: (i) if for any
reason (other than a default by that Lender) a borrowing of any Eurodollar Rate
Loan does not occur on a date specified therefor in a Notice of Borrowing or a
telephonic request therefor, or a conversion to or continuation of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request therefor, (ii) if any
prepayment or other principal payment or any conversion of any of its
Eurodollar Rate Loans (including any prepayment or conversion occasioned by the
circumstances described in subsection 2.6C) occurs on a date prior to the
last day of an Interest Period applicable to that Loan, (iii) if any
prepayment of any of its Eurodollar Rate Loans is not made on any date
specified in a notice of prepayment given by Company, or (iv) as a
consequence of any other default by Company in the repayment of its Eurodollar
Rate Loans when required by the terms of this Agreement.


 


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


 


F.  Assumptions
Concerning Funding of Eurodollar Rate Loans. 
Calculation of all amounts payable to a Lender under this subsection 2.6
and under subsection 2.7A shall be made as though that Lender had funded
each of its Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate
Loan and having a maturity comparable to the relevant Interest Period, whether
or not its Eurodollar Rate Loans had been funded in such manner.


 


G.  Eurodollar Rate
Loans After Default.  After the occurrence of and during the
continuation of an Event of Default, (i) Company may not elect to have a
Loan be made or maintained as, or converted to, a Eurodollar Rate Loan after
the expiration of any Interest Period then in effect for that Loan and
(ii) subject to the provisions of subsection 2.6D, any Notice of
Borrowing or Notice of Conversion/Continuation given by Company with respect to
a requested


 


56





















 


borrowing or
conversion/continuation that has not yet occurred shall be deemed to be for a
Base Rate Loan or, if the conditions to making a Loan set forth in subsection 4.3
cannot then be satisfied, to be rescinded by Company.


 


2.7                               Increased Costs; Taxes;
Capital Adequacy.


 


A.  Compensation for
Increased Costs.  Subject to the provisions of subsection 2.7B
(which shall be controlling with respect to the matters covered thereby), in
the event that any Lender (including any Issuing Lender) shall determine in
good faith (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any Change in Law:


 


(i)            subjects such Lender to any additional tax of
any kind whatsoever with respect to this Agreement or any of its obligations
hereunder (including with respect to issuing or maintaining any Letters of
Credit or purchasing or maintaining any participations therein or maintaining
any Commitment hereunder) or any payments to such Lender of principal,
interest, fees or any other amount payable hereunder (except for the imposition
of, or any change in the rate of, any Excluded Tax payable by such Lender);


 


(ii)           imposes, modifies or holds applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, or advances or
loans by, or other credit extended by, or any other acquisition of funds by,
any office of such Lender (other than any such reserve or other requirements
with respect to Eurodollar Rate Loans that are reflected in the definition of
Eurodollar Rate); or


 


(iii)          imposes any other condition (other than with respect to Taxes) on or
affecting such Lender or its obligations hereunder or the interbank Eurodollar
market;


 


and the result of any of the
foregoing is to increase the cost to such Lender of agreeing to make, making or
maintaining its Loans or Commitments or agreeing to issue, issuing or
maintaining any Letter of Credit or agreeing to purchase, purchasing or
maintaining any participation therein or to reduce any amount received or
receivable by such Lender with respect thereto; then, in any such case, Company
shall promptly pay to such Lender, upon receipt of the statement referred to in
subsection 2.8A, such additional amount or amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as may be necessary to
compensate such Lender on an after-tax basis for any such increased cost or
reduction in amounts received or receivable hereunder.  Company shall not be required to compensate a
Lender pursuant to this subsection 2.7A for any increased cost or
reduction in respect of a period occurring more than nine months prior to the
date on which such Lender notifies Company of such Change in Law and such
Lender’s intention to claim compensation therefor, except, if the Change in Law
giving rise to such increased cost or reduction is retroactive, no such time
limitation shall apply so long as such Lender requests compensation within nine
months from the date on which the applicable Government Authority informed such
Lender of such Change in Law.


 


57





















 


B.  Taxes.


 


(i)            Payments to Be Free and Clear.  Any
and all payments by or on account of any obligation of Company under this
Agreement and the other Loan Documents shall be made free and clear of, and
without any deduction or withholding on account of, any Indemnified Taxes or
Other Taxes (other than any Other Taxes imposed as a result of a transfer by a
Lender of or a sale by a Lender of a participation in any of its interest in a
Loan).


 


(ii)           Grossing-up of Payments.  If
Company or any other Person is required by law to make any deduction or
withholding on account of any Tax from any sum paid or payable by Company to
Administrative Agent or any Lender under any of the Loan Documents:


 


(a)           Company shall notify Administrative Agent of any such requirement or
any change in any such requirement as soon as Company becomes aware of it;


 


(b)           Company shall timely pay any such Tax to the relevant Government
Authority when such Tax is due, in accordance with applicable law;


 


(c)           unless such Tax is an Excluded Tax, the sum payable by Company shall be
increased to the extent necessary to ensure that, after making the required
deductions (including deductions applicable to additional sums payable under
this subsection 2.7B(ii)), Administrative Agent or such Lender, as the
case may be, receives on the due date a net sum equal to the sum it would have
received had no such deduction been required or made; and


 


(d)           within 30 days after paying any sum from which it is required by law to
make any such deduction, and within 30 days after the due date of payment of
any Tax which it is required by clause (b) above to pay, Company shall deliver
to Administrative Agent the original or a certified copy of an official receipt
or other document satisfactory to the other affected parties to evidence the
payment and its remittance to the relevant Government Authority.


 


(iii)          Indemnification by Company. 
Company shall indemnify Administrative Agent and each Lender, within 10
days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (other than any Other Taxes imposed as a result of a transfer by a
Lender of or a sale by a Lender of a participation in any of its interest in a
Loan, but including for the full amount of any Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this subsection 2.7B(iii))
paid by Administrative Agent or such Lender, 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 Government Authority.  A certificate as to the amount of such
payment or liability and the basis for and calculation thereof delivered to
Company by a Lender (with


 


58





















 


a
copy to Administrative Agent), or by Administrative Agent on its own behalf or
on behalf of a Lender, shall be conclusive absent manifest error.


 


(iv)          Tax Status of Lenders. 
Unless not legally entitled to do so:


 


(a)           any Lender shall deliver such forms or other documentation prescribed
by applicable law or reasonably requested by Company or Administrative Agent as
will enable Company or Administrative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting requirements;


 


(b)           any Foreign Lender that is entitled to an exemption from or reduction
of any Tax with respect to payments hereunder or under any other Loan Document
shall deliver to Company and 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, as may be necessary in the determination of Company or
Administrative Agent, each in the reasonable exercise of its discretion), such
properly completed and duly executed forms or other documentation prescribed by
applicable law as will permit such payments to be made without withholding or
at a reduced rate of withholding;


 


(c)           without limiting the generality of the foregoing, in the event that
Company is resident for tax purposes in the United States, any Foreign Lender
shall deliver to Company and Administrative Agent (in such number of copies as
shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter, as may be necessary in the determination of Company or
Administrative Agent, each in the reasonable exercise of its discretion),
whichever of the following is applicable:


 


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


 


(2)           properly completed and duly executed copies of Internal Revenue Service
Form W-8ECI,


 


(3)           in the case of a Foreign Lender claiming the benefits of the “portfolio
interest” exemption under Section 881(c) of the Internal Revenue Code, (A)
a duly executed certificate to the effect that such Foreign Lender is not
(i) a “bank” within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, (ii) a ten-percent shareholder (within the meaning of Section 881(c)(3)(B)
of the Internal Revenue Code) of Company or (iii) a controlled foreign
corporation described in Section 881(c)(3)(C) of the Internal Revenue Code
and (B) properly


 


59





















 


completed
and duly executed copies of Internal Revenue Service Form W-8BEN,


 


(4)           properly completed and duly executed copies of any other form
prescribed by applicable law as a basis for claiming exemption from or a
reduction in any Tax,


 


in
each case together with such supplementary documentation as may be prescribed
by applicable law to permit Company and Administrative Agent to determine the
withholding or deduction required to be made, if any;


 


(d)           without limiting the generality of the foregoing, in the event that
Company is resident for tax purposes in the United States, any Foreign Lender
that does not act or ceases to act for its own account with respect to any
portion of any sums paid or payable to such Lender under any of the Loan
Documents (for example, in the case of a typical participation by such Lender)
shall deliver to Administrative Agent and Company (in such number of copies as
shall be requested by the recipient), on or prior to the date such Foreign
Lender becomes a Lender, or on such later date when such Foreign Lender ceases
to act for its own account with respect to any portion of any such sums paid or
payable, and from time to time thereafter, as may be necessary in the
determination of Company or Administrative Agent (each in the reasonable
exercise of its discretion):


 


(1)           duly executed and properly completed copies of the forms and statements
required to be provided by such Foreign Lender under clause (c) of subsection 2.7B(iv),
to establish the portion of any such sums paid or payable with respect to which
such Lender acts for its own account and may be entitled to an exemption from
or a reduction of the applicable Tax; and


 


(2)           duly executed and properly completed copies of Internal Revenue Service
Form W-8IMY (or any successor forms) properly completed and duly executed
by such Foreign Lender, together with any information, if any, such Foreign
Lender chooses to transmit with such form, and any other certificate or
statement of exemption required under the Internal Revenue Code or the
regulations thereunder, to establish that such Foreign Lender is not acting for
its own account with respect to a portion of any such sums payable to such
Foreign Lender;


 


(e)           without limiting the generality of the foregoing, in the event that
Company is resident for tax purposes in the United States, any Lender that is
not a Foreign Lender and has not otherwise established to the reasonable
satisfaction of Company and Administrative Agent that it is an exempt recipient
(as defined in section 6049(b)(4) of the Internal Revenue Code and the
United States Treasury Regulations thereunder) shall deliver to Company and
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the


 


60





















 


date
on which such Lender becomes a Lender under this Agreement (and from time to
time thereafter as prescribed by applicable law or upon the request of Company
or Administrative Agent), duly executed and properly completed copies of
Internal Revenue Service Form W-9; and


 


(f)            without limiting the generality of the
foregoing, each Lender hereby agrees, from time to time after the initial
delivery by such Lender of such forms, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence so delivered
obsolete or inaccurate in any material respect, that such Lender shall promptly
(1) deliver to Administrative Agent and Company two original copies of
renewals, amendments or additional or successor forms, properly completed and
duly executed by such Lender, together with any other certificate or statement
of exemption required in order to confirm or establish that such Lender is
entitled to an exemption from or reduction of any Tax with respect to payments
to such Lender under the Loan Documents and, if applicable, that such Lender
does not act for its own account with respect to any portion of such payment,
or (2) notify Administrative Agent and Company of its inability to deliver
any such forms, certificates or other evidence.


 


C.  Capital Adequacy
Adjustment.  If any Lender shall have determined that any
Change in Law regarding capital adequacy has or would have the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of, or with reference to, such Lender’s
Loans or Commitments or Letters of Credit or participations therein or other
obligations hereunder with respect to the Loans or the Letters of Credit to a
level below that which such Lender or such controlling corporation could have
achieved but for such Change in Law (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by Company from
such Lender of the statement referred to in subsection 2.8A, Company shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such controlling corporation on an after-tax basis for such
reduction.  Company shall not be required
to compensate a Lender pursuant to this subsection 2.7C for any reduction
in respect of a period occurring more than nine months prior to the date on
which such Lender notifies Company of such Change in Law and such Lender’s
intention to claim compensation therefor, except, if the Change in Law giving
rise to such reduction is retroactive, no such time limitation shall apply so
long as such Lender requests compensation within nine months from the date on
which the applicable Government Authority informed such Lender of such Change
in Law.


 


2.8                               Statement of Lenders;
Obligation of Lenders and Issuing Lenders to Mitigate.


 


A.  Statements.  Each
Lender claiming compensation or reimbursement pursuant to subsection 2.6D,
2.7 or 2.8B shall deliver to Company (with a copy to Administrative Agent) a
written statement, setting forth in reasonable detail the basis of the
calculation of such compensation or reimbursement, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.


 


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B.  Mitigation.  Each
Lender and Issuing Lender agrees that, as promptly as practicable after the
officer of such Lender or Issuing Lender responsible for administering the
Loans or Letters of Credit of such Lender or Issuing Lender, as the case may
be, becomes aware of the occurrence of an event or the existence of a condition
that would cause such Lender to become an Affected Lender or that would entitle
such Lender or Issuing Lender to receive payments under subsection 2.7, it
will use reasonable efforts to make, issue, fund or maintain the Commitments of
such Lender or the Loans or Letters of Credit of such Lender or Issuing Lender
through another lending or letter of credit office of such Lender or Issuing
Lender, if (i) as a result thereof the circumstances which would cause such
Lender to be an Affected Lender would cease to exist or the additional amounts
which would otherwise be required to be paid to such Lender or Issuing Lender
pursuant to subsection 2.7 would be materially reduced and (ii) as
determined by such Lender or Issuing Lender in its sole discretion, such action
would not otherwise be disadvantageous to such Lender or Issuing Lender; provided
that such Lender or Issuing Lender will not be obligated to utilize such other
lending or letter of credit office pursuant to this subsection 2.8B unless
Company agrees to pay all incremental expenses incurred by such Lender or
Issuing Lender as a result of utilizing such other lending or letter of credit
office as described above. 
Notwithstanding anything to the contrary contained in this Agreement, no
Lender shall be entitled to receive any amount under subsection 2.6C or section 2.7
as a result of a change in any lending office which is greater than such Lender
would have been entitled to receive immediately prior to such change in lending
office, unless the transfer occurred at a time when circumstances giving rise
to the claim for such amount did not exist.


 


2.9                               Replacement of a Lender.


 


If
Company receives a statement of amounts due pursuant to subsection 2.8A
from a Lender, a Revolving Lender defaults in its obligations to fund a
Revolving Loan pursuant to this Agreement, a Lender (a “Non-Consenting Lender”) refuses to consent
to an amendment, modification or waiver of this Agreement that, (1) pursuant to
subsection 10.6, requires consent of 100% of the Lenders or 100% of the
Lenders with Obligations directly affected and (2) Requisite Lenders have
otherwise consented to, or a Lender becomes an Affected Lender (any such
Lender, a “Subject Lender”), so
long as (i) no Potential Event of Default or Event of Default shall have
occurred and be continuing and Company has obtained a commitment from another
Lender or an Eligible Assignee to purchase at par the Subject Lender’s Loans
and assume the Subject Lender’s Commitments and all other obligations of the
Subject Lender hereunder, (ii) such Lender is not an Issuing Lender with
respect to any Letters of Credit outstanding (unless all such Letters of Credit
are terminated or arrangements acceptable to such Issuing Lender (such as a “back-to-back”
letter of credit) are made) and (iii), if applicable, the Subject Lender is
unwilling to withdraw the notice delivered to Company pursuant to subsection 2.8
and/or is unwilling to remedy its default upon 10 days prior written notice to
the Subject Lender and Administrative Agent, Company may require the Subject
Lender to assign all of its Loans and Commitments to such other Lender,
Lenders, Eligible Assignee or Eligible Assignees pursuant to the provisions of
subsection 10.1B; provided that, prior to or concurrently with such
replacement, (1) the Subject Lender shall have received payment in full of all
principal, interest, fees and other amounts (including all amounts under subsections
2.6D, 2.7 and/or 2.8B (if applicable)) through such date of replacement and a
release from its obligations under the Loan


 


62





















 


Documents, (2) the
processing fee required to be paid by subsection 10.1B(i) shall have been
paid to Administrative Agent, (3) all of the requirements for such assignment
contained in subsection 10.1B, including, without limitation, the consent
of Administrative Agent (if required) and the receipt by Administrative Agent
of an executed Assignment Agreement and other supporting documents, have been
fulfilled, and (4) in the event such Subject Lender is a Non-Consenting Lender,
each assignee shall consent, at the time of such assignment, to each matter in
respect of which such Subject Lender was a Non-Consenting Lender and Company
also requires each other Subject Lender that is a Non-Consenting Lender to
assign its Loans and Commitments.  For
the avoidance of doubt, if a Lender is a Non-Consenting Lender solely because
it refused to consent to an amendment, modification or waiver that required the
consent of 100% of Lenders with Obligations directly affected thereby (which
amendment, modification or waiver did not accordingly require the consent of
100% of all Lenders), the Loans and Commitments of such Non-Consenting Lender
that are subject to the assignments required by this subsection 2.9 shall
include all Loans and Commitments of such Non-Consenting Lender.


 


2.10                        Incremental Term Loan
Commitments and Revolving Loan Commitments.


 


A.            Company may, by written notice to
Administrative Agent from time to time, request Incremental Term Loan
Commitments and/or Incremental Revolving Loan Commitments in an amount not to
exceed the Incremental Amount from one or more Incremental Term Lenders and/or
Incremental Revolving Lenders (which may include any existing Lender) willing
to provide such Incremental Term Loans and/or Incremental Revolving Loans, as
the case may be, in their own discretion; provided, that each
Incremental Term Lender and/or Incremental Revolving Lender, if not already a
Lender hereunder, shall be subject to the approval of Administrative Agent
(which approval shall not be unreasonably withheld).  Such notice shall set forth (i) the
amount of the Incremental Term Loan Commitments and/or Incremental Revolving
Loan Commitments being requested (which shall be in minimum increments of
$1,000,000 and a minimum amount of $25,000,000 or equal to the remaining
Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments
and/or Incremental Revolving Loan Commitments are requested to become effective
(the “Increased Amount Date”) and (iii) (A) whether such
Incremental Term Loan Commitments are to be Tranche B Term Loan Commitments or
commitments to make term loans with terms different from the Tranche B Term
Loans (“Other Term Loans”) and/or (B) whether such Incremental Revolving
Loan Commitments are to be Revolving Loan Commitments or commitments to make
revolving loans with terms different from the Revolving Loans (“Other
Revolving Loans”).


 


B.            Company and each Incremental Term Lender
and/or Incremental Revolving Lender shall execute and deliver to Administrative
Agent an Incremental Assumption Agreement and such other documentation as
Administrative Agent shall reasonably specify to evidence the Incremental Term
Loan Commitment of such Incremental Term Lender and/or Incremental Revolving
Loan Commitment of such Incremental Revolving Loan Lender.  Each Incremental Assumption Agreement shall
specify the terms of the Incremental Term Loans and/or Incremental Revolving
Loans to be made thereunder; provided, that, without the prior written
consent of the Required Lenders, (i) the final maturity date of (A) any
Other Term Loans shall be no earlier than the earliest maturity date of any of
the Term Loans and/or (B) any Other Revolving Loans shall be no earlier than
the Revolving Loan Commitment Termination Date and (ii) the


 


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average life to maturity of
any Other Term Loans and/or Other Revolving Loans, as the case may be, shall be
no shorter than the average life to maturity of the Term Loans and/or the
Revolving Loans, respectively, and provided, further,
that the interest rate margin in respect of any Other Term Loan and/or Other
Revolving Loan shall be the same as that applicable to the Term Loans and/or
the Revolving Loans; except that if the final maturity date of such Other Term
Loan and/or Other Revolving Facility Loan is later than the latest maturity
date of any of the Term Loans or the Revolving Loan Commitment Termination
Date, as the case may be, the interest rate margin in respect of any Other Term
Loan and/or Other Revolving Loan may exceed the applicable Eurodollar Rate
Margin or Base Rate Margin for the Term Loans and/or the Revolving Loans,
respectively, by no more than 0.50% (it being understood that any such increase
may take the form of original issue discount (“OID”), with OID being
equated to the interest rates in a manner determined by Administrative Agent
based on an assumed four-year life to maturity), or if it does so exceed such
applicable Eurodollar Rate Margin or Base Rate Margin, such applicable
Eurodollar Rate Margin or Base Rate Margin shall be increased so that the
interest rate margin in respect of such Other Term Loan or Other Revolving
Loan, as the case may be (giving effect to any OID issued in connection with
such Other Term Loan) is no more than 0.50% higher than the applicable
Eurodollar Rate Margin or Base Rate Margin for the Term Loans or the Revolving
Loans, respectively.  Administrative
Agent shall promptly notify each Lender as to the effectiveness of each
Incremental Assumption Agreement.  Each
of the parties hereto hereby agrees that, upon the effectiveness of any
Incremental Assumption Agreement, this Agreement shall be amended to the extent
(but only to the extent) necessary to reflect the existence and terms of the
Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments
evidenced thereby as provided for in subsection 10.6.  Any such deemed amendment may be memorialized
in writing by Administrative Agent with Company’s consent (not to be
unreasonably withheld) and furnished to the other parties hereto.


 


C.            Notwithstanding the foregoing, no Incremental
Term Loan Commitment or Incremental Revolving Loan Commitment shall become
effective under this subsection 2.10 unless (i) on the date of such
effectiveness, the conditions set forth in subsection 4.3 shall be
satisfied and Administrative Agent shall have received a certificate to that
effect dated such date and executed by the Chief Financial Officer of Company,
(ii) Administrative Agent shall have received legal opinions, board resolutions
and other closing certificates and documentation as required by the relevant
Incremental Assumption Agreement and consistent with those delivered on the
Closing Date under subsection 4.1 and such additional documents and
filings (including amendments to the Mortgages and other Collateral Documents
and title endorsement bring-downs) as Administrative Agent may reasonably
require to assure that the Incremental Term Loans and/or Incremental Revolving
Loans are secured by the Collateral ratably with the existing Term Loans and
Revolving Loans and (iii) Company would be in Pro Forma Compliance after
giving effect to such Incremental Term Loan Commitment and/or Incremental
Revolving Loan Commitments and the Loans to be made thereunder and the
application of the proceeds therefrom as if made and applied on such date.


 


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Section 3.              LETTERS OF CREDIT


 


3.1                               Issuance of Letters of
Credit and Lenders’ Purchase of Participations Therein.


 


A.  Letters of Credit. 
Company may request, in accordance with the provisions of this subsection 3.1,
from time to time during the period from the Closing Date to but excluding the
30th day prior to the Revolving Loan Commitment Termination Date,
that one or more Revolving Lenders issue Letters of Credit for the account of
Company for the general corporate purposes of Company or a Subsidiary of
Company.  Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of Company herein set forth, any one or more Revolving Lenders may,
but (except as provided in subsection 3.1B(ii)) shall not be obligated to,
issue such Letters of Credit in accordance with the provisions of this subsection 3.1;
provided that Company shall not request that any Revolving Lender issue
(and no Revolving Lender shall issue):


 


(i)            any Letter of Credit if, after giving effect
to such issuance, the Total Utilization of Revolving Loan Commitments would
exceed the Revolving Loan Commitment Amount then in effect;


 


(ii)           any Letter of Credit if, after giving effect to such issuance, the
Letter of Credit Usage would exceed $40,000,000;


 


(iii)          Standby Letter of Credit having an expiration date later than the
earlier of (a) ten days prior to the Revolving Loan Commitment Termination Date
and (b) the date which is one year from the date of issuance of such
Standby Letter of Credit; provided that the immediately preceding clause
(b) shall not prevent any Issuing Lender from agreeing that a Standby Letter of
Credit will automatically be extended for one or more successive periods not to
exceed one year each unless such Issuing Lender elects not to extend for any
such additional period; and provided, further that such Issuing
Lender shall elect not to extend such Standby Letter of Credit if it has
knowledge that an Event of Default has occurred and is continuing (and has not
been waived in accordance with subsection 10.6) at the time such Issuing
Lender must elect whether or not to allow such extension and that such Issuing
Lender shall give notice to Company of such election;


 


(iv)          any Standby Letter of Credit issued for the purpose of supporting (a)
trade payables or (b) any Indebtedness constituting “antecedent debt” (as that
term is used in Section 547 of the Bankruptcy Code);


 


(v)           any Commercial Letter of Credit having an expiration date
(a) later than the earlier of (1) the date which is 5 days prior to
the Revolving Loan Commitment Termination Date and (2) the date which is 180
days from the date of issuance of such Commercial Letter of Credit or
(b) that is otherwise unacceptable to the applicable Issuing Lender in its
reasonable discretion; or


 


(vi)          any Letter of Credit denominated in a currency other than Dollars.


 


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B.  Mechanics of
Issuance.


 


(i)            Request for Issuance. 
Whenever Company desires the issuance of a Letter of Credit, it shall
deliver to Administrative Agent a Request for Issuance no later than 12:00 Noon
(New York City time) at least three Business Days, or such shorter period as
may be agreed to by the Issuing Lender in any particular instance, in advance
of the proposed date of issuance.  The
Issuing Lender, in its reasonable discretion, may require changes in the text
of the proposed Letter of Credit or any documents described in or attached to
the Request for Issuance.  In furtherance
of the provisions of subsection 10.8, and not in limitation thereof,
Company may submit Requests for Issuance by telefacsimile and Administrative
Agent and Issuing Lenders may rely and act upon any such Request for Issuance
without receiving an original signed copy thereof.  No Letter of Credit shall require payment
against a conforming demand for payment to be made thereunder on the same
business day (under the laws of the jurisdiction in which the office of the
Issuing Lender to which such demand for payment is required to be presented is
located) on which such demand for payment is presented if such presentation is
made after 12:00 Noon (in the time zone of such office of the Issuing Lender)
on such business day.


 


(ii)           Determination of Issuing Lender.  Upon
receipt by Administrative Agent of a Request for Issuance pursuant to subsection 3.1B(i)
requesting the issuance of a Letter of Credit, in the event Administrative
Agent (or an Affiliate thereof) elects to issue such Letter of Credit,
Administrative Agent (or such Affiliate) shall promptly so notify Company, and
Administrative Agent (or such Affiliate) shall be the Issuing Lender with
respect thereto.  In the event that
Administrative Agent (or such Affiliate), in its sole discretion, elects not to
issue such Letter of Credit, Administrative Agent shall promptly so notify
Company, whereupon Company may request any other Revolving Lender to issue such
Letter of Credit by delivering to such Revolving Lender a copy of the
applicable Request for Issuance.  Any Revolving
Lender so requested to issue such Letter of Credit shall promptly notify
Company and Administrative Agent whether or not, in its sole discretion, it has
elected to issue such Letter of Credit, and any such Revolving Lender that so
elects to issue such Letter of Credit shall be the Issuing Lender with respect
thereto.  In the event that all other
Revolving Lenders shall have declined to issue such Letter of Credit,
notwithstanding the prior election of Administrative Agent not to issue such
Letter of Credit, Administrative Agent (or an Affiliate thereof) shall be
obligated to issue such Letter of Credit and shall be the Issuing Lender with
respect thereto, notwithstanding the fact that the Letter of Credit Usage with
respect to such Letter of Credit and with respect to all other Letters of
Credit issued by Administrative Agent (or Affiliates thereof), when aggregated
with Administrative Agent’s outstanding Revolving Loans and Swing Line Loans,
may exceed the amount of Administrative Agent’s Revolving Loan Commitment then
in effect.


 


(iii)          Issuance of Letter of Credit.  Upon
satisfaction or waiver (in accordance with subsection 10.6) of the
conditions set forth in subsection 4.4, the Issuing Lender shall issue the
requested Letter of Credit in accordance with the Issuing Lender’s standard
operating procedures.


 


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(iv)          Notification to Revolving Lenders.  Upon
the issuance of or amendment to any Letter of Credit the applicable Issuing
Lender shall promptly notify Administrative Agent and Company of such issuance
or amendment in writing and such notice shall be accompanied by a copy of such
Letter of Credit or amendment.  Upon
receipt of such notice (or, if Administrative Agent is the Issuing Lender,
together with such notice), Administrative Agent shall notify each Revolving
Lender in writing of such issuance or amendment and the amount of such
Revolving Lender’s respective participation in such Letter of Credit or
amendment, and, if so requested by a Revolving Lender, Administrative Agent
shall provide such Lender with a copy of such Letter of Credit or
amendment.  In the case of Commercial
Letters of Credit, in the event that Issuing Lender is other than Administrative
Agent, such Issuing Lender will send by facsimile transmission to
Administrative Agent, promptly upon the first Business Day of each week, a
report of its daily aggregate maximum amount available for drawing under
Commercial Letters of Credit for the previous week.  Upon receipt of such report, Administrative
Agent shall notify each Revolving Lender in writing of the contents thereof.


 


C.  Revolving Lenders’
Purchase of Participations in Letters of Credit. 
Immediately upon the issuance of each Letter of Credit, each Revolving
Lender shall be deemed to, and hereby agrees to, have irrevocably purchased
from the Issuing Lender a participation in such Letter of Credit and any
drawings honored thereunder in an amount equal to such Revolving Lender’s Pro
Rata Share of the maximum amount that is or at any time may become available to
be drawn thereunder.


 


3.2                               Letter of Credit Fees.


 


Company
agrees to pay the following amounts with respect to Letters of Credit issued
hereunder:


 


(i)            with respect to each Letter of Credit,
(a) a fronting fee, payable directly to the applicable Issuing Lender for
its own account, equal to the greater of (X) $500 and (Y) 0.125% per annum of
the daily amount available to be drawn under such Letter of Credit and
(b) a letter of credit fee, payable to Administrative Agent for the
account of Revolving Lenders, equal to the applicable Eurodollar Rate Margin
for Revolving Loans, plus, upon the application of increased rates of
interest pursuant to subsection 2.2E, 2% per annum, multiplied by
the daily amount available to be drawn under such Letter of Credit, each such
fronting fee or letter of credit fee to be payable in arrears on and to (but
excluding) each February 28, May 31, August 31 and November 30
of each year and computed on the basis of a 360-day year for the actual number
of days elapsed; and


 


(ii)           with respect to the issuance, amendment or transfer of each Letter of
Credit and each payment of a drawing made thereunder (without duplication of
the fees payable under clause (i) above), documentary and processing
charges payable directly to the applicable Issuing Lender for its own account
in accordance with such Issuing Lender’s standard schedule for such
charges in effect at the time of such issuance, amendment, transfer or payment,
as the case may be.


 


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For purposes of calculating
any fees payable under clause (i) of this subsection 3.2, the daily
amount available to be drawn under any Letter of Credit shall be determined as
of the close of business on any date of determination.


 


3.3                               Drawings and Reimbursement
of Amounts Paid Under Letters of Credit.


 


A.  Responsibility of Issuing Lender With Respect
to Drawings.  In determining whether to honor any drawing
under any Letter of Credit by the beneficiary thereof, the Issuing Lender shall
be responsible only to examine the documents delivered under such Letter of
Credit with reasonable care so as to ascertain whether they appear on their
face to be in accordance with the terms and conditions of such Letter of
Credit.


 


B.  Reimbursement by Company of Amounts Paid
Under Letters of Credit.  In the event an Issuing Lender has determined
to honor a drawing under a Letter of Credit issued by it, such Issuing Lender
shall immediately notify Company and Administrative Agent, and Company shall
reimburse such Issuing Lender on or before the Business Day immediately
following the date on which such drawing is honored (the “Reimbursement Date”) in an amount in
Dollars and in same day funds equal to the amount of such drawing; provided
that, anything contained in this Agreement to the contrary notwithstanding, (i)
unless Company shall have notified Administrative Agent and such Issuing Lender
prior to 12:00 Noon (New York City time) on the date such drawing is honored
that Company intends to reimburse such Issuing Lender for the amount of such
drawing with funds other than the proceeds of Revolving Loans, Company shall be
deemed to have given a timely Notice of Borrowing to Administrative Agent
requesting Revolving Lenders to make Revolving Loans that are Base Rate Loans
on the Reimbursement Date in an amount in Dollars equal to the amount of such
drawing and (ii) subject to satisfaction or waiver of the conditions
specified in subsection 4.4B, Revolving Lenders shall, on the
Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount
of such drawing, the proceeds of which shall be applied directly by
Administrative Agent to reimburse such Issuing Lender for the amount of such
drawing; and provided, further that if for any reason proceeds of
Revolving Loans are not received by such Issuing Lender on the Reimbursement
Date in an amount equal to the amount of such drawing, Company shall reimburse
such Issuing Lender, on demand, in an amount in same day funds equal to the
excess of the amount of such drawing over the aggregate amount of such
Revolving Loans, if any, which are so received. 
Nothing in this subsection 3.3B shall be deemed to relieve any Revolving
Lender from its obligation to make Revolving Loans on the terms and conditions
set forth in this Agreement, and Company shall retain any and all rights it may
have against any Revolving Lender resulting from the failure of such Revolving
Lender to make such Revolving Loans under this subsection 3.3B.


 


C.  Payment by Lenders of Unreimbursed Amounts
Paid Under Letters of Credit.


 


(i)            Payment by Revolving Lenders.  In
the event that Company shall fail for any reason to reimburse any Issuing
Lender as provided in subsection 3.3B in an amount equal to the amount of any
payment by such Issuing Lender under a Letter of Credit issued by it, such
Issuing Lender shall promptly notify Administrative Agent, who shall promptly
notify each Revolving Lender of the unreimbursed amount of such honored


 


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drawing and of such
Revolving Lender’s respective participation therein based on such Revolving
Lender’s Pro Rata Share.  Each Revolving
Lender (other than such Issuing Lender) shall make available to Administrative
Agent an amount equal to its respective participation, in Dollars, in same day
funds, at the Funding and Payment Office, not later than 12:00 Noon (New York
City time) on the first Business Day after the date notified by Administrative
Agent, and Administrative Agent shall make available to such Issuing Lender in
Dollars, in same day funds, at the office of such Issuing Lender on such
Business Day the aggregate amount of the payments so received by Administrative
Agent.  In the event that any Revolving
Lender fails to make available to Administrative Agent on such Business Day the
amount of such Revolving Lender’s participation in such Letter of Credit as
provided in this subsection 3.3C, such Issuing Lender shall be entitled to
recover such amount on demand from such Revolving Lender together with interest
thereon at the rate customarily used by such Issuing Lender for the correction
of errors among banks for three Business Days and thereafter at the Base
Rate.  Nothing in this subsection 3.3C
shall be deemed to prejudice the right of Administrative Agent to recover, for
the benefit of Revolving Lenders, from any Issuing Lender any amounts made
available to such Issuing Lender pursuant to this subsection 3.3C in the event
that it is determined by the final judgment of a court of competent
jurisdiction that the payment with respect to a Letter of Credit by such
Issuing Lender in respect of which payments were made by Revolving Lenders
constituted gross negligence or willful misconduct on the part of such Issuing
Lender.


 


(ii)           Distribution to Lenders of Reimbursements Received
From Company.  In the event any Issuing Lender shall have
been reimbursed by other Revolving Lenders pursuant to subsection 3.3C(i) for
all or any portion of any payment by such Issuing Lender under a Letter of
Credit issued by it, and Administrative Agent or such Issuing Lender thereafter
receives any payments from Company in reimbursement of such payment under the
Letter of Credit, to the extent any such payment is received by such Issuing
Lender, it shall distribute such payment to Administrative Agent, and
Administrative Agent shall distribute to each other Revolving Lender that has
paid all amounts payable by it under subsection 3.3C(i) with respect to such
payment such Revolving Lender’s Pro Rata Share of all payments subsequently
received by Administrative Agent or by such Issuing Lender from Company.  Any such distribution shall be made to a
Revolving Lender at the account specified in subsection 2.4C(iii).


 


D.  Interest on Amounts Paid Under Letters of
Credit.


 


(i)            Payment of Interest by Company. 
Company agrees to pay to Administrative Agent, with respect to payments
under any Letters of Credit issued by any Issuing Lender, interest on the
amount paid by such Issuing Lender in respect of each such payment from the
date a drawing is honored to but excluding the date such amount is reimbursed
by Company (including any such reimbursement out of the proceeds of Revolving
Loans pursuant to subsection 3.3B) at a rate equal to (a) for the period from
the date such drawing is honored to but excluding the Reimbursement Date, the
rate then in effect under this Agreement with respect to Revolving Loans that
are Base Rate Loans and (b) thereafter, a rate which is 2% per annum in excess
of the rate of interest otherwise


 


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payable under this Agreement
with respect to Revolving Loans that are Base Rate Loans.  Interest payable pursuant to this subsection
3.3D(i) shall be computed on the basis of a 365-day or 366-day year, as the
case may be, for the actual number of days elapsed in the period during which
it accrues and shall be payable on demand or, if no demand is made, on the date
on which the related drawing under a Letter of Credit is reimbursed in full.


 


(ii)           Distribution of Interest Payments by Administrative
Agent.  Promptly upon receipt by Administrative Agent
of any payment of interest pursuant to subsection 3.3D(i) with respect to a
payment under a Letter of Credit, (a) Administrative Agent shall
distribute to (x) each Revolving Lender (including the Issuing Lender) out
of the interest received by Administrative Agent in respect of the period from
the date such drawing is honored to but excluding the date on which the
applicable Issuing Lender is reimbursed for the amount of such payment
(including any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B), the amount that such Revolving Lender would have
been entitled to receive in respect of the letter of credit fee that would have
been payable in respect of such Letter of Credit for such period pursuant to
subsection 3.2 if no drawing had been honored under such Letter of Credit, and
(y) such Issuing Lender the amount, if any, remaining after payment of the
amounts applied pursuant to clause (x), and (b) in the event such Issuing
Lender shall have been reimbursed by other Revolving Lenders pursuant to
subsection 3.3C(i) for all or any portion of such payment, Administrative Agent
shall distribute to each Revolving Lender (including such Issuing Lender) that
has paid all amounts payable by it under subsection 3.3C(i) with respect to
such payment such Revolving Lender’s Pro Rata Share of any interest received by
Administrative Agent in respect of that portion of such payment so made by
Revolving Lenders for the period from the date on which such Issuing Lender was
so reimbursed to but excluding the date on which such portion of such payment
is reimbursed by Company.  Any such
distribution shall be made to a Revolving Lender at the account specified in
subsection 2.4C(iii).


 


3.4                               Obligations Absolute.


 


The obligation of Company to
reimburse each Issuing Lender for payments under the Letters of Credit issued
by it and to repay any Revolving Loans made by Revolving Lenders pursuant to
subsection 3.3B and the obligations of Revolving Lenders under subsection
3.3C(i) shall be unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances including
any of the following circumstances:


 


(i)            any lack of validity or enforceability of any
Letter of Credit;


 


(ii)           the existence of any claim, set-off, defense
or other right which Company or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons for whom
any such transferee may be acting), any Issuing Lender or other Revolving
Lender or any other Person or, in the case of a Revolving Lender, against
Company, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any underlying
transaction


 


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between Company or one of
its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);


 


(iii)          any draft or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;


 


(iv)          payment by the applicable Issuing Lender
under any Letter of Credit against presentation of a draft or other document
which does not substantially comply with the terms of such Letter of Credit;


 


(v)           any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Company or any of its Subsidiaries;


 


(vi)          any breach of this Agreement or any other
Loan Document by any party thereto; or


 


(vii)         the fact that an Event of Default or a
Potential Event of Default shall have occurred and be continuing;


 


provided, in each case, that payment by the
applicable Issuing Lender under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of such Issuing Lender under
the circumstances in question (as determined by a final judgment of a court of
competent jurisdiction).


 


3.5                               Nature of Issuing Lenders’
Duties.


 


As between Company and any
Issuing Lender, Company assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Lender by, the
respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for:  (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any such Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or delay in
the transmission or otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of such Issuing Lender, including any act or
omission by a


 


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Government Authority, and none of the above shall affect or impair, or
prevent the vesting of, any of such Issuing Lender’s rights or powers
hereunder.


 


In furtherance and extension
and not in limitation of the specific provisions set forth in the first
paragraph of this subsection 3.5, any action taken or omitted by any Issuing
Lender under or in connection with the Letters of Credit issued by it or any
documents and certificates delivered thereunder, if taken or omitted in good
faith, shall not put such Issuing Lender under any resulting liability to
Company.


 


Notwithstanding anything to
the contrary contained in this subsection 3.5, Company shall retain any and all
rights it may have against any Issuing Lender for any liability arising out of
the gross negligence or willful misconduct of such Issuing Lender, as
determined by a final judgment of a court of competent jurisdiction.


 


Section 4.              CONDITIONS TO LOANS AND
LETTERS OF CREDIT


 


The obligations of Lenders
to make Loans and the issuance of Letters of Credit hereunder are subject to
the satisfaction of the following conditions.


 


4.1                               Conditions to Term Loans and
Initial Revolving Loans and Swing Line Loans.


 


The obligations of Lenders
to make the Term Loans and any Revolving Loans and Swing Line Loans to be made
on the Closing Date are, in addition to the conditions precedent specified in
subsection 4.3, subject to prior or concurrent satisfaction of the following
conditions:


 


A.  Loan Party Documents.  On
or before the Closing Date, Company shall, and shall cause each other Loan
Party to, deliver to Lenders or to Administrative Agent the following with
respect to Company or such Loan Party, as the case may be, each, unless
otherwise noted, dated the Closing Date:


 


(i)            Copies of the Organizational Documents of
such Person, certified by the Secretary of State of its jurisdiction of
organization or, if such document is of a type that may not be so certified,
certified by the secretary or similar officer of the applicable Loan Party,
together with a good standing certificate from the Secretary of State of its
jurisdiction of organization and each other state in which such Person is
qualified to do business (other than, in the case of jurisdictions other than
such Person’s jurisdiction of organization or formation, where the failure to
be in good standing or so qualified could not be reasonably expected to have a
Material Adverse Effect) each dated a recent date prior to the Closing Date;


 


(ii)           Resolutions of the Governing Body of such
Person approving and authorizing the execution, delivery and performance of the
Loan Documents to which it is a party, certified as of the Closing Date by the
secretary or similar officer of such Person as being in full force and effect
without modification or amendment;


 


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(iii)          Signature and incumbency certificates of the
officers of such Person executing the Loan Documents to which it is a party;


 


(iv)          Executed originals of the Loan Documents to
which such Person is a party; and


 


(v)           Such other documents as Administrative Agent
may reasonably request.


 


B.  Fees.  Company shall have paid to
Administrative Agent, for distribution (as appropriate) to Administrative Agent
and Lenders, the fees payable on the Closing Date referred to in subsection
2.3.


 


C.  Corporate and Capital Structure; Ownership.  The
corporate organizational structure, capital structure and ownership of Company
and its Subsidiaries shall be as set forth on Schedule 4.1C annexed
hereto; provided, however, that the ownership of Company shall not be
included on such schedule.


 


D.  Representations and Warranties; Performance
of Agreements.  Company shall have delivered to
Administrative Agent an Officer’s Certificate, in form and substance
satisfactory to Administrative Agent, to the effect that the representations
and warranties in Section 5 are true, correct and complete in all material
respects on and as of the Closing Date to the same extent as though made on and
as of that date (or, to the extent such representations and warranties
specifically relate to an earlier date, that such representations and
warranties were true, correct and complete in all material respects on and as
of such earlier date) and that Company shall have performed in all material
respects all agreements and satisfied all conditions which this Agreement
provides shall be performed or satisfied by it on or before the Closing Date
except as otherwise disclosed to and agreed to in writing by Administrative
Agent; provided that, if a representation and warranty, covenant or
condition is qualified as to materiality, the applicable materiality qualifier
set forth in this subsection 4.1D shall be disregarded with respect to such
representation and warranty, covenant or condition for purposes of this
condition.


 


E.  Financial Statements; Pro Forma Balance
Sheet; Projections.  On or before the Closing Date, Lenders shall
have received from Company (i) the audited and unaudited financial
statements of Company and its Subsidiaries described in Schedule 5.3,
(ii) a pro forma balance sheet, giving effect to the Recapitalization,
which pro forma balance sheet shall be in form and substance reasonably
satisfactory to Administrative Agent, and (iii) projected financial
statements (including balance sheets and income and cash flow statements) for
the seven-year period following the Closing Date.


 


F.  Opinions of Counsel to Loan Parties. 
Lenders shall have received originally executed copies of one or more
favorable written opinions of Skadden, Arps, Slate, Meagher & Flom LLP,
counsel for Loan Parties, in form and substance reasonably satisfactory to
Administrative Agent and its counsel, dated as of the Closing Date and setting
forth substantially the matters in the opinions designated in Exhibit IX
annexed hereto and as to such other matters as Administrative Agent acting on
behalf of Lenders may reasonably request (this Agreement constituting a written
request by Company to such counsel to deliver such opinions to Lenders).


 


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G.  Solvency Assurances.  On
the Closing Date, Administrative Agent and Lenders shall have received an
Officer’s Certificate of Company dated the Closing Date, substantially in the
form of Exhibit XI annexed hereto and with appropriate attachments,
in each case demonstrating that, after giving effect to the consummation of the
transactions contemplated by the Loan Documents, Company and each Subsidiary
Guarantor on a consolidated basis will be Solvent.


 


H.  Evidence of Insurance.  Administrative
Agent shall have received a certificate from Company’s insurance broker or
other evidence satisfactory to it that all insurance required to be maintained
pursuant to subsection 6.4 is in full force and effect and that Administrative
Agent on behalf of Lenders has been named as additional insured and/or loss
payee thereunder to the extent required under subsection 6.4.


 


I.  Necessary Governmental Authorizations and
Consents; Expiration of Waiting Periods, Etc. 
Company shall have obtained all Governmental Authorizations and all
consents of other Persons, in each case that are necessary or, in the
reasonable credit judgment of Administrative Agent, advisable in connection
with the transactions contemplated by the Loan Documents, the Recapitalization
and the continued operation of the business conducted by Company and its
Subsidiaries in substantially the same manner as conducted prior to the Closing
Date.  Each such Governmental
Authorization and consent shall be in full force and effect, except in a case
where the failure to obtain or maintain a Governmental Authorization or
consent, either individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.  No action, request for stay, petition for
review or rehearing, reconsideration, or appeal with respect to any of the
foregoing shall be pending.


 


J.  Environmental Reports. 
Administrative Agent shall have received all reports and other
information regarding environmental matters relating to Company and its
Subsidiaries and the Facilities to the extent available to the Company and
requested by Administrative Agent.


 


K.  Security Interests in Personal Property. 
Administrative Agent shall have received evidence satisfactory to it
that Company and Subsidiary Guarantors shall have taken or caused to be taken
all such actions, executed and delivered or caused to be executed and delivered
all such agreements, documents and instruments, and made or caused to be made
all such filings and recordings (other than the filing or recording of items
described in clauses (ii), (iii) and (iv) below) that may be necessary or, in
the reasonable opinion of Administrative Agent, desirable in order to create in
favor of Administrative Agent, for the benefit of Lenders, a valid and (upon
such filing and recording) perfected First Priority security interest in the
Collateral.  Such actions shall include
the following:


 


(i)            Stock Certificates and Instruments. 
Delivery to Administrative Agent of (a) certificates (which certificates
shall be accompanied by irrevocable undated stock powers, duly endorsed in
blank and otherwise satisfactory in form and substance to Administrative Agent)
representing all Capital Stock required to be pledged pursuant to the Security
Agreement and any Foreign Pledge Agreement and (b) all promissory notes or
other instruments (duly endorsed, where appropriate, in a manner satisfactory
to


 


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Administrative Agent)
evidencing any Collateral, unless otherwise consented to by Administrative
Agent in its sole discretion;


 


(ii)           Lien Searches and UCC Termination Statements. 
Delivery to Administrative Agent of (a) the results of a recent search,
satisfactory to Administrative Agent and by a Person satisfactory to Administrative
Agent, of all effective UCC financing statements and fixture filings and all
judgment and tax lien filings which may have been made with respect to any
personal property of any Loan Party, together with copies of all such filings
disclosed by such search, and (b) duly completed UCC termination statements,
and authorization of the filing thereof from the applicable secured party, as
may be necessary to terminate any effective UCC financing statements or fixture
filings disclosed in such search (other than any such financing statements or
fixture filings in respect of Liens permitted to remain outstanding pursuant to
the terms of this Agreement);


 


(iii)          UCC Financing Statements and Fixture Filings. 
Delivery to Administrative Agent of duly completed UCC financing
statements and, where appropriate, fixture filings, with respect to all
personal property Collateral of such Loan Party, for filing in all
jurisdictions as may be necessary or, in the reasonable opinion of
Administrative Agent, desirable to perfect the security interests created
in such Collateral pursuant to the Collateral Documents;


 


(iv)          Cover Sheets, Etc. 
Delivery to Administrative Agent of all documents or instruments
required to be filed with any IP Filing Office in order to create or perfect
Liens in respect of any IP Collateral or evidence the interest of
Administrative Agent and Lenders therein, together with releases duly executed
(if necessary) of security interests by all applicable Persons for filing in
all applicable jurisdictions as may be necessary to terminate any effective
filings in any IP Filing Office in respect of any IP Collateral (other than any
such filings in respect of Liens permitted to remain outstanding pursuant to
the terms of this Agreement);


 


(v)           Control Agreements. 
Delivery to Administrative Agent of Control Agreements with financial
institutions and other Persons in order to perfect Liens in respect of Deposit
Accounts and Securities Accounts held by Company or a Subsidiary Guarantor (to
the extent required by subsection 6.11 hereof) pursuant to the Collateral
Documents;


 


(vi)          Foreign Pledge Agreements. 
Execution and delivery to Administrative Agent of Foreign Pledge
Agreements with respect to all of the Capital Stock owned by Company or a
Subsidiary Guarantor of all first tier Material Foreign Subsidiaries (or, in
the case of a Foreign Corporation, 65% of the Capital Stock of such Foreign
Corporation) which Capital Stock is required to be pledged under the Collateral
Documents and with respect to which Administrative Agent deems a Foreign Pledge
Agreement necessary or advisable to perfect or otherwise protect the First
Priority Liens granted to Administrative Agent on behalf of Lenders in such
Capital Stock, and the taking of all such other actions


 


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under the laws of such
jurisdictions as Administrative Agent may deem necessary or advisable to
perfect or otherwise protect such Liens; and


 


(vii)         Opinions of Local Counsel. 
Delivery to Administrative Agent of an opinion of counsel (which counsel
shall be reasonably satisfactory to Administrative Agent) under the laws of
each jurisdiction in which any Loan Party or any personal property Collateral
is located with respect to the creation and perfection of the security
interests in favor of Administrative Agent in such Collateral and such other
matters governed by the laws of such jurisdiction regarding such security
interests as Administrative Agent may reasonably request, in each case in form
and substance reasonably satisfactory to Administrative Agent.


 


L.  Closing Date Mortgages; Closing Date Mortgage
Policies; Etc.  Administrative Agent shall have received from
Company and each applicable Subsidiary Guarantor:


 


(i)            Closing Date Mortgages. 
Fully executed and notarized Mortgages (each a “Closing Date Mortgage” and, collectively,
the “Closing Date Mortgages”), in
proper form for recording in all appropriate places in all applicable
jurisdictions, encumbering each owned Real Property Asset listed in Schedule 4.1L
annexed hereto (each a “Closing Date
Mortgaged Property” and, collectively, the “Closing Date Mortgaged Properties”), which
such Schedule 4.1L shall include each Real Property Asset owned in fee
by Company and each Subsidiary Guarantor as of the Closing Date having, in each
case, a fair market value in excess of $2,000,000;


 


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


 


(iii)          Title Insurance.  (a)
ALTA mortgagee title insurance policies (or, in respect of property located in
Texas, non-ALTA policies) or unconditional commitments therefor (the “Closing Date Mortgage Policies”) issued by
the Title Company with respect to the Closing Date Mortgaged Properties listed
in Schedule 4.1L annexed hereto, in amounts not less than the respective
amounts designated therein with respect to any particular Closing Date
Mortgaged Properties, insuring fee simple title to each such Closing Date
Mortgaged Property vested in such Loan Party and assuring Administrative Agent
that the applicable Closing Date Mortgages create valid and enforceable First
Priority mortgage Liens on the respective Closing Date Mortgaged Properties encumbered
thereby, subject only to a standard survey exception, which Closing Date
Mortgage Policies (1) shall include an endorsement for mechanics’ liens
(subject to exceptions for mechanics liens appearing of record on the Closing
Date which would constitute Permitted Encumbrances and which are acceptable to
Administrative Agent), for future advances under this Agreement and for any
other matters reasonably requested


 


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by Administrative Agent and
(2) shall provide for affirmative insurance and such reinsurance as
Administrative Agent may reasonably request, all of the foregoing in form and
substance reasonably satisfactory to Administrative Agent; and (b) evidence
satisfactory to Administrative Agent that such Loan Party has (i) delivered to
the Title Company all certificates and affidavits required by the Title Company
in connection with the issuance of the Closing Date Mortgage Policies and (ii)
paid to the Title Company or to the appropriate Government Authorities all
expenses and premiums of the Title Company in connection with the issuance of
the Closing Date Mortgage Policies and all recording and stamp taxes (including
mortgage recording and intangible taxes) payable in connection with recording
the Closing Date Mortgages in the appropriate real estate records;


 


(iv)          Title Reports.  With
respect to each Closing Date Mortgaged Property listed in Schedule 4.1L
annexed hereto, a title report issued by the Title Company with respect
thereto, dated not more than five (5) days prior to the Closing Date and
satisfactory in form and substance to Administrative Agent;


 


(v)           Copies of Documents Relating to Title
Exceptions.  Copies of all recorded documents listed as
exceptions to title or otherwise referred to in the Closing Date Mortgage
Policies or in the title reports delivered pursuant to subsection 4.1L(iv);


 


(vi)          Matters Relating to Flood Hazard Properties.  (a)
Evidence, which may be in the form of a letter from an insurance broker or a
municipal engineer, as to whether (1) any Closing Date Mortgaged Property
is a Flood Hazard Property and (2) the community in which any such Flood
Hazard Property is located is participating in the National Flood Insurance
Program, (b) if there are any such Flood Hazard Properties, such Loan Party’s
written acknowledgement of receipt of written notification from Administrative
Agent (1) as to the existence of each such Flood Hazard Property and
(2) as to whether the community in which each such Flood Hazard Property
is located is participating in the National Flood Insurance Program, and (c) in
the event any such Flood Hazard Property is located in a community that
participates in the National Flood Insurance Program, evidence that Company has
obtained flood insurance in respect of such Flood Hazard Property to the extent
required under the applicable regulations of the Board of Governors of the
Federal Reserve System; and


 


(vii)         Environmental Indemnity.  If
requested by Administrative Agent, an environmental indemnity agreement, satisfactory
in form and substance to Administrative Agent and its counsel, with respect to
the indemnification of Administrative Agent and Lenders for any liabilities
that may be imposed on or incurred by any of them as a result of any Hazardous
Materials Activity.


 


M.  Matters Relating to Issuance, Redemption and
Repurchase of Indebtedness of Company and its Subsidiaries.


 


(i)            Termination of Existing Credit Agreements and
Related Liens; Existing Letters of Credit.  On the Closing Date, Company
and its Subsidiaries shall have (a)


 


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repaid in full all
Indebtedness outstanding under the Existing Credit Agreements, (b) terminated
any commitments to lend or make other extensions of credit thereunder, (c)
delivered to Administrative Agent all documents or instruments necessary to
release all Liens securing Indebtedness or other obligations of Company and its
Subsidiaries thereunder, and (d) made arrangements satisfactory to
Administrative Agent with respect to any letters of credit outstanding
thereunder.


 


(ii)           Issuance of New Senior Subordinated Notes;
New Senior Subordinated Note Indenture.  On or prior to the Closing
Date, Company shall have consummated the offering of the New Senior
Subordinated Notes and received gross cash proceeds of not less than
$225,000,000.  Company shall have
delivered to Administrative Agent a fully executed or conformed copy of the New
Senior Subordinated Note Indenture.  The
New Senior Subordinated Note Indenture shall not have been amended, restated,
supplemented or otherwise modified, except for such changes thereto, if any,
that have been approved by Administrative Agent or that would otherwise have
been permitted to be made pursuant to subsection 7.12 if the New Senior
Subordinated Notes were issued and outstanding at the time of any such change.


 


(iii)          Partial Redemption of Existing Senior
Subordinated Notes.  Company shall have delivered to the trustee
under the Existing Senior Subordinated Notes Indenture not more than
$195,000,000 (including accrued interest and premiums) for the redemption of
Existing Senior Subordinated Notes having an aggregate stated principal amount
of not less than $185,255,000.  Such
redemption shall have been consummated in accordance with the terms and conditions
of the Existing Senior Subordinated Note Indenture.


 


(iv)          Repurchase of Existing Senior Secured Notes;
Consent Solicitation.  On the Closing Date, pursuant to the Tender
Offer, Company shall have repurchased and retired all of the Existing Senior Secured
Notes for an aggregate consideration, including accrued interest and premiums,
not to exceed $147,000,000.  The Tender
Offer and the repurchase of the Existing Senior Secured Notes pursuant to the
Tender Offer shall have been consummated in all respects in accordance with the
Tender Offer Materials, true, complete and correct copies of which have been
delivered to Administrative Agent prior to the Closing Date.  In connection with the Tender Offer, Company
shall have obtained all such consents and amendments with respect to the
Existing Senior Secured Note Indenture as may be required to permit the
consummation of the Recapitalization (including the incurrence of the
Obligations hereunder) and the other transactions contemplated by the Loan
Documents.  The terms and conditions of
such consents and amendments shall be as described in the Tender Offer
Materials and shall otherwise be in form and substance satisfactory to
Administrative Agent.  Company shall have
delivered to Administrative Agent a fully executed or conformed copy of the
Existing Senior Secured Note Indenture as so amended.


 


(v)           Closing Date Transactions Costs.  Fees
and expenses incurred in connection with the transactions described in this
subsection 4.1M shall not have


 


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exceeded $6,500,000 in the
aggregate and Administrative Agent shall have received evidence to its
satisfaction to such effect.


 


(vi)          Delivery of Redemption Notices.  On
the Closing Date, Company shall have issued redemption notices with respect to
(a) all of the outstanding Senior Subordinated Notes not previously redeemed as
contemplated by clause (iii) above and (b) all of the outstanding Existing
Convertible Subordinated Debentures, in each case in accordance with the terms
and conditions of the applicable indenture.


 


(vii)         Existing Indebtedness to Remain Outstanding. 
Administrative Agent shall have received an Officer’s Certificate of
Company stating that, after giving effect to the transactions described in this
subsection 4.1M, the Indebtedness of Loan Parties (other than Indebtedness
under the Loan Documents) shall consist of (a) approximately $100,000,000
in aggregate principal amount of Existing Senior Subordinated Notes,
(b) approximately $19,250,000 in aggregate principal amount of Existing
Convertible Subordinated Debentures, (c) approximately $3,000,000 in
aggregate principal amount of outstanding Indebtedness described in Part I
of Schedule 7.1 annexed hereto and (d) Indebtedness in an aggregate
amount not to exceed $4,500,000 in respect of Capital Leases described in
Part II of Schedule 7.1 annexed hereto.  The terms and conditions of all such
Indebtedness shall be in form and in substance reasonably satisfactory to
Administrative Agent.


 


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


 


Notwithstanding anything
herein to the contrary, it is understood and agreed that the documents and
other items set forth on Schedule 6.14 annexed hereto shall be delivered
after the Closing Date in accordance with Section 6.14.


 


4.2                               Conditions to Final
Redemption Date Tranche B Term Loans.


 


The obligations of Lenders
to make the Tranche B Term Loans on the Final Redemption Date are, in addition
to the conditions precedent specified in subsection 4.3, subject to prior or
concurrent satisfaction of the following conditions:


 


A.  Repurchase of Existing Senior Secured Notes. 
Company shall have repurchased or defeased all or substantially all of
the outstanding Existing Senior Secured Notes not repurchased on the Closing Date
at a price (including premium) not exceeding 112% of the stated principal
amount thereof, plus accrued interest. 
Such repurchase or defeasance shall have been consummated in accordance
with the terms and conditions of the Existing Senior Secured Note Indenture (as
amended on the Closing Date).


 


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B.  Redemption of Existing Senior Subordinated Notes. 
Company shall have redeemed all of the outstanding Existing Senior
Subordinated Notes for an aggregate consideration, including accrued interest
and premiums, not to exceed $108,000,000. 
Such redemption shall have been consummated in accordance with the terms
and conditions of the Existing Senior Subordinated Note Indenture (as amended
on the Closing Date).


 


C.  Redemption of Existing Convertible Subordinated Debentures. 
Company shall have redeemed all of the outstanding Existing Convertible
Subordinated Debentures for an aggregate consideration, including accrued
interest and premiums, not to exceed $19,500,000.  Such redemption shall have been consummated
in accordance with the terms and conditions of the Existing Convertible
Subordinated Debenture Indenture.


 


D.  Final Redemption Date Transactions Costs.  Fees
and expenses incurred in connection with the transactions described in this
subsection 4.2 shall not have exceeded $500,000 in the aggregate.


 


4.3                               Conditions to All Loans.


 


The obligation of each
Lender to make its Loans on each Funding Date are subject to the following
further conditions precedent:


 


A.  Administrative Agent shall have received before that Funding Date, in
accordance with the provisions of subsection 2.1B, a duly executed Notice of
Borrowing, in each case signed by a duly authorized Officer of Company.


 


B.  As of that Funding Date:


 


(i)            The representations and warranties contained
herein and in the other Loan Documents shall be true, correct and complete in
all material respects on and as of that Funding Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete in
all material respects on and as of such earlier date; provided, that, if
a representation and warranty is qualified as to materiality, the materiality
qualifier set forth in this subsection 4.3B(i) shall be disregarded with
respect to such representation and warranty for purposes of this condition;


 


(ii)           No event shall have occurred and be
continuing or would result from the consummation of the borrowing contemplated
by such Notice of Borrowing that would constitute an Event of Default or a
Potential Event of Default; and


 


(iii)          After giving effect to the consummation of
the borrowing contemplated by the Notice of Borrowing and the application of
the proceeds thereof, the aggregate amount of Cash and Cash Equivalents of
Company and its Domestic Subsidiaries, excluding Cash and Cash Equivalents
actually applied to a permitted purpose (other than


 


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an Investment in Cash and
Cash Equivalents) on such Funding Date, shall not exceed $40,000,000.


 


4.4                               Conditions to Letters of
Credit.


 


The issuance of any Letter
of Credit hereunder is subject to the following conditions precedent:


 


A.  On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the initial Loans shall have been made.


 


B.  On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Request for Issuance (or a facsimile
copy thereof) in each case signed by a duly authorized Officer of Company and
such other documents or information as the applicable Issuing Lender may
reasonably require in connection with the issuance of such Letter of Credit.


 


C.  On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.3B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.


 


Section 5.              COMPANY’S REPRESENTATIONS
AND WARRANTIES


 


In order to induce Lenders
to enter into this Agreement and to make the Loans, to induce Issuing Lenders
to issue Letters of Credit and to induce Revolving Lenders to purchase
participations therein, Company represents and warrants to each Lender:


 


5.1                               Organization, Powers,
Qualification, Good Standing, Business and Subsidiaries.


 


A.  Organization and Powers. 
Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.  Company has all requisite power and authority
to own and operate its properties, to carry on its business as now conducted
and as proposed to be conducted, to enter into the Loan Documents to which it
is a party and to carry out the transactions contemplated thereby (including,
without limitation, the Recapitalization).


 


B.  Qualification and Good Standing. 
Company is qualified to do business and in good standing in every
jurisdiction wherever necessary to carry out its business and operations,
except in jurisdictions where the failure to be so qualified or in good standing
could not reasonably be expected to result in a Material Adverse Effect.


 


C.  Subsidiaries.  All
of the Subsidiaries of Company and their jurisdictions of organization are
identified in Schedule 5.1 annexed hereto, as said Schedule 5.1
may be supplemented from time to time pursuant to the provisions of subsection
6.1(xiii).  The Capital Stock of (i) each
of the Domestic Subsidiaries of Company identified in Schedule 5.1
annexed


 


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hereto (as so supplemented) is duly authorized, validly issued, fully
paid and nonassessable and (ii) each of the first-tier Material Foreign
Subsidiaries of Company identified in Schedule 5.1 annexed hereto
(as so supplemented) is duly authorized and validly issued.  Each of the Subsidiaries of Company
identified in Schedule 5.1 annexed hereto (as so supplemented) is
duly organized, validly existing and in good standing under the laws of its
respective jurisdiction of organization or formation set forth therein, has all
requisite power and authority to own and operate its properties and to carry on
its business as now conducted and as proposed to be conducted, and is qualified
to do business and in good standing in every jurisdiction wherever necessary to
carry out its business and operations, in each case except where failure to be
so qualified or in good standing or a lack of such power and authority could
not reasonably be expected to result in a Material Adverse Effect.  Schedule 5.1 annexed hereto (as
so supplemented) correctly sets forth the ownership interest of Company and
each of its Subsidiaries in each of the Subsidiaries of Company identified
therein.  As of the Closing Date, (1) the
Material Domestic Subsidiaries of Company consist solely of Clark-Schwebel
Holding Corp. and Hexcel Reinforcements Corp. and (2) the first-tier Material
Foreign Subsidiaries of Company consist solely of Hexcel Holdings Denmark ApS
and Hexcel Holdings (UK) Limited.


 


5.2                               Authorization of Borrowing,
etc.


 


A.  Authorization of Borrowing.  The
execution, delivery and performance of the Loan Documents and the consummation
of the Recapitalization have been duly authorized by all necessary action on
the part of each Loan Party that is a party thereto.


 


B.  No Conflict.  The
execution, delivery and performance by Loan Parties of the Loan Documents to
which they are parties and the consummation of the transactions contemplated by
the Loan Documents (including, without limitation, the Recapitalization) do not
and will not (i) violate any provision of any law or any governmental rule
or regulation applicable to Company or any Loan Party, (ii) violate any
provision of the Organizational Documents of Company or any Loan Party, (iii)
violate any order, judgment or decree of any court or other Government
Authority binding on Company or any Loan Party, (iv) conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation of Company or any Loan Party,
(v) result in or require the creation or imposition of any Lien upon any
of the properties or assets of Company or any Loan Party (other than any Liens
created under any of the Loan Documents in favor of Administrative Agent on
behalf of Lenders) or (vi) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of Company
or any of its Subsidiaries, except for such approvals or consents which will be
obtained on or before the Closing Date and disclosed in writing to Lenders and
except, in the case of (i), (iii) and (iv), to the extent such violation or
conflict could not reasonably be expected to result in a Material Adverse
Effect.


 


C.  Governmental Consents.  The
execution, delivery and performance by Loan Parties of the Loan Documents to
which they are parties and the consummation of the transactions contemplated by
the Loan Documents (including, without limitation, the Recapitalization) do not
and will not require any Governmental Authorization.


 


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D.  Binding Obligation.  Each
of the Loan Documents has been duly executed and delivered by each Loan Party
that is a party thereto and is the legally valid and binding obligation of such
Loan Party, enforceable against such Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws relating to or affecting
creditors’ rights generally or by equitable principles relating to
enforceability (whether considered in a proceeding in equity or at law).


 


5.3                               Financial Condition.


 


Company has heretofore
delivered to Administrative Agent the financial statements and information set
forth in Schedule 5.3.  All such
statements other than pro forma financial statements were prepared in
conformity with GAAP and fairly present, in all material respects, the
financial position (on a consolidated basis) of the entities described in such
financial statements as at the respective dates thereof and the results of
operations and cash flows (on a consolidated basis) of the entities described
therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal
year-end adjustments and the absence of footnotes.  Neither Company nor any of its Subsidiaries
has any Contingent Obligation, contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that, as of the
Closing Date, is not reflected in the foregoing financial statements or the
notes (if any) thereto and, as of any Funding Date subsequent to the Closing
Date, is not reflected in the most recent financial statements delivered to
Lenders pursuant to subsection 6.1 or the notes (if any) thereto and that, in any
such case, is material in relation to the business, operations, properties,
assets or condition (financial or otherwise) of Company or any of its
Subsidiaries taken as a whole.


 


5.4                               No Material Adverse Change;
No Restricted Junior Payments.


 


Since September 30, 2004, no
event or change has occurred that has resulted in or evidences, either in any
case or in the aggregate, a Material Adverse Effect, except for such events or
changes that constitute a Disclosed Matter. 
Neither Company nor any of its Subsidiaries has directly or indirectly
declared, ordered, paid or made, or set apart any sum or property for, any
Restricted Junior Payment or agreed to do so except as permitted by subsection
7.5.


 


5.5                               Title to Properties; Liens;
Real Property; Intellectual Property.


 


A.  Title to Properties; Liens. 
Company and its Subsidiaries have (i) good, sufficient and legal title
to (in the case of fee interests in real property), (ii) valid leasehold
interests in (in the case of leasehold interests in real or personal property),
(iii) valid license rights in (in the case of license rights in Intellectual
Property) or (iv) good title to (in the case of all other personal property),
all of their respective properties and assets reflected in the financial
statements referred to in subsection 5.3 or in the most recent financial
statements delivered pursuant to subsection 6.1, in each case except for
assets disposed of since the date of such financial statements in the ordinary
course of business or as otherwise permitted under subsection 7.7, and
except for such irregularities or deficiencies in title which individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect or materially diminish the value


 


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of any material portion of
the Collateral.  Except as permitted by
this Agreement, all such properties and assets are free and clear of Liens.


 


B.  Real Property.  As of
the Closing Date, Schedule 5.5B annexed hereto contains a true, accurate
and complete list of (i) all fee interests in any Real Property Assets and (ii)
all leases, subleases or assignments of leases (together with all amendments,
modifications, supplements, renewals or extensions of any thereof), if any,
affecting each such Real Property Asset, regardless of whether a Loan Party is
the landlord or tenant (whether directly or as an assignee or successor in
interest) under such lease, sublease or assignment.  As of the Closing Date, except as specified
in Schedule 5.5B annexed hereto, each agreement listed in clause
(ii) of the immediately preceding sentence is in full force and effect and
Company does not have knowledge of any default that has occurred and is
continuing thereunder, and each such agreement constitutes the legally valid
and binding obligation of each applicable Loan Party, enforceable against such
Loan Party in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other laws relating to or affecting creditors’ rights generally or by equitable
principles (whether considered in a proceeding in equity or at law).


 


C.  Intellectual Property.  As
of the Closing Date, Company and its Subsidiaries own or have the right to use,
all Intellectual Property used in the conduct of their business, except where
the failure to own or have such right to use in the aggregate could not
reasonably be expected to result in a Material Adverse Effect.  To the knowledge of Company or any of its Subsidiaries,
no claim has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does Company know of any
valid basis for any such claim, except for such claims that in the aggregate
could not reasonably be expected to result in a Material Adverse Effect.  The use of such Intellectual Property by
Company and its Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that, in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.  All United States registrations of and United
States applications for material Intellectual Property owned by Company or any
of the Subsidiary Guarantors, and all material license agreements under which
Company or any of the Subsidiary Guarantors license United States Intellectual
Property of third parties material to the conduct of their business, in each
case, on the Closing Date are described on Schedule 5.5C annexed
hereto.


 


5.6                               Litigation; Adverse Facts.


 


There are no Proceedings
(whether or not purportedly on behalf of Company or any of its Subsidiaries) at
law or in equity, or before or by any court or other Government Authority
(including any Environmental Claims) that are pending or, to the knowledge of
Company, threatened against or affecting Company or any of its Subsidiaries or
any property of Company or any of its Subsidiaries and that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect, except such Proceedings that constitute a Disclosed Matter.  Neither Company nor any of its Subsidiaries
(i) is in violation of any applicable laws (including Environmental Laws)
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect, or (ii) is subject to or in default


 


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with respect to any final judgments, writs, injunctions, decrees, rules
or regulations of any court or other Government Authority that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect, except, in each case, for such violations or defaults that constitute a
Disclosed Matter.


 


5.7                               Payment of Taxes.


 


Except to the extent
permitted by subsection 6.3, all tax returns and reports of Company and its
Subsidiaries required to be filed by any of them have been timely filed, and
all taxes shown on such tax returns to be due and payable and all assessments,
fees and other governmental charges upon Company and its Subsidiaries and upon
their respective properties, assets, income, businesses and franchises that are
due and payable have been paid when due and payable except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. 
Company knows of no material proposed tax assessment against Company or
any of its Subsidiaries that is not being actively contested by Company or such
Subsidiary in good faith and by appropriate proceedings; provided that
such reserves or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor.


 


5.8                               Performance of Agreements;
Material Contracts.


 


Neither Company nor any of
its Subsidiaries is in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any of its
Contractual Obligations, and no condition exists that, with the giving of
notice or the lapse of time or both, would constitute such a default, except
(i) where the consequences, direct or indirect, of such default or defaults, if
any, could not reasonably be expected to result in a Material Adverse Effect or
(ii) such defaults that constitute a Disclosed Matter.


 


5.9                               Governmental Regulation.


 


Neither Company nor any of
its Subsidiaries is a “holding company,” or a “subsidiary company” of a
“holding company,” or an “affiliate” of a “holding company,” as such terms are
defined in the Public Utility Holding Company Act of 1935, nor is it an
“investment company,” or an “affiliated company” or a “principal underwriter”
of an “investment company” as such terms are defined in the Investment Company
Act of 1940.


 


5.10                        Securities Activities.


 


A.  Neither Company nor any of its Subsidiaries is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock.


 


B.  No part of the proceeds of the Loans made to the Company will be used
to purchase or carry any such margin stock or to extend credit to others for
the purpose of purchasing or carrying any such margin stock or for any purpose
that violates, or is inconsistent with, the provisions of Regulation T, U or X
of said Board of Governors.


 


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5.11                        Employee Benefit Plans.


 


A.  Company, each of its Subsidiaries and each of their respective ERISA
Affiliates are in compliance with all applicable provisions and requirements of
ERISA and the regulations and published interpretations thereunder with respect
to each Employee Benefit Plan that is not a Multiemployer Plan, and have
performed all their obligations under each Employee Benefit Plan.  Each Employee Benefit Plan that is intended
to qualify under Section 401(a) of the Internal Revenue Code has been
determined by the Internal Revenue Service to be so qualified in form, as
evidenced by a current determination letter, and Company and each of its
Subsidiaries and ERISA Affiliates are not aware of any facts pertaining to the
operation of any such Employee Benefit Plan that would be expected to result in
disqualification of any such plan.


 


B.  No ERISA Event has occurred or is reasonably expected to occur except
for such ERISA Events that (i) could not reasonably be expected to result in a
Material Adverse Effect or (ii) constitute a Disclosed Matter.


 


C.  Except to the extent required under Section 4980B of the Internal
Revenue Code or except as set forth in Schedule 5.11 annexed hereto, no
Employee Benefit Plan provides health or welfare benefits (through the purchase
of insurance or otherwise) for any retired or former employee of Company or any
of its Domestic Subsidiaries, other than Employee Benefit Plans that have been
taken into account in developing the FAS 106 cost figure disclosed to Lenders.


 


D.  As of the most recent annual valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), would not, were the Company to be required to
immediately fund such unfunded benefit liabilities on a plan termination basis,
have a Material Adverse Effect.


 


E.  As of the most recent annual valuation date for each Multiemployer Plan
for which the actuarial report is available, the potential liability of Company,
its Subsidiaries and their respective ERISA Affiliates for a complete
withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of
ERISA), when aggregated with such potential liability for a complete withdrawal
from all Multiemployer Plans, based on information available pursuant to
Section 4221(e) of ERISA, would not, were the Company to be required to
immediately fund such liabilities, have a Material Adverse Effect.


 


5.12                        Certain Fees.


 


Except as otherwise
disclosed in writing to Administrative Agent with respect to any fees payable
in connection with the Recapitalization, no broker’s or finder’s fee or
commission will be payable with respect to this Agreement or any of the
transactions contemplated hereby, and Company hereby indemnifies Lenders
against, and agrees that it will hold Lenders harmless from, any claim, demand
or liability for any such broker’s or finder’s fees alleged to have been
incurred in connection herewith or therewith and any expenses (including


 


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reasonable fees, expenses and disbursements of counsel) arising in
connection with any such claim, demand or liability.


 


5.13                        Environmental Protection.


 


(i)            neither Company nor any of its Subsidiaries
nor any of their respective Facilities or operations are subject to any
outstanding written order, consent decree or settlement agreement with any
Person relating to (a) any Environmental Law, (b) any Environmental
Claim, or (c) any Hazardous Materials Activity that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect,
except such orders, decrees or settlement agreements that constitute a
Disclosed Matter;


 


(ii)           neither Company nor any of its Subsidiaries
has received any letter or request for information under Section 104
of the Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. § 9604) or any comparable state law, except for letters or
requests that constitute a Disclosed Matter, or that have been fully resolved
or are not likely to result in a Material Adverse Effect;


 


(iii)          there are and, to Company’s knowledge, have
been no conditions, occurrences, or Hazardous Materials Activities that could
reasonably be expected to form the basis of an Environmental Claim against
Company or any of its Subsidiaries that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect, except for
Environmental Claims that constitute a Disclosed Matter;


 


(iv)          Company has an environmental management
system for its and each of its Subsidiaries’ operations that demonstrates a
commitment to environmental compliance and includes procedures for (a)
preparing and updating written compliance manuals covering pertinent regulatory
areas, (b) tracking changes in applicable Environmental Laws and modifying
operations to comply with new requirements thereunder, (c) training employees
to comply with applicable environmental requirements and updating such training
as necessary and (d) performing regular internal compliance audits of each
Facility and ensuring correction of any incidents of non-compliance detected by
means of such audits;


 


(v)           compliance with all requirements pursuant to
or under Environmental Laws would not, individually or in the aggregate, be
reasonably expected to result in a Material Adverse Effect, except for such
compliance with Environmental Laws that constitute a Disclosed Matter.


 


5.14                        Solvency.


 


Each Loan Party is and, upon
the incurrence of any Obligations by such Loan Party on any date on which this
representation is made, will be, Solvent.


 


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5.15                        Matters Relating to
Collateral; Absence of Third-Party Filings.


 


Except such as may have been
filed in favor of Administrative Agent as contemplated by the Collateral
Documents and to evidence permitted lease obligations and other Liens permitted
pursuant to subsection 7.2, (i) no effective UCC financing statement, fixture
filing or other instrument similar in effect covering all or any part of the
Collateral is on file in any filing or recording office and (ii) no effective
filing covering all or any part of the IP Collateral is on file in any IP
Filing Office.


 


5.16                        Disclosure.


 


No representation or
warranty of Company or any of its Subsidiaries contained in the Confidential
Information Memorandum or in any Loan Document or in any other document,
certificate or written statement furnished to Lenders by or on behalf of
Company or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact (known to Company, in the case of any
document not furnished by it) necessary in order to make the statements contained
herein or therein, taken as a whole, not misleading in light of the
circumstances in which the same were made. 
Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized by Lenders that
such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ from the projected results.  There
are no facts known to Company (other than effects resulting from changes of a
general economic nature or in legal standards or regulatory conditions) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect and that have not been disclosed herein, in the Loan
Documents or in the documents referred to in the definition of “Disclosed
Matters”.


 


5.17                        Credit Agreement
Classification; Subordinated Indebtedness.


 


This Agreement and the credit
facilities created hereunder constitute the “Credit Agreement” under and as
such term is defined in the New Senior Subordinated Notes Indenture and is a
“Debt Instrument” under and as such terms are defined in the Preferred Stock
Certificates of Designation.  As of the
Closing Date and after giving effect to the initial Loans hereunder, the
Obligations constitute senior indebtedness that is entitled to the benefits of
the subordination provisions, if any, of all Indebtedness of Company and its
Subsidiaries.


 


5.18                        Foreign Assets Control
Regulations, etc.


 


To the knowledge of Company,
neither the making of the Loans to, or issuance of Letters of Credit on behalf
of, Company nor its use of the proceeds thereof will violate the Trading with
the Enemy Act, as amended, or any of the foreign assets control regulations of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto.  Without limiting the foregoing, neither
Company nor any of its Subsidiaries and, to the knowledge of Company, none of
its Affiliates (a) is or will become a Person whose property or interests
in property are blocked pursuant to


 


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Section 1 of Executive Order 13224 of September 23, 2001 Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism (66 Fed. 
Reg.  49079 (2001)) or (b) engages
or will engage in any dealings or transactions, or be otherwise associated,
with any such Person.  Company and its
Subsidiaries and, to the knowledge of Company, its Affiliates are in
compliance, in all material respects, with the Uniting And Strengthening
America By Providing Appropriate Tools Required To Intercept And Obstruct
Terrorism (USA Patriot Act of 2001).


 


Section 6.              COMPANY’S AFFIRMATIVE
COVENANTS


 


Company covenants and agrees
that, so long as any of the Commitments hereunder shall remain in effect and
until payment in full of all of the Loans and other Obligations (other than
Unasserted Obligations) and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6.


 


6.1                               Financial Statements and
Other Reports.


 


Company will maintain, and
cause each of its Subsidiaries to maintain, a system of accounting established
and administered in accordance with sound business practices to permit preparation
of financial statements in conformity with GAAP.  Company will deliver to Administrative Agent
for the benefit of Lenders:


 


(i)            Events of Default, etc.: 
promptly upon any officer of Company obtaining knowledge (a) of any
condition or event that constitutes an Event of Default or Potential Event of
Default, or becoming aware that any Lender has given any notice (other than to
Administrative Agent) or taken any other action with respect to a claimed Event
of Default or Potential Event of Default or (b) of the occurrence of any event
or change that has caused or evidences, either in any case or in the aggregate,
a Material Adverse Effect, an Officer’s Certificate specifying the nature and
period of existence of such condition, event or change, or specifying the
notice given or action taken by any such Person and the nature of such claimed
Event of Default, Potential Event of Default, event or condition, and what
action Company has taken, is taking and proposes to take with respect thereto;


 


(ii)           Quarterly Financials:  as
soon as available and in any event within forty-five (45) days after the end of
each of the first three Fiscal Quarters of each Fiscal Year, (a) copies of the
unaudited condensed consolidated balance sheet of Company and its Subsidiaries
as at the end of such Fiscal Quarter and the related unaudited condensed
consolidated statements of income and cash flows of Company and its
Subsidiaries for such Fiscal Quarter (with respect to condensed consolidated
statements of income) and for the period from the beginning of the then current
Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of the
previous Fiscal Year (except for the unaudited condensed consolidated balance
sheet, which will be compared to the condensed consolidated balance sheet for
the prior Fiscal Year-end), all in reasonable detail and certified by the


 


89





















 


chief financial officer of
Company that they fairly present, in all material respects, the financial
condition of Company and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods indicated,
prepared in accordance with GAAP, and (b) a narrative report describing
the operations of Company and its Subsidiaries which report meets the
requirements of Item 303 of Regulation S-K promulgated under the Securities Act
for such Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter;


 


(iii)          Year-End Financials:  as
soon as available and in any event within seventy five (75) days after the end
of each Fiscal Year, (a) the consolidated balance sheet of Company and its
Subsidiaries as at the end of such Fiscal Year and the related consolidated
statements of income and cash flows of Company and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the corresponding
figures for the previous Fiscal Year, all in reasonable detail and certified by
the chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its Subsidiaries as
at the dates indicated and the results of their operations and their cash flows
for the periods indicated, (b) a narrative report describing the
operations of Company and its Subsidiaries which report meets the requirements
of Item 303 of Regulation S-K promulgated under the Securities Act for such
Fiscal Year, and (c) in the case of such consolidated financial
statements, a report thereon of Pricewaterhouse Coopers LLP or other
independent registered public accounting firm of recognized national standing
selected by Company, which report shall be unqualified, shall express no
doubts, assumptions or qualifications concerning the ability of Company and its
Subsidiaries to continue as a going concern, and shall state that such
consolidated financial statements fairly present, in all material respects, the
consolidated financial position of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years (except as otherwise disclosed in such financial statements) and
that the examination by such accountants in connection with such consolidated
financial statements has been made in accordance with standards of the Public
Company Accounting Oversight Board (United States);


 


(iv)          Compliance Certificates: 
together with each delivery of financial statements pursuant to
subdivisions (ii) and (iii) above, (a) an Officer’s Certificate of Company
stating that the signers have reviewed the terms of this Agreement and have
made, or caused to be made under their supervision, a review in reasonable
detail of the transactions and condition of Company and its Subsidiaries during
the accounting period covered by such financial statements and that such review
has not disclosed the existence during or at the end of such accounting period,
and that the signers do not have knowledge of the existence as at the date of
such Officer’s Certificate, of any condition or event that constitutes an Event
of Default or Potential Event of Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence thereof and
what action Company has taken, is taking and proposes to take with respect
thereto; and (b) a Compliance Certificate demonstrating in reasonable detail
compliance during and at the end of the applicable accounting periods with the
restrictions contained in


 


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Section 7, in each case to
the extent compliance with such restrictions is required to be tested at the end
of the applicable accounting period;


 


(v)           Reconciliation Statements:  if,
as a result of any change in accounting principles and policies from those used
in the preparation of the audited financial statements referred to in
subsection 5.3, the consolidated financial statements of Company and its
Subsidiaries delivered pursuant to subdivisions (ii), (iii) or (xii) of this
subsection 6.1 will differ in any material respect from the consolidated
financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been
made, then, if requested (and to the extent requested) by Administrative Agent
in the exercise of its reasonable credit judgment, (a) together with the
first delivery of financial statements pursuant to subdivision (ii), (iii) or
(xii) of this subsection 6.1 following such change, consolidated financial
statements (or the relevant portions thereof ) of Company and its Subsidiaries
for (y) the current Fiscal Year to the effective date of such change and
(z) the two full Fiscal Years immediately preceding the Fiscal Year in
which such change is made, in each case prepared on a pro forma basis as if
such change had been in effect during such periods, and (b) together with
each delivery of financial statements pursuant to subdivision (ii), (iii) or
(xii) of this subsection 6.1 following such change, if required pursuant to
subsection 1.2, a written statement of the chief accounting officer or chief
financial officer of Company setting forth the differences (including any
differences that would affect any calculations relating to the financial
covenants set forth in subsection 7.6) which would have resulted if such
financial statements had been prepared without giving effect to such change;


 


(vi)          Accountants’ Certification: 
together with each delivery of consolidated financial statements
pursuant to subdivision (iii) above, a written statement by the independent
registered public accounting firm giving the report thereon stating whether in
connection with their audit, nothing came to their attention that caused them
to believe that the Company failed to comply with the terms, covenants,
provisions or conditions of the specific terms of the Agreement as they relate
to accounting matters that will be subject to auditing procedures during the
course of the audit;


 


(vii)         Accountants’ Reports: 
promptly upon receipt thereof (unless restricted by applicable
professional standards), copies of all material reports submitted to Company by
the independent registered public accounting firm in connection with each
annual, interim or special audit of the financial statements of Company and its
Subsidiaries made by such independent registered public accounting firm,
including any comment letter submitted by such independent registered public
accounting firm to management in connection with their annual audit;


 


(viii)        SEC Filings and Press Releases: 
promptly upon their becoming available, copies of (a) all financial
statements, reports, notices and proxy statements sent or made available
generally by Company to its security holders or by any Subsidiary of Company to
its security holders other than Company or another Subsidiary of Company,
(b) all regular and periodic reports and all registration statements
(other than on Form S-8 or a


 


91





















 


similar form) and
prospectuses, if any, filed by Company or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or any governmental
or private regulatory authority, and (c) all press releases and other
statements made available generally by Company or any of its Subsidiaries to
the public concerning material developments in the business of Company or any
of its Subsidiaries;


 


(ix)           Litigation or Other Proceedings: 
within fifteen (15) days of any Officer of Company obtaining knowledge
of (1) the institution of, or non-frivolous written threat of, any Proceeding
against or affecting Company or any of its Subsidiaries or any property of
Company or any of its Subsidiaries not previously disclosed in writing by
Company to Administrative Agent or (2) any material development in any
Proceeding that, in any case:


 


(x)            if adversely determined, has a reasonable
possibility after giving effect to the coverage and policy limits of insurance
policies issued to Company and its Subsidiaries of giving rise to a Material
Adverse Effect; or


 


(y)           seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the
transactions contemplated hereby;


 


written notice thereof
together with such other information as may be reasonably available to Company
to enable Lenders and their counsel to evaluate such matters;


 


(x)            ERISA Events: 
promptly upon an Officer becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event, a written notice specifying the
nature thereof, what action Company, any of its Subsidiaries or any of their
respective ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect thereto;


 


(xi)           ERISA Notices:  with
reasonable promptness, copies of (a) all notices received by Company, any of
its Subsidiaries or any of their respective ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (b) copies of such
other documents or governmental reports or filings relating to any Employee
Benefit Plan as Administrative Agent shall reasonably request;


 


(xii)          Financial Plans:  as
soon as practicable and in any event no later than 30 days after the beginning
of each Fiscal Year, projections of Company and its Subsidiaries prepared on a
monthly basis for such Fiscal Year and the two immediately succeeding Fiscal
Years, in substantially the same form and substance as the projections
delivered to Administrative Agent prior to the Closing Date;


 


(xiii)         New Subsidiaries: 
promptly upon any Person becoming a Subsidiary of Company, a written
notice setting forth with respect to such Person (a) the date on which


 


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such Person became a
Subsidiary of Company and (b) all of the data required to be set forth in Schedule
5.1 annexed hereto with respect to all Subsidiaries of Company (it being
understood that such written notice shall be deemed to supplement Schedule
5.1 annexed hereto for all purposes of this Agreement); and


 


(xiv)        Other Information:  with
reasonable promptness, such other information with respect to the operation,
business affairs and financial condition of Company or any of its Subsidiaries
as from time to time may be reasonably requested by any Lender acting through
Administrative Agent.


 


6.2                               Existence, etc.


 


Except as permitted under
subsection 7.7, Company will, and will cause each of its Subsidiaries to, at
all times preserve and keep in full force and effect its existence in the
jurisdiction of organization specified on Schedule 5.1 and all rights
and franchises material to its business; provided, however that
neither Company nor any of its Subsidiaries shall be required to preserve any
such right or franchise if the Company or such Subsidiary shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of Company or such Subsidiary, as the case may be, and that the loss thereof
would not in the aggregate have a Material Adverse Effect.


 


6.3                               Payment of Taxes and Claims;
Tax.


 


A.  Company will, and will cause each of its Subsidiaries to, pay all
material taxes, assessments and other material governmental charges imposed
upon it or any of its properties or assets or in respect of any of its income,
businesses or franchises before any penalty accrues thereon, and all claims
(including claims for labor, services, materials and supplies) for sums that
have become due and payable and that by law have or may become a Lien upon any
of its properties or assets, prior to the time when any penalty or fine shall
be incurred with respect thereto; provided that no such tax, assessment,
charge or claim need be paid if it is being contested in good faith by
appropriate proceedings, so long as (i) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor and (ii) in the case of a tax, assessment, charge or claim which
has or may become a Lien against any of the Collateral, such proceedings
conclusively operate to stay the sale of any portion of the Collateral to satisfy
such charge or claim.


 


B.  Company will not, nor will it permit any of its Subsidiaries to, file
or consent to the filing of any consolidated income tax return with any Person
(other than Company or any of its Subsidiaries).


 


6.4                               Maintenance of Properties;
Insurance; Application of Net Insurance/ Condemnation Proceeds.


 


A.  Maintenance of Properties. 
Company will, and will cause each of its Subsidiaries to, maintain or
cause to be maintained in good repair, working order and condition, ordinary
wear and tear excepted, all material properties used or useful in the business
of Company


 


93





















 


and its Subsidiaries and from time to time will make or cause to be
made all appropriate repairs, renewals and replacements thereof all as in the
judgment of Company or such Subsidiary may be necessary so that the business
carried on in connection therewith may be properly conducted at all times;
provided that nothing in this subsection 6.4A shall prevent (i) Company
or any of its Subsidiaries from discontinuing the operation and maintenance of
any of its properties if such discontinuance is, in the judgment of Company or
such Subsidiary, desirable in the conduct of its business and that do not in
the aggregate have a Material Adverse Effect or (ii) any Company or any of
its Subsidiaries from consummating any transaction permitted by this Agreement.


 


B.  Insurance. 
Company will maintain or cause to be maintained, with financially sound
and reputable insurers, such public liability insurance, third party property
damage insurance, business interruption insurance and casualty insurance with
respect to liabilities, losses or damage in respect of the assets, properties
and businesses of Company and its Subsidiaries as may customarily be carried or
maintained under similar circumstances by Persons of established reputation
engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on
such terms and conditions as shall be customary for such Persons.  Without limiting the generality of the
foregoing, Company will maintain or cause to be maintained (i) flood insurance
with respect to each Flood Hazard Property that is located in a community that
participates in the National Flood Insurance Program, in each case in
compliance with any applicable regulations of the Board of Governors of the
Federal Reserve System, and (ii) replacement value casualty insurance on the
Collateral under such policies of insurance, with such insurance companies, in
such amounts, with such deductibles, and covering such risks as are at all
times carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses.  Each such policy of insurance shall
(a) name Administrative Agent for the benefit of Lenders as an additional
insured thereunder as its interests may appear and (b) in the case of each
casualty insurance policy, contain a loss payable clause or endorsement,
satisfactory in form and substance to Administrative Agent, that names
Administrative Agent for the benefit of Lenders as the loss payee thereunder
for any covered loss in excess of $5,000,000 and provides for at least 30 days
prior written notice to Administrative Agent of any modification or
cancellation of such policy.


 


C.  Application of Net Insurance/Condemnation
Proceeds.  Upon receipt by Company or any Subsidiary
Guarantor or by Administrative Agent as loss payee of any Net
Insurance/Condemnation Proceeds:


 


(i)            if the aggregate amount of Net
Insurance/Condemnation Proceeds received (and reasonably expected to be
received) in respect of any single occurrence does not exceed $2,500,000, so
long as no Event of Default or Potential Event of Default shall have occurred
and be continuing, Company or such Subsidiary may use such proceeds for general
corporate purposes and Administrative Agent, if it received such Net
Insurance/Condemnation Proceeds, shall deliver such proceeds to Company;


 


(ii)           if the aggregate amount of Net
Insurance/Condemnation Proceeds received (and reasonably expected to be
received) in respect of any single occurrence exceeds $2,500,000, so long as no
Event of Default or Potential Event of Default shall have occurred and be
continuing, Company or such Subsidiary shall use such proceeds to


 


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repair, restore or replace
the assets of Company or such Subsidiary in respect of which such Net
Insurance/Condemnation Proceeds were received or to otherwise invest such
proceeds in long-term productive assets of the general type used in the
business of Company and its Subsidiaries, and Administrative Agent, if it
received such Net Insurance/Condemnation Proceeds, shall deliver such proceeds
to Company; provided, however, that pending such investment, repair,
restoration or replacement, such portion of the Net Insurance/Condemnation
Proceeds not so used by Company or such Subsidiary shall be applied by Company
(or Administrative Agent, if it received such proceeds), to prepay outstanding
Revolving Loans (without a reduction of the Revolving Loan Commitment Amount)
to the full extent thereof (it being understood that no Letter of Credit shall
be cash collateralized); and


 


(iii)          if (a) an Event of Default or Potential Event
of Default shall have occurred and be continuing as referred to in clause (i)
or (ii) above or (b) in the event that such investment, repair, restoration or
replacement referred to in clause (ii) above has not been completed within
365 days after the receipt by Company and/or Administrative Agent of such
Net Insurance/Condemnation Proceeds then, in each case, Administrative Agent,
if it holds such Net Insurance/Condemnation Proceeds, is hereby authorized by
Company to, and Company, if it or one of its Subsidiaries holds such Net
Insurance/Condemnation Proceeds, shall, apply such Net Insurance/Condemnation
Proceeds to prepay the Loans (and/or the Revolving Loan Commitment Amount shall
be reduced) as provided in subsection 2.4B and subsection 2.4D.


 


6.5                               Inspection Rights; Lender
Meeting.


 


A.  Inspection Rights.  Subject to requirements of applicable law concerning classified
information and to the rights of tenants or licensees of such property, Company
shall, and shall cause each of its Subsidiaries to, permit Lenders, through
Administrative Agent or its designated representatives or, after the occurrence
and during the continuance of an Event of Default, any authorized
representatives designated by any Lender to visit and inspect any of the properties
of Company or of any of its Subsidiaries, to inspect, copy and take extracts
from its and their financial and accounting records (provided that if any
information contained therein is identified as confidential to the Person
making such visit and inspection, then such information shall be handled in
accordance with subsection 10.19 hereof), and to discuss its and their
affairs, finances and accounts with its and their officers and independent
public accountants (provided that Company may, if it so chooses, be present at
or participate in any such discussion), all upon reasonable notice and at such
reasonable times during normal business hours and as often as may reasonably be
requested or at any time or from time to time following the occurrence and during
the continuation of an Event of Default.


 


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


 


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6.6          Compliance with Laws, etc.


 


Company shall comply, and
shall cause each of its Subsidiaries to comply, with the requirements of all
applicable laws, rules, regulations and orders of any Government Authority
(including all Environmental Laws), except where noncompliance could reasonably
be expected to result in a Material Adverse Effect.


 


6.7          Environmental Matters.


 


A.  Environmental Disclosure. 
Company will deliver to Administrative Agent and Lenders:


 


(i)            Environmental Audits and Reports.  As
soon as practicable following receipt thereof, copies of all material
environmental audits, investigations, analyses and reports of any kind or
character, whether prepared by personnel of Company or any of its Subsidiaries
or by independent consultants, Government Authorities or any other Persons,
with respect to significant environmental matters at any Facility that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect or with respect to any Environmental Claims that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect;


 


(ii)           Notice of Certain Releases, Remedial Actions,
Etc.  Promptly upon the occurrence thereof, written
notice describing in reasonable detail (a) any remedial action taken by
Company or any other Person in response to (1) any Hazardous Materials
Activities the existence of which could reasonably be expected to result in one
or more Environmental Claims having, individually or in the aggregate, a Material
Adverse Effect, or (2) any Environmental Claims that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect, and (b) Company’s discovery of any occurrence or condition on any
real property adjoining or in the vicinity of any Facility that could cause
such Facility or any part thereof to be subject to any material restrictions on
the ownership, occupancy, transferability or use thereof under any
Environmental Laws that could reasonably be expected to have a Material Adverse
Effect.


 


(iii)          Written Communications Regarding
Environmental Claims, Releases, Etc.  As soon as practicable
following the sending or receipt thereof by Company or any of its Subsidiaries
regarding any matter that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect, a copy of any and all
written communications with respect to (a) any Environmental Claims,
(b) any Release required to be reported to any Government Authority, and (c)
any request for information from any Government Authority that suggests such
Government Authority is investigating whether Company or any of its
Subsidiaries may be potentially responsible for any Hazardous Materials
Activity.


 


(iv)          Notice of Certain Proposed Actions Having
Environmental Impact.  Prompt written notice describing in
reasonable detail (a) any proposed acquisition of


 


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stock, assets, or property
by Company or any of its Subsidiaries that could reasonably be expected to (1)
expose Company or any of its Subsidiaries to, or result in, Environmental
Claims that could reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect or (2) affect the ability of Company or any
of its Subsidiaries to maintain in full force and effect all material
Governmental Authorizations required under any Environmental Laws for their
respective operations of which the failure to maintain could reasonably be
expected to result in, individually or in the aggregate, a Material Adverse
Effect and (b) any proposed action to be taken by Company or any of its
Subsidiaries to modify current operations in a manner that could reasonably be
expected to subject Company or any of its Subsidiaries to any additional
obligations or requirements under any Environmental Laws that could reasonably
be expected to result in, individually or in the aggregate, a Material Adverse
Effect.


 


B.  Company’s Actions Regarding Hazardous
Materials Activities, Environmental Claims and Violations of Environmental
Laws.


 


Company shall as promptly as
practicable under the circumstances take, and shall cause each of its
Subsidiaries promptly to take, any and all actions necessary to (i) cure any
violation of applicable Environmental Laws by Company or its Subsidiaries that
could reasonably be expected to result in, individually or in the aggregate, a
Material Adverse Effect and (ii) make an appropriate response to any
Environmental Claim against Company or any of its Subsidiaries and discharge
any obligations it may have to any Person thereunder where failure to do so
could reasonably be expected to result in, individually or in the aggregate, a
Material Adverse Effect; provided, that nothing in this subsection shall
preclude Company from (x) contesting in good faith such alleged violations
of applicable Environmental Laws or (y) asserting reasonable defenses to
such Environmental Claims.


 


C.  Environmental Review and Investigation.


 


Company agrees that
Administrative Agent may, from time to time and in its reasonable discretion,
if an Event of Default has occurred and is continuing, conduct its own
investigation of any Facility; provided that, in the case of any
Facility no longer owned, leased, operated or used by Company or any of its
Subsidiaries, Company shall only be obligated to use commercially reasonable
efforts to obtain permission for Administrative Agent’s professional consultant
to conduct an investigation of such Facility. 
For purposes of conducting such a review and/or investigation, Company
hereby grants to Administrative Agent and its agents, employees, consultants
and contractors the right to enter into or onto any Facilities currently owned,
leased, operated or used by Company or any of its Subsidiaries and to perform
such tests on such property (including taking samples of soil, groundwater and
suspected asbestos-containing materials) as are reasonably necessary in
connection therewith.  Any such
investigation of any Facility shall be conducted, unless otherwise agreed to by
Company and Administrative Agent, during normal business hours and, to the
extent reasonably practicable, shall be conducted so as not to interfere with
the ongoing operations at such Facility or to cause any damage or loss to any
property at such Facility.  Company and
Administrative Agent hereby acknowledge and agree that any report of any
investigation conducted at the request of Administrative Agent pursuant to this
subsection 6.7C will be obtained and shall be used by


 


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Administrative Agent and
Lenders for the purposes of Lenders’ internal credit decisions, to monitor and
police the Loans and to protect Lenders’ security interests, if any, created by
the Loan Documents.  Administrative Agent
agrees to deliver a copy of any such report to Company with the understanding
that Company acknowledges and agrees that (x) it will indemnify and hold
harmless Administrative Agent and each Lender from any costs, losses or
liabilities relating to Company’s use of or reliance on such report,
(y) neither Administrative Agent nor any Lender makes any representation
or warranty with respect to such report, and (z) by delivering such report
to Company, neither Administrative Agent nor any Lender is requiring or recommending
the implementation of any suggestions or recommendations contained in such
report.


 


6.8          Execution of Subsidiary
Guaranty and Personal Property Collateral Documents After
the Closing Date.


 


A.  Execution of Subsidiary Guaranty and Personal
Property Collateral Documents.  In the event that any
Subsidiary of Company existing on the Closing Date that has not previously
executed the Subsidiary Guaranty hereafter becomes a Material Domestic
Subsidiary, or in the event that any Person becomes a Material Domestic
Subsidiary of Company after the date hereof, and, in each case, such Subsidiary
is not prohibited by applicable law or, solely with respect to (i) a Person
that becomes a Subsidiary of the Company after the Closing Date pursuant to (a)
a Permitted Acquisition or (b) an Investment in a Joint Venture (provided that
such Investment is permitted pursuant to subsection 7.3 hereof) or (ii)
Subsidiaries of the Company on the Closing Date that are not Material
Subsidiaries, legally valid contractual restrictions (that, in the case of
(i)(a) above, existed prior to the date of such Permitted Acquisition and were
not created in anticipation of such acquisition or, in the case of (ii) above,
existed on the Closing Date) from guaranteeing or providing security for the
Obligations, Company will promptly notify Administrative Agent of that fact and
cause such Material Domestic Subsidiary to execute and deliver to
Administrative Agent a counterpart of the Subsidiary Guaranty and the Security
Agreement and to take all such further actions and execute all such further
documents and instruments (including actions, documents and instruments
comparable to those described in subsection 4.1K) as may be necessary or, in
the reasonable opinion of Administrative Agent, desirable to create in favor of
Administrative Agent, for the benefit of Lenders, a valid and perfected First
Priority Lien on all of the personal and mixed property assets of such Material
Domestic Subsidiary described in the applicable forms of Collateral Documents.  In addition, as provided in the Security
Agreement, Company shall, or shall cause the Subsidiary that owns the Capital
Stock of such Material Domestic Subsidiary (provided that the pledge of the
Capital Stock of such Subsidiary is not prohibited by applicable law or, solely
with respect to (i) a Person that becomes a Subsidiary of the Company after the
Closing Date pursuant to (a) a Permitted Acquisition or (b) an Investment in a
Joint Venture (provided that such Investment is permitted pursuant to
subsection 7.3 hereof) or (ii) Subsidiaries of the Company on the Closing Date
that are not Material Subsidiaries, legally valid contractual restrictions
(that, in the case of (i)(a) above, existed prior to the date of such Permitted
Acquisition and were not created in anticipation of such acquisition or, in the
case of (ii) above, existed on the Closing Date) to, execute and deliver to
Administrative Agent a supplement to the Security Agreement and to deliver to
Administrative Agent all certificates representing such Capital Stock of such
Material Domestic Subsidiary (or, in the case of a Domestic Foreign Holding
Company, 65% of the Capital Stock of such Domestic


 


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Foreign Holding Company),
accompanied by irrevocable undated stock powers, duly endorsed in blank.  In addition to the foregoing, if as of the
end of any Fiscal Quarter Company and the Subsidiary Guarantors shall fail to
own at least 90% of the Total Domestic Assets, Company shall cause one or more
of its Domestic Subsidiaries to each execute and deliver a counterpart of the
Subsidiary Guaranty and become a Subsidiary Guarantor hereunder and otherwise
comply with the provisions of this subsection 6.8 such that, following the date
upon which such Subsidiaries become Subsidiary Guarantors, Company and the
Subsidiary Guarantors shall own at least 90% of the Total Domestic Assets.  For the purposes of the foregoing sentence,
“Total Domestic Assets” means, as at any date of determination, the total consolidated
balance sheet assets (other than long-term intercompany note receivables) of
Company and its Domestic Subsidiaries.


 


B.  Foreign Subsidiaries.  In the event that any Person becomes a Material Foreign Subsidiary of
Company after the date hereof, and such Material Foreign Subsidiary is directly
owned by Company or a Subsidiary Guarantor or a Person obligated to become a
Subsidiary Guarantor hereunder (provided that the pledge of the Capital Stock
of such Subsidiary is not prohibited by applicable law or, solely with respect
to (i) a Person that becomes a Subsidiary of the Company after the Closing Date
pursuant to (a) a Permitted Acquisition or (b) an Investment in a Joint Venture
(provided that such Investment is permitted pursuant to subsection 7.3 hereof)
or (ii) Subsidiaries of the Company on the Closing Date that are not Material
Subsidiaries, legally valid contractual restrictions (that, in the case of
(i)(a) above, existed prior to the date of such Permitted Acquisition and were
not created in anticipation of such acquisition or, in the case of (ii) above,
existed on the Closing Date)), Company will promptly notify Administrative
Agent of that fact and, as provided in the Security Agreement, Company shall,
or shall cause the Subsidiary that owns the Capital Stock of such Material
Foreign Subsidiary to, execute and deliver to Administrative Agent a supplement
to the Security Agreement and, if requested by Administrative Agent, a Foreign
Pledge Agreement and to deliver to Administrative Agent certificates
representing all of the Capital Stock of such Material Foreign Subsidiary (or,
in the case of a Foreign Corporation, 65% of the Capital Stock of such Foreign
Corporation), accompanied by irrevocable undated stock powers, duly endorsed in
blank; provided, that the Administrative Agent may agree in its sole
discretion, with respect to any pledge of the Capital Stock in any such
Material Foreign Subsidiary, that the pledge of such Capital Stock is
impossible, impractical or unreasonably burdensome or expensive (or has been
substantially, but not fully, completed), and the Administrative Agent may, in
its sole discretion, consent to a waiver of the pledge of any such Capital
Stock (notwithstanding any provision of subsection 10.6, in acting pursuant
to the foregoing proviso, the Lenders hereby authorize the Administrative
Agent, in its sole discretion and from time to time, to grant such waivers).


 


C.  Subsidiary Organizational Documents, Legal
Opinions, Etc.  Company shall deliver to Administrative Agent,
together with such Loan Documents, (i) certified copies of such Subsidiary’s
Organizational Documents, together with, if such Subsidiary is a Domestic
Subsidiary, a good standing certificate from the Secretary of State of the
jurisdiction of its organization and each other state in which such Person is
qualified to do business and, to the extent generally available, a certificate
or other evidence of good standing as to payment of any applicable franchise or
similar taxes from the appropriate taxing authority of each of such
jurisdictions, each to be dated a recent date prior to their delivery to
Administrative Agent, (ii) a


 


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certificate executed by the
secretary or similar officer of such Subsidiary as to (a) the fact that
the attached resolutions of the Governing Body of such Subsidiary approving and
authorizing the execution, delivery and performance of such Loan Documents are
in full force and effect and have not been modified or amended and (b) the
incumbency and signatures of the officers of such Subsidiary executing such
Loan Documents, and (iii) a favorable opinion of counsel to such
Subsidiary, in form and substance satisfactory to Administrative Agent and its
counsel, as to (a) the due organization and good standing of such
Subsidiary, (b) the due authorization, execution and delivery by such
Subsidiary of such Loan Documents, (c) the enforceability of such Loan
Documents against such Subsidiary and (d) such other matters (including
matters relating to the creation and perfection of Liens in any Collateral
pursuant to such Loan Documents) as Administrative Agent may reasonably
request, all of the foregoing to be satisfactory in form and substance to
Administrative Agent and its counsel; provided, that the Administrative
Agent may agree in its sole discretion, that obtaining any such opinion is
impossible, impractical or unreasonably burdensome or expensive, and the
Administrative Agent may, in its sole discretion, consent to a waiver of the
delivery of any such opinion (notwithstanding any provision of
subsection 10.6, in acting pursuant to the foregoing proviso, the Lenders
hereby authorize the Administrative Agent, in its sole discretion and from time
to time, to grant such waivers).


 


6.9          Matters Relating to
Additional Real Property Collateral.


 


A.  Additional Mortgages, Etc.  From
and after the Closing Date, in the event that (i) Company or any
Subsidiary Guarantor acquires any fee interest in real property in the United
States or (ii) at the time any Person becomes a Subsidiary Guarantor, such
Person owns any fee interest in real property in the United States, in each
case having a fair market value in excess of $2,000,000, and excluding any such
Real Property Asset the encumbrancing of which requires the consent of any
then-existing senior lienholder, where Company and its Subsidiaries have
attempted in good faith, but are unable, to obtain such senior lienholder’s
consent (any such non-excluded Real Property Asset described in the foregoing
clause (i) or (ii) being an “Additional
Mortgaged Property”), Company or such Subsidiary Guarantor shall
deliver to Administrative Agent, as soon as practicable after such Person
acquires such Additional Mortgaged Property or becomes a Subsidiary Guarantor,
as the case may be, a fully executed and notarized Mortgage (an “Additional Mortgage”), in proper form for
recording in all appropriate places in all applicable jurisdictions,
encumbering the interest of such Loan Party in such Additional Mortgaged
Property; and such opinions, appraisal, documents, title insurance,
environmental reports that would have been delivered on the Closing Date if
such Additional Mortgaged Property were a Closing Date Mortgaged Property or
that may be reasonably required by Administrative Agent.


 


B.  Real Estate Appraisals.  In
each case to the extent required under applicable laws and regulations Company
shall, and shall cause each Subsidiary Guarantor to, permit an independent real
estate appraiser satisfactory to Administrative Agent, upon reasonable notice,
to visit and inspect any Additional Mortgaged Property for the purpose of
preparing an appraisal of such Additional Mortgaged Property satisfying the
requirements of such applicable laws and regulations.


 


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6.10        Interest Rate Protection.


 


At all times following the
90th day after the Closing Date, Company shall maintain one or more
Interest Rate Agreements such that at least 50% of the principal amount of
Funded Debt of the Company shall be at a fixed rate of interest or be hedged to
be effectively at a fixed rate of interest for a term of at least three (3)
years following the Closing Date, each such Interest Rate Agreement to be in
form and substance satisfactory to Administrative Agent.


 


6.11        Deposit Accounts, Securities
Accounts and Cash Management Systems.


 


Company shall not permit the
aggregate principal balance in its and its Domestic Subsidiaries’ Deposit
Accounts and Securities Accounts which are not subject to Control Agreements to
exceed $1,000,000 at any time (it being understood and agreed that payroll
accounts shall not be required to be subject to Control Agreements so long as
the aggregate amount of funds on deposit in all such payroll accounts does not
materially exceed estimated payroll for the next payroll period).  For the avoidance of doubt, cash deposits (a)
contemplated pursuant to clause (iii) of the definition of Permitted
Encumbrance and (b) secured by Liens permitted by clauses (vii), (viii), (ix),
(x) and (xi) of Section 7.2, shall not be considered Deposit Accounts for
purposes of this Section 6.11.


 


6.12        Final Redemption Date.


 


The Final Redemption Date
shall occur no later than April 15, 2005.


 


6.13        Designation of Obligations
as “Designated Senior Indebtedness”.  


 


Company shall designate the
Obligations as “Designated Senior Indebtedness” (as defined in the New Senior
Subordinated Note Indenture) under the New Senior Subordinated Note Indenture.


 


6.14        Post-Closing Deliveries.  


 


Company shall cause (i) any
actions set forth on Schedule 6.14 annexed hereto to be taken and (ii)
each document, certificate or other item set forth on such Schedule 6.14
to be delivered, in each case within the time period specified on such Schedule
6.14 (as such time may be extended by Administrative Agent in its sole
discretion) and in form and substance reasonably satisfactory to Administrative
Agent.


 


Section 7.              COMPANY’S NEGATIVE COVENANTS


 


Company covenants and agrees
that, so long as any of the Commitments hereunder shall remain in effect and
until payment in full of all of the Loans and other Obligations (other than
Unasserted Obligations) and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 7.


 


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7.1          Indebtedness.


 


Company shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly, create, incur,
assume or guaranty, or otherwise become or remain directly or indirectly liable
with respect to, any Indebtedness, except:


 


(i)            the Obligations;


 


(ii)           Company and its Subsidiaries may become and
remain liable with respect to Contingent Obligations permitted by
subsection 7.4 and, upon any matured obligations actually arising pursuant
thereto, the Indebtedness corresponding to the Contingent Obligations;


 


(iii)          Company and its Subsidiaries may become and
remain liable with respect to Indebtedness in respect of Capital Leases
aggregating not in excess of (i) $12,000,000 during the Fiscal Year ending
December 31, 2005 and (ii) $15,000,000 during each subsequent Fiscal Year;


 


(iv)          purchase money Indebtedness incurred in connection
with the acquisition, construction, improvement or lease of equipment or fixed
or capital assets in an aggregate amount not to exceed $15,000,000 at any time;


 


(v)           Company may become and remain liable with
respect to Indebtedness to any Subsidiary, and any Subsidiary of Company may
become and remain liable with respect to Indebtedness to Company or any
Subsidiary; provided that (a) a security interest in all such
intercompany Indebtedness owing to the Company or any Subsidiary Guarantor
shall have been granted to Administrative Agent for the benefit of Lenders and
(b) if such intercompany Indebtedness described in clause (a) is
evidenced by a promissory note or other instrument, such promissory note or
instrument shall have been pledged to Administrative Agent in accordance with
the Security Agreement; provided  further, that (1) the aggregate
amount of Indebtedness owing by Subsidiaries of Company that are not Subsidiary
Guarantors to Company and the Subsidiary Guarantors shall not exceed at any one
time $75,000,000 minus the net amount of Investments outstanding under
subsection 7.3(vii) at such time and (2) upon the occurrence and during
the continuance of an Event of Default, Subsidiaries of Company that are not
Subsidiary Guarantors shall not be permitted to incur additional Indebtedness
owing to Company or a Subsidiary Guarantor pursuant to this clause (v);


 


(vi)          Company and its
Subsidiaries, as applicable, may remain liable with respect to Indebtedness
described in Schedule 7.1 annexed hereto and any Permitted
Refinancings thereof;


 


(vii)         Company may remain liable with respect to
Indebtedness evidenced by the New Senior Subordinated Notes in an aggregate
principal amount not to exceed $225,000,000;


 


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(viii)        Until the Final Redemption Date, Company may
remain liable with respect to Indebtedness of (a) approximately
$100,000,000 in aggregate principal amount of Existing Senior Subordinated
Notes and (b) approximately $19,250,000 in aggregate principal amount of Existing
Convertible Subordinated Debentures;


 


(ix)           Company or a Subsidiary of Company may become
and remain liable with respect to Indebtedness of any Person assumed in
connection with a Permitted Acquisition and a Person that becomes a direct or
indirect wholly-owned Subsidiary of Company as a result of a Permitted
Acquisition may remain liable with respect to Indebtedness existing on the date
of such acquisition (and, in each case, Permitted Refinancings of such
Indebtedness (other than, in the case of Domestic Subsidiaries, any working
capital facilities)); provided that such Indebtedness is not created in
anticipation of such acquisition;


 


(x)            Indebtedness consisting of Permitted Debt
Securities and any Permitted Refinancing thereof;


 


(xi)           Foreign Subsidiaries of Company may become
and remain liable with respect to other Indebtedness in an aggregate principal
amount not to exceed $35,000,000 at any time outstanding;


 


(xii)          Company and its Subsidiaries may become and
remain liable with respect to other Indebtedness in an aggregate principal
amount not to exceed $25,000,000 at any time outstanding;


 


(xiii)         endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;


 


(xiv)        Indebtedness of Hexcel Composites S.A. and
Hexcel Reinforcements S.A.S. in respect of the French Facility, and any
Permitted Refinancings thereof;


 


(xv)         Indebtedness of any Subsidiary owing to
Company or a Subsidiary Guarantor incurred to achieve cash repatriation
strategies so long as the net cash Investment by Company or such Subsidiary
Guarantor in connection therewith is permitted by subsection 7.3(xiv);


 


(xvi)        Indebtedness owing to employees on account of
employee contributions to a non-qualified benefit plan.


 


7.2          Liens and Related Matters.


 


A.  Prohibition on Liens. 
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or permit to exist any Lien on or
with respect to any property or asset of any kind (including any document or
instrument in respect of goods or accounts receivable) of Company or any of its
Subsidiaries, whether now owned or hereafter acquired, or any income or profits
therefrom, or file or permit the filing of, or permit to


 


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remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC or under any similar recording or notice statute, except:


 


(i)            Permitted Encumbrances;


 


(ii)           Liens to secure Indebtedness permitted by
subsections 7.1(iii) and 7.1(iv); provided, however, that
the Lien shall apply only to the asset so acquired or leased and proceeds
thereof;


 


(iii)          Liens assumed in connection with a Permitted
Acquisition and Liens on assets of a Person that becomes a direct or indirect
Subsidiary of Company after the date of this Agreement in a Permitted
Acquisition, provided, however, that such Liens exist at the time
such Person becomes a Subsidiary and are not created in anticipation of such
acquisition and, in any event, do not, for each Permitted Acquisition, secure
Indebtedness in excess of the lesser of (a) 50% of the Indebtedness permitted
by subsection 7.1(ix) and (b) $15,000,000, provided  further, that
such Liens may secure Indebtedness in excess of such amount for a period of no
more than thirty (30) days following the date of such Permitted Acquisition; 


 


(iv)          Liens described
in Schedule 7.2 annexed hereto;


 


(v)           Liens on the assets of Hexcel Composites S.A.
and Hexcel Reinforcements S.A.S. securing the French Facility in accordance
with the French Facility Documents;


 


(vi)          Liens on assets
of Foreign Subsidiaries securing Indebtedness of any Foreign Subsidiary
permitted pursuant to subsection 7.1(xi);


 


(vii)         Liens in respect of amounts deposited on the
Closing Date with the applicable trustees in respect of the defeasance of the
Existing Senior Secured Notes, the Existing Senior Subordinated Notes and the
Existing Convertible Subordinated Debentures;


 


(viii)        Other Liens securing Indebtedness in an
aggregate amount not to exceed $5,000,000 at any time outstanding;


 


(ix)           Liens securing Indebtedness or Contingent
Obligations with respect to Hedge Agreements entered into with any Swap Counterparty;


 


(x)            Liens securing Indebtedness or Contingent
Obligations with respect to Hedge Agreements of any Subsidiary that is not a
Subsidiary Guarantor which Indebtedness or Contingent Obligations, in the
aggregate, do not exceed $10,000,000 at any time outstanding; and


 


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(xi)           Liens on any cash deposits (including,
without limitation, earnest money) in connection with any letter of intent or
other agreement in connection with a transaction otherwise permitted by this
Agreement.


 


Notwithstanding the
foregoing, Company and its Domestic Subsidiaries shall not enter into, or
suffer to exist, any control agreements (as such term is defined in the UCC),
other than Control Agreements entered into pursuant to subsection 6.11 or the
Security Agreement.


 


B.  No Further Negative Pledges. 
Neither Company nor any of its Subsidiaries shall enter into any
agreement prohibiting the creation or assumption of any Lien upon any of its
properties or assets, whether now owned or hereafter acquired, other than
(i) an agreement prohibiting only the creation of Liens securing
Subordinated Indebtedness, (ii) any agreement evidencing Indebtedness
secured by Liens permitted by subsection 7.2A(ii), as to the assets securing
such Indebtedness, (iii) any agreement evidencing an asset sale, as to the
assets being sold, (iv) restrictions imposed by the terms of the French
Facility upon the assets of Hexcel Composites S.A. and Hexcel Reinforcements
S.A.S. (and any of their wholly-owned Subsidiaries); (v) customary
anti-assignment provisions and restrictions contained in leases, licensing
agreements, joint venture agreements and other agreements entered into by
Company or such Subsidiary in the ordinary course of its business, (vi) restrictions
imposed by applicable law or as a result of the fiduciary duty of directors to
such Subsidiaries and (vii) customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Subsidiary that is
to be sold and such sale is permitted hereunder.


 


C.  No Restrictions on Subsidiary Distributions
to Company or Other Subsidiaries.  Company will not, and will not
permit any of its Subsidiaries to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on
the ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary’s Capital Stock owned by Company or any
other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed by
such Subsidiary to Company or any other Subsidiary of Company, (iii) make
loans or advances to Company or any other Subsidiary of Company, or (iv) transfer
any of its property or assets to Company or any other Subsidiary of Company,
except as provided (1) in this Agreement (including, without limitation,
restrictions described in subsection 7.2B(ii)-(vii) above), (2) in
the New Senior Subordinated Note Indenture and (3) prior to the Final
Redemption Date, the Existing Senior Secured Note Indenture, the Existing
Senior Subordinated Note Indenture and the Existing Convertible Subordinated
Debenture Indenture.


 


7.3          Investments; Acquisitions.


 


Company shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly, make or own any
Investment in any Person, including any Joint Venture, or acquire, by purchase
or otherwise, all or substantially all the business, property or fixed assets
of, or Capital Stock of any Person, or any division or line of business of any
Person except:


 


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(i)            Company and its Subsidiaries may make and own
Investments consisting of Cash and Cash Equivalents; provided that, at
any time Revolving Loans or Swing Line Loans are outstanding, the aggregate
amount of Cash and Cash Equivalents permitted to be owned by Company and its
Domestic Subsidiaries shall not exceed $40,000,000 for any period of five
(5) consecutive days;


 


(ii)           Company and its Subsidiaries may continue to
own the Investments owned by them as of the Closing Date in the Company and in
any Subsidiaries of Company, and Company and its Subsidiaries may make and own
additional Investments in the Company or any Subsidiary Guarantor;


 


(iii)          Company and its Subsidiaries may
(a) become liable in respect of Contingent Obligations permitted by
subsection 7.4 and (b) make and incur intercompany loans to the
extent permitted under subsection 7.1(v);


 


(iv)          Company and its
Subsidiaries may make Consolidated Capital Expenditures permitted by subsection
7.8;


 


(v)           Company and its Subsidiaries may continue to
own the Investments described in Schedule 7.3 annexed hereto (and
may make incremental Investments contemplated in connection therewith) and any
extension or renewal thereof; provided that any additional Investments
made with respect thereto shall be permitted only to the extent such
Investments are described on Schedule 7.3 or made in accordance with the
other provisions of this subsection 7.3;


 


(vi)          Company and its Subsidiaries may acquire any
business, division, line or assets (including Capital Stock and including
Capital Stock of Subsidiaries formed in connection with any such acquisition)
for an aggregate purchase price (determined at the time of purchase thereof)
not in excess of $50,000,000 in any individual case (less the amount of any Net
Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale
Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase
price in accordance with this Agreement, subject, however, to the provisions of
subsections 2.4B(iii) and 6.4C hereof), and continue to own such assets after
the acquisition thereof; provided that (a) no Potential Event of
Default or Event of Default shall have occurred and be continuing at the time
such acquisition occurs or immediately after giving effect thereto, (b) Company
shall, and shall cause its Subsidiaries to, comply with the requirements of
subsections 6.8 and 6.9 (within the time period required thereunder or within
such other time period as Administrative Agent may permit in its sole
discretion) with respect to each such acquisition that results in a Person
becoming a Material Subsidiary, (c) all representations and warranties contained
herein and in the other Loan Documents shall be true and correct in all
material respects with the same effect as though such representations and
warranties had been made on and as of the date of such acquisition (both before
and after giving effect thereto), 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, (d) for any such
acquisitions Company shall have provided (I) financial statements for any
Person (or line of business)


 


106





















 


acquired in any such
acquisition for the last Fiscal Year of such Person or line of business,
audited or reviewed by independent certified public accountants reasonably
satisfactory to Administrative Agent or such other financial statements, in
each case, available to Company and (II) to Administrative Agent a pro-forma
Compliance Certificate certified by a Financial Officer of Company and
demonstrating that after giving effect to such acquisition, Company and its
Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1)
the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of
Revolving Loan Commitments after giving effect to such acquisition and any
related transactions, is not less than $25,000,000;


 


(vii)         so long as no Event of Default has occurred
and is continuing, Company and its Subsidiaries may make additional Investments
in any Subsidiary that is not a Subsidiary Guarantor; provided that the
amount of all such Investments does not (together with Indebtedness permitted
by Subsection 7.1(v)) exceed $75,000,000 (net of cash amounts paid by any
Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary
Guarantor after the Closing Date in respect of (A) Investments made in such
Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such
Subsidiary that is not a Subsidiary Guarantor, including, without limitation,
cash payments that are comprised of dividends, share repurchases, share
redemptions or other cash returns on such share capital) in the aggregate
outstanding at any time for all such Investments;


 


(viii)        Company and its Subsidiaries may make and own
other Investments in an aggregate amount not to exceed at any time $25,000,000;


 


(ix)           Company may acquire and hold obligations of
one or more officers or other employees of Company or its Subsidiaries in
connection with such officers’ or employees’ acquisition of shares of Company’s
Capital Stock, so long as no cash is actually advanced by Company or any of its
Subsidiaries to such officers or employees in connection with the acquisition
of any such obligations;


 


(x)            Company and its Subsidiaries may receive and
hold promissory notes and other non-cash consideration received in connection
with any Asset Sale permitted by subsection 7.7;


 


(xi)           Company and its Subsidiaries may acquire and
hold Investments in Securities in connection with the full or partial
satisfaction, settlement or enforcement of Indebtedness or claims or other
obligations due or owing to Company or any of its Subsidiaries or as security
for any such Indebtedness or claim;


 


(xii)          any transaction permitted by subsections 7.5 or
7.7;


 


(xiii)         deposits, prepayments and extensions of trade credit
in the ordinary course of business; and


 


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(xiv)        Investments by Company or any Subsidiary
Guarantor in any of their respective Subsidiaries (1) consisting of capital
stock and/or intercompany notes made to achieve cash repatriation strategies or
(2) the consideration for which is the cancellation or other settlement of any
corresponding intercompany Indebtedness incurred in connection with Investments
permitted pursuant to the foregoing clause (1), in each case so long as the net
cash Investment by Company or such Subsidiary Guarantor in connection therewith
does not (a) exceed zero after the tenth day following the making of such cash
Investment and (b) in any event exceed $25,000,000 (taken together with the
amount of all other cash Investments then outstanding under this subsection
7.3(xiv)) at any time.


 


7.4          Contingent Obligations.


 


Company shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly, create or become
or remain liable with respect to any Contingent Obligation, except:


 


(i)            Company may become and remain liable with
respect to Contingent Obligations in respect of Letters of Credit and Company
and its Subsidiaries may become and remain liable with respect to Contingent
Obligations in respect of other letters of credit in an aggregate amount not to
exceed at any time $6,500,000;


 


(ii)           Company and its Subsidiaries may become and
remain liable with respect to Contingent Obligations under Hedge Agreements
required under subsection 6.10 and under other Hedge Agreements entered
into in the ordinary course of business and not for speculative purposes;


 


(iii)          Company and its Subsidiaries may become and
remain liable with respect to Contingent Obligations in respect of customary
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets and in respect of earn-out
obligations incurred in connection with Permitted Acquisitions (provided that
the maximum reasonably anticipated amount of such earn-out obligations,
together with the purchase price, does not exceed the applicable limit under
subsection 7.3(vi));


 


(iv)          Company and its
Subsidiaries may become and remain liable with respect to Contingent Obligations
under guarantees and other similar arrangements in the ordinary course of
business of the obligations of Company and its Subsidiaries;


 


(v)           Company and its Subsidiaries may become and
remain liable with respect to Contingent Obligations in respect of any
Indebtedness of Company or any of its Subsidiaries permitted by
subsection 7.1 (other than, in the case of Subsidiaries of the Company,
the Existing Senior Subordinated Notes and the Existing Convertible
Subordinated Debentures);


 


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(vi)          Company and its
Subsidiaries, as applicable, may remain liable with respect to Contingent
Obligations described in Schedule 7.4 annexed hereto and any
extension or renewal thereof;


 


(vii)         Company and its Subsidiaries may become and
remain liable with respect to other Contingent Obligations; provided
that the maximum aggregate liability, contingent or otherwise, of Company and
its Subsidiaries in respect of all such Contingent Obligations shall at no time
exceed $15,000,000.


 


7.5          Restricted Junior Payments.


 


Company shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly, declare, order,
pay, make or set apart any sum for any Restricted Junior Payment; provided
that Company may:


 


(i)            make regularly scheduled payments of interest
in respect of any Subordinated Indebtedness in accordance with the terms of,
and only to the extent required by, and subject to the subordination provisions
contained in, the indenture or other agreement pursuant to which such
Subordinated Indebtedness was issued, as such indenture or other agreement may
be amended from time to time to the extent permitted under subsection 7.12;


 


(ii)           on the Closing Date and on the Final Redemption
Date, make Restricted Junior Payments to fund the Recapitalization as
contemplated by this Agreement;


 


(iii)          so long as no Event of Default has occurred
and is continuing or would result therefrom, Company may purchase Company’s
common stock or common stock options from present or former officers or
employees of Company or any Subsidiary of Company upon the death, disability or
termination of employment of such officer or employee;


 


(iv)          prior to the Final Redemption Date, pay accrued
and unpaid interest on the Existing Senior Subordinated Notes and Existing
Convertible Subordinated Debentures in accordance with the terms thereof;


 


(v)           make Restricted Junior Payments with respect
to (x) employee or director stock options, stock incentive plans or restricted
stock plans of Company which are compensatory in nature, made in the ordinary
course of business and consistent with the past practices of Company and (y)
the purchase from time to time by Company of its common stock (for not more
than market price) with the proceeds of the exercise by grantees under any
equity-based incentive plan;


 


(vi)          so long as no Potential Event of Default or
Event of Default has occurred and is continuing at the time of such payment or
immediately after giving effect thereto, make payments of principal (and
accrued and unpaid interest thereon) with respect to Subordinated Indebtedness;
provided  that (x) the Company shall have provided to


 


109





















 


Administrative Agent a
pro-forma Compliance Certificate certified by the Chief Financial Officer of
Company and demonstrating that after giving effect to such payments of
principal (and accrued and unpaid interest thereof) and any incurrence of
Indebtedness in connection therewith, the Consolidated Leverage Ratio is less
than 2.00 to 1.00 and (y) the amount by which (1) the Revolving Loan Commitment
Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after
giving effect to such Restricted Junior Payment, is not less than $50,000,000;


 


(vii)         (x) convert Preferred Stock into common stock
of the Company pursuant to the terms of the Preferred Stock Certificates of
Designation and (y) after March 19, 2006, make a cash payment to the holder of
each share of Series A Preferred Stock in amount equal to such share’s Conversion
Payment (as such term is defined in the Series A Certificate of Designation) to
the extent required by Section 9(b) of the Series A Certificate of Designation;
and


 


(viii)        so long as no Potential Event of Default or
Event of Default has occurred and is continuing at the time of such payment or
immediately after giving effect thereto, other Restricted Junior Payments by
Company in respect of its Capital Stock; provided  that (x) the
Company shall have provided to Administrative Agent a pro-forma Compliance Certificate
certified by the Chief Financial Officer of Company and demonstrating that
after giving effect to any such Restricted Junior Payment, the Consolidated
Leverage Ratio is less than 2.50 to 1.00, (y) the amount by which (1) the
Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving
Loan Commitments after giving effect to such Restricted Junior Payment, is not
less than $50,000,000 and (z) the aggregate amount of all Restricted Junior
Payments in respect of its Capital Stock made pursuant to this clause (viii)
since the Closing Date shall not exceed $20,000,000 plus the sum of (1)
17% of Consolidated Net Income of Company for the Fiscal Quarter ending March
31, 2005 and (2) an amount equal to 50% of Consolidated Net Income of Company
for the period (taken as one accounting period) from April 1, 2005 to the end
of Company’s most recently ended Fiscal Quarter for which financial statements
have been delivered pursuant to subsection 6.1(ii).


 


7.6          Financial Covenants.


 


A.  Minimum Interest Coverage Ratio. 
Company shall not permit the ratio of (i) Consolidated EBITDA to
(ii) Consolidated Interest Expense for any four-Fiscal Quarter period
ending during any of the periods set forth below to be less than the
correlative ratio indicated:


 


110





















 


	
  Period

  	
   

  	
  Minimum Interest

  Coverage Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal Quarter ended June 30, 2005 to

  Fiscal Quarter ended September 30, 2005:

  	
   

  	
  3.50:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal Quarter ended December 31, 2005 to

  Fiscal Quarter ended September 30, 2006:

  	
   

  	
  3.75:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal Quarter ended December 31, 2006 and

  thereafter:

  	
   

  	
  4.00:1.00

  	
   

  



 


B.  Maximum Leverage Ratio. 
Company shall not permit the Consolidated Leverage Ratio as of the last
day of the most recently ended Fiscal Quarter ending during any of the periods
set forth below to exceed the correlative ratio indicated:


 


	
  Period

  	
   

  	
  Maximum Leverage Ratio

  	
   

  
	
  Fiscal Quarter ended June 30, 2005 to

  Fiscal Quarter ended September 30, 2005:

  	
   

  	
  3.75:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal Quarter ended December 31, 2005 to

  Fiscal Quarter ended September 30, 2006:

  	
   

  	
  3.50:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal Quarter ended December 31, 2006 to

  Fiscal Quarter ended September 30, 2007:

  	
   

  	
  3.25:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal Quarter ended December 31, 2007 and

  thereafter:

  	
   

  	
  3.00:100

  	
   

  



 


7.7          Restriction on Fundamental
Changes; Asset Sales.


 


Company shall not, and shall
not permit any of its Subsidiaries to, enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or
sublessor), transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets, whether now
owned or hereafter acquired, except:


 


(i)            any Subsidiary of Company may be merged with or
into Company or any Subsidiary Guarantor, or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to Company or any Subsidiary


 


111





















 


Guarantor; provided
that, in the case of such a merger, Company or such Subsidiary Guarantor shall
be the continuing or surviving Person;


 


(ii)           any Subsidiary of Company that is not a
Subsidiary Guarantor may be merged with or into any Subsidiary of the Company
that is not a Subsidiary Guarantor, or be liquidated, wound up or dissolved, or
all or any part of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to any Subsidiary of the Company that is not a Subsidiary
Guarantor;


 


(iii)          an Asset Sale identified on Schedule 7.7;


 


(iv)          assignments and licenses of Intellectual
Property of Company or any Subsidiary between or among Company and its
Subsidiaries, and licenses (a) to joint ventures or (b) in the
ordinary course of business;


 


(v)           leases of owned real property and subleases of
leased real property, in each case, not used in the operations of Company and
its Subsidiaries;


 


(vi)          Company and its Subsidiaries may sell or
otherwise dispose of assets in transactions that do not constitute Asset Sales;
provided that the consideration received for such assets (other than
assets described in clause (iii)(b) of the definition
of Asset Sale) shall be in an amount at least equal to the fair market value
thereof (as determined in good faith by the Company);


 


(vii)         Company and its Subsidiaries may dispose of
obsolete, worn out or surplus property in the ordinary course of business;


 


(viii)        Company and its Subsidiaries may make Asset
Sales of assets having a net book value on the Company’s books and records not
in excess of $10,000,000 in any Fiscal Year; provided that (a) the
consideration received for such assets shall be in an amount at least equal to
the fair market value thereof (as determined in good faith by the Company);
(b) at least 75% of the consideration received shall be cash; and (c) no
Potential Event of Default or Event of Default shall have occurred or be
continuing after giving effect thereto;


 


(ix)           in order to resolve disputes that occur in
the ordinary course of business, Company and its Subsidiaries may discount or
otherwise compromise for less than the face value thereof, notes or accounts
receivable;


 


(x)            Company or a Subsidiary may sell or dispose
of shares of Capital Stock of any of its Subsidiaries in order to qualify
members of the Governing Body of the Subsidiary if required by applicable law;


 


(xi)           Any transaction permitted pursuant to
subsection 7.3 or 7.10;


 


112





















 


(xii)          Company and its Subsidiaries may sell or
otherwise dispose of Cash Equivalents for fair value;


 


(xiii)         Company and its Subsidiaries may sell or
otherwise dispose of specific items of equipment so long as the purpose of such
sale or disposition is to acquire replacement items of like-kind equipment or
other equipment used or useful in the conduct of the business of Company or any
of its Subsidiaries; and


 


(xiv)        Hexcel Composites S.A. and Hexcel
Reinforcements S.A.S. and any of their Subsidiaries may transfer receivables
pursuant to the French Facility.


 


7.8          Consolidated Capital
Expenditures.


 


Company shall not, and shall
not permit its Subsidiaries to, make or incur Consolidated Capital
Expenditures, in any Fiscal Year indicated below, in an aggregate amount in
excess of the corresponding amount (the “Maximum
Consolidated Capital Expenditures Amount”) set forth below opposite
such Fiscal Year; provided that, if at the end of any Fiscal Year the
Consolidated Leverage Ratio is less than 2.0 to 1.0, the Maximum Consolidated
Capital Expenditures Amount for the immediately succeeding Fiscal Year shall be
increased by $50,000,000:


 


	
  Fiscal Year

  	
   

  	
  Maximum Consolidated

  Capital Expenditures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2005:

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2006 and
  each Fiscal Year thereafter:

  	
   

  	
  $

  	
  100,000,000

  	
   

  



 


7.9          Transactions with
Shareholders and Affiliates.


 


Company shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly, enter into or
permit to exist any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder of
Securities of Company representing 10% or more of the total voting power for
the election of directors of Company or with any Affiliate of Company or of any
such holder, on terms that are less favorable to Company or that Subsidiary, as
the case may be, than those that might be obtained at the time from Persons who
are not such a holder or Affiliate; provided that the foregoing
restriction shall not apply to (i) any transaction (1) between one of more
of Company and any of its wholly-owned Subsidiaries or any Subsidiary
Guarantor, (2) between any of Company’s wholly-owned Subsidiaries, (3)
between any of the Subsidiary Guarantors or (4) between any of
Company’s Subsidiaries that are not Subsidiary Guarantors, (ii) reasonable
and customary fees paid to members of the Governing Bodies of Company and its
Subsidiaries, (iii) indemnification payments to employees, officers or
directors of Company and its Subsidiaries to the extent required by the
applicable Organizational Documents or applicable law, (iv) service
agreements


 


113





















 


or compensation arrangements with employees,
officers and directors of Company and its Subsidiaries entered into in the
ordinary course of business, (v) transactions pursuant to the agreements set
forth on Schedule 7.9 and (vi) transactions otherwise expressly
permitted by this Agreement.


 


7.10        Sales and Lease-Backs.


 


Company shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly, become or remain
liable as lessee or as a guarantor or other surety with respect to any lease of
any property (whether real, personal or mixed), whether now owned or hereafter
acquired, (i) that Company or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other than Company
or any of its Subsidiaries) or (ii) that Company or any of its
Subsidiaries intends to use for substantially the same purpose as any other
property that has been or is to be sold or transferred by Company or any such
Subsidiary to any Person (other than Company or any of its Subsidiaries) in
connection with such lease; provided that Company and its Subsidiaries
may become and remain liable as lessee, guarantor or other surety with respect
to any such lease if and to the extent that Company or any of its
Subsidiaries would be permitted to enter into, and remain liable under, such
lease to the extent that the transaction would be permitted under subsection
7.1, assuming the sale and lease back transaction constituted Indebtedness in a
principal amount equal to the gross proceeds of the sale.


 


7.11        Conduct of Business.


 


From and after the Closing
Date, Company shall not, and shall not permit any of its Subsidiaries to,
engage in any business other than (i) the businesses engaged in by Company
and its Subsidiaries on the Closing Date and similar or related businesses and
(ii) such other lines of business as may be consented to by Requisite Lenders.


 


7.12        Amendments of Documents
Relating to Indebtedness.


 


Except as expressly
contemplated by this Agreement, Company
shall not, and shall not permit any of its Subsidiaries to, amend or otherwise
change the terms of any Subordinated Indebtedness, the Existing Senior Secured
Notes, the Existing Senior Subordinated Notes, the Existing Convertible
Subordinated Debenture or the French Facility (except in connection with a
Permitted Refinancing thereof), or make any payment consistent with an
amendment thereof or change thereto, if the effect of such amendment or change
is to increase the interest rate thereon, change (to earlier dates) any dates upon
which payments of principal or interest are due thereon, change any event of
default or condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions thereof (or of any guaranty thereof), or
change any collateral therefor (other than to release such collateral), or if
the effect of such amendment or change, together with all other amendments or
changes made, is to increase materially the obligations of the obligor
thereunder or to confer any additional rights on the holders thereon (or a
trustee or other representative on their behalf) which, in each case, would be
adverse in any material respect to Company or Lenders.


 


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7.13        Designation of “Designated
Senior Indebtedness.”


 


Company shall not designate
any Indebtedness as “Designated Senior Indebtedness” (as defined in the New
Senior Subordinated Note Indenture) under the New Senior Subordinated Note
Indenture without the prior written consent of Requisite Lenders.


 


7.14        Fiscal Year.


 


Company shall not change its
Fiscal Year-end from December 31.


 


Section 8.              EVENTS OF DEFAULT


 


If any of the following
conditions or events (“Events of Default”)
shall occur:


 


8.1          Failure to Make Payments
When Due.


 


Failure by Company to pay
any installment of principal of any Loan when due, whether at stated maturity,
by acceleration, by notice of voluntary prepayment, by mandatory prepayment or
otherwise; failure by Company to pay when due any amount payable to an Issuing
Lender in reimbursement of any drawing under a Letter of Credit; or failure by
Company to pay any interest on any Loan or any fee or any other amount due
under this Agreement within three days after the date due; or


 


8.2          Default in Other Agreements.


 


(i)            Failure of any Loan Party to pay when due any
principal of or interest on or any other amount payable in respect of one or
more items of Indebtedness (other than Indebtedness referred to in subsection
8.1) or Contingent Obligations in an individual principal amount of $10,000,000
or more or with an aggregate principal amount of $20,000,000 or more, in each
case beyond the end of any grace period provided therefor; or


 


(ii)           breach or default by any Loan Party with
respect to any other material term of (a) one or more items of Indebtedness in
the individual or aggregate principal amounts referred to in clause (i) above
or (b) any loan agreement, mortgage, indenture or other agreement relating
to such item(s) of Indebtedness, in each case beyond the grace period, if any, provided
therefor if the effect of such breach or default is to cause, or to
permit the holder or holders of that Indebtedness (or a trustee on behalf of
such holder or holders) to cause, that Indebtedness to become or be declared
due and payable prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be (upon the giving or receiving of
notice, lapse of time, both, or otherwise); or


 


8.3          Breach of Certain Covenants.


 


Failure of Company to
perform or comply with any term or condition contained in subsection 2.5A,
2.5B, 6.1(i), 6.2, 6.12 or 6.13 or Section 7 of this Agreement; or


 


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8.4          Breach of Warranty.


 


Any representation,
warranty, certification or other statement made by any Loan Party in any Loan
Document or in any statement or certificate at any time given by any Loan Party
in writing pursuant hereto or thereto or in connection herewith or therewith
shall be false in any material respect on the date as of which made; or


 


8.5          Other Defaults Under Loan Documents.


 


Any Loan Party shall default
in the performance of or compliance with any term contained in this Agreement
or any of the other Loan Documents, other than any such term referred to in any
other subsection of this Section 8, and such default shall not have been
remedied or waived within 30 days after receipt by Company and such Loan Party
of notice from Administrative Agent or any Lender entitled to give notice of
such default; or


 


8.6          Involuntary Bankruptcy;
Appointment of Receiver, etc..


 


(i)            A court having jurisdiction in the premises
shall enter a decree or order for relief in respect of any Loan Party in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or


 


(ii)           an involuntary case shall be commenced
against any Loan Party under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect; or a decree
or order of a court having jurisdiction in the premises for the appointment of
a receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers over any Loan Party, or over all or a substantial part of
its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of
any Loan Party for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of any Loan Party, and any such event
described in this clause (ii) shall continue for 60 days unless dismissed,
bonded or discharged; or


 


8.7          Voluntary Bankruptcy;
Appointment of Receiver, etc..


 


(i)            Any Loan Party shall have an order for relief
entered with respect to it or commence a voluntary case under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or any Loan Party shall make any assignment for the
benefit of creditors; or


 


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(ii)           Any Loan Party shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as such
debts become due; or the Governing Body of any Loan Party (or any committee
thereof) shall adopt any resolution or otherwise authorize any action to
approve any of the actions referred to in clause (i) above or this clause (ii);
or


 


8.8          Judgments and Attachments.


 


Any money judgment, writ or
warrant of attachment or similar process involving (i) in any individual
case an amount in excess of $10,000,000 or (ii) in the aggregate at any
time an amount in excess of $20,000,000, in either case to the extent not
adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage in writing, shall be entered or
filed against Company or any other Loan Party or any of their respective assets
and shall remain undischarged, unvacated, unbonded or unstayed for a period of
60 days (or in any event later than five days prior to the date of any proposed
sale thereunder); or


 


8.9          Dissolution.


 


Any order, judgment or
decree shall be entered against Company or any other Loan Party decreeing the
dissolution or split up of Company or such Loan Party and such order shall
remain undischarged or unstayed for a period in excess of 30 days; or


 


8.10        Employee Benefit Plans.


 


There shall occur one or more
ERISA Events that individually or in the aggregate would reasonably be expected
to result in a Material Adverse Effect during the term of this Agreement; or
there shall exist an amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA) individually or in the aggregate for all Pension
Plans (excluding for purposes of such computation any Pension Plans with
respect to which assets exceed benefit liabilities), which would reasonably be
expected to result in a Material Adverse Effect; or


 


8.11        Change in Control.


 


A Change in Control shall
have occurred; or


 


8.12        Invalidity of Loan
Documents; Failure of Security; Repudiation of Obligations.


 


At any time after the
execution and delivery thereof, (i) the Credit Agreement or any Note or any
provision thereof, for any reason than the satisfaction in full or all
Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void, (ii) the
Subsidiary Guaranty, for any reason other than the satisfaction in full of all
Obligations or upon the release of any Subsidiary Guarantor in connection with
an Asset Sale permitted hereby, shall cease to be in full force and effect
(other than in accordance with its terms) or shall be declared to be null and
void, (iii) any Collateral Document, for any reason other than the satisfaction
in full of the Obligations or upon a release


 


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of Collateral in accordance
with the terms hereof or thereof, shall cease to be in full force and effect
(other than in accordance with its terms) or shall be declared to be null and
void, or Administrative Agent shall not have or shall cease to have a valid and
perfected First Priority Lien in any Collateral purported to be covered by the
Collateral Documents for any reason other than the failure of Administrative
Agent or any Lender to take any action within its control, or (iv) any Loan
Party shall contest the validity or enforceability of any Loan Document or any
provision thereof or the validity or first priority of any First Priority Lien
in any Collateral purported to be covered by the Collateral Documents in
writing or deny in writing that it has any further liability, including with
respect to future advances by Lenders, under any Loan Document to which it is a
party:


 


THEN (i) upon the occurrence of any Event of
Default described in subsection 8.6 or 8.7, each of (a) the unpaid
principal amount of and accrued interest on the Loans, (b) an amount equal
to the maximum amount that may at any time be drawn under all Letters of Credit
then outstanding (whether or not any beneficiary under any such Letter of
Credit shall have presented, or shall be entitled at such time to present, the
drafts or other documents or certificates required to draw under such Letter of
Credit), and (c) all other Obligations shall automatically become
immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by Company,
and the obligation of each Lender to make any Loan, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate, and
(ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request of Requisite
Lenders, by written notice to Company, declare all or any portion of the
amounts described in clauses (a) through (c) above to be, and the same shall
forthwith become, immediately due and payable, and the obligation of each
Lender to make any Loan, the obligation of Administrative Agent to issue any
Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder
shall thereupon terminate; provided that the foregoing shall not affect
in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the
obligations of Revolving Lenders to purchase assignments of any unpaid Swing
Line Loans as provided in subsection 2.1A(iii).


 


Any amounts described in
clause (b) above, when received by Administrative Agent, shall be held by
Administrative Agent pursuant to the terms of the Security Agreement and shall
be applied as therein provided


 


Section 9.              ADMINISTRATIVE AGENT


 


9.1          Appointment.


 


A.  Appointment of Administrative Agent.  DBTCA
is hereby appointed Administrative Agent hereunder and under the other Loan
Documents.  Each Lender hereby authorizes
Administrative Agent to act as its agent in accordance with the terms of this
Agreement and the other Loan Documents. 
DBTCA agrees to act upon the express conditions contained in this
Agreement and the other Loan Documents, as applicable.  The provisions of this Section 9 are
solely for the benefit of Agents and Lenders and no Loan Party shall have
rights as a third party beneficiary of any of the provisions thereof.  In performing its functions and duties under
this


 


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Agreement, Administrative
Agent (other than as provided in subsection 2.1D) shall act solely as an agent
of Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Company or
any other Loan Party.


 


B.  Appointment of Supplemental Collateral
Agents.  It is the purpose of this Agreement and the
other Loan Documents that there shall be no violation of any law of any
jurisdiction denying or restricting the right of banking corporations or
associations to transact business as agent or trustee in such
jurisdiction.  It is recognized that in
case of litigation under this Agreement or any of the other Loan Documents, and
in particular in case of the enforcement of any of the Loan Documents, or in
case Administrative Agent deems that by reason of any present or future law of
any jurisdiction it may not exercise any of the rights, powers or remedies
granted herein or in any of the other Loan Documents or take any other action
which may be desirable or necessary in connection therewith, it may be
necessary that Administrative Agent appoint an additional individual or
institution as a separate trustee, co-trustee, collateral agent or collateral
co-agent (any such additional individual or institution being referred to
herein individually as a “Supplemental
Collateral Agent” and collectively as “Supplemental Collateral Agents”).


 


In the event that
Administrative Agent appoints a Supplemental Collateral Agent, with the written
consent of Company, which consent shall not be unreasonably withheld, with
respect to any Collateral, (i) each and every right, power, privilege or duty
expressed or intended by this Agreement or any of the other Loan Documents to
be exercised by or vested in or conveyed to Administrative Agent with respect
to such Collateral shall be exercisable by and vest in such Supplemental
Collateral Agent to the extent, and only to the extent, necessary to enable
such Supplemental Collateral Agent to exercise such rights, powers and
privileges with respect to such Collateral and to perform such duties with
respect to such Collateral, and every covenant and obligation contained in the
Loan Documents and necessary to the exercise or performance thereof by such
Supplemental Collateral Agent shall run to and be enforceable by either
Administrative Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Section 9 and of subsections 10.2 and 10.3 that refer to
Administrative Agent shall inure to the benefit of such Supplemental Collateral
Agent and all references therein to Administrative Agent shall be deemed to be
references to Administrative Agent and/or such Supplemental Collateral Agent,
as the context may require.


 


Should any instrument in
writing from Company or any other Loan Party be required by any Supplemental
Collateral Agent so appointed by Administrative Agent for more fully and
certainly vesting in and confirming to him or it such rights, powers,
privileges and duties, Company shall, or shall cause such Loan Party to,
execute, acknowledge and deliver any and all such instruments promptly upon
request by Administrative Agent.  In case
any Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Administrative Agent until the
appointment of a new Supplemental Collateral Agent.


 


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C.  Control.  Each
Lender and Administrative Agent hereby appoint each
other Lender as agent for the purpose of perfecting Administrative Agent’s
security interest in assets that, in accordance with the UCC, can be perfected
by possession or control.


 


9.2          Powers and Duties; General
Immunity.


 


A.  Powers; Duties Specified.  Each
Lender irrevocably authorizes Administrative Agent to take such action on such
Lender’s behalf and to exercise such powers, rights and remedies hereunder and
under the other Loan Documents as are specifically delegated or granted to
Administrative Agent by the terms hereof and thereof, together with such
powers, rights and remedies as are reasonably incidental thereto.  Administrative Agent shall have only those
duties and responsibilities that are expressly specified in this Agreement and
the other Loan Documents.  Administrative
Agent may exercise such powers, rights and remedies and perform such duties by
or through its agents or employees. 
Administrative Agent shall not have, by reason of this Agreement or any
of the other Loan Documents, a fiduciary relationship in respect of any Lender
or Company; and nothing in this Agreement or any of the other Loan Documents,
expressed or implied, is intended to or shall be so construed as to impose upon
Administrative Agent any obligations in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein.


 


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


 


C.  Exculpatory Provisions.  No
Agent or any of its officers, directors, employees or agents shall be liable to
Lenders for any action taken or omitted by such Agent under or in connection
with any of the Loan Documents except to the extent caused by such Agent’s
gross negligence or willful misconduct. 
An Agent shall be entitled to refrain from any act or the taking of any
action (including the failure to take an action) in connection with this
Agreement or any of the other Loan Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so


 


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instructed) refrain from
acting, or to exercise such power, discretion or authority, in accordance with
such instructions; provided that no Agent shall be required to take any
action that, in its opinion or the opinion of its counsel, may expose such
Agent to liability or that is contrary to any Loan Document or applicable
law.  Without prejudice to the generality
of the foregoing, (i) each Agent shall be entitled to rely, and shall be
fully protected in relying, upon any communication (including any electronic
message, Internet or intranet website posting or other distribution),
instrument or document believed by it to be genuine and correct and to have
been signed or sent by the proper person or persons, and shall be entitled to
rely and shall be protected in relying on opinions and judgments of attorneys
(who may be attorneys for Company and its Subsidiaries), accountants, experts
and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against an Agent as a result of such Agent
acting or (where so instructed) refraining from acting under this Agreement or
any of the other Loan Documents in accordance with the instructions of
Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6).


 


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


 


9.3          Independent Investigation by
Lenders; No Responsibility For Appraisal of
Creditworthiness.


 


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


 


9.4          Right to Indemnity.


 


Each Lender, in proportion
to its Pro Rata Share, severally agrees to indemnify each Agent and its
officers, directors, employees, agents, attorneys, professional advisors and
Affiliates to the extent that any such Person shall not have been reimbursed by
Company, for and


 


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against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including reasonable counsel fees and disbursements and
fees and disbursements of any financial advisor engaged by Agents) or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against an Agent or such other Person in exercising the
powers, rights and remedies of an Agent or performing duties of an Agent
hereunder or under the other Loan Documents or otherwise in its capacity as
Agent in any way relating to or arising out of this Agreement or the other Loan
Documents; provided that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of an Agent resulting solely from such
Agent’s gross negligence or willful misconduct as determined by a final
judgment of a court of competent jurisdiction. 
If any indemnity furnished to an Agent or any other such Person for any
purpose shall, in the opinion of such Agent, be insufficient or become
impaired, such Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.


 


9.5          Resignation of Agents;
Successor Administrative Agent and Swing Line Lender.


 


A.  Resignation; Successor Administrative Agent. 
Administrative Agent may resign at any time by giving 30 days’ prior
written notice thereof to Lenders and Company. 
Upon any such notice of resignation by Administrative Agent, Requisite
Lenders shall have the right, upon five Business Days’ notice to Company, to
appoint a successor Administrative Agent, with the written consent of Company,
which consent shall not be unreasonably withheld.  If no such successor shall have been so
appointed by Requisite Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of its
resignation, the retiring Administrative Agent may, on behalf of Lenders,
appoint a successor Administrative Agent. 
Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, that successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent and the retiring Administrative
Agent shall promptly (i) transfer to such successor Administrative Agent
all sums, Securities and other items of Collateral held under the Collateral
Documents, together with all records and other documents necessary or
appropriate in connection with the performance of the duties of the successor
Administrative Agent under the Loan Documents, and (ii) execute and
deliver to such successor Administrative Agent such amendments to financing
statements, and take such other actions, as may be necessary or appropriate in
connection with the assignment to such successor Administrative Agent of the
security interests created under the Collateral Documents, whereupon such
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder.  After any
retiring Administrative Agent’s resignation hereunder, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was an Administrative Agent under this Agreement.


 


B.  Successor Swing Line Lender.  Any
resignation of Administrative Agent pursuant to subsection 9.5A shall also
constitute the resignation of DBTCA or its successor as Swing Line Lender, and
any successor Administrative Agent appointed pursuant to subsection 9.5A shall,
upon its acceptance of such appointment, become the successor Swing Line Lender
for


 


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all purposes hereunder.  In such event (i) Company shall prepay
any outstanding Swing Line Loans made by the retiring Administrative Agent in
its capacity as Swing Line Lender, (ii) upon such prepayment, the retiring
Administrative Agent and Swing Line Lender shall surrender any Swing Line Note
held by it to Company for cancellation, and (iii) if so requested by the
successor Administrative Agent and Swing Line Lender in accordance with
subsection 2.1E, Company shall issue a Swing Line Note to the successor
Administrative Agent and Swing Line Lender substantially in the form of Exhibit
VI annexed hereto, in the amount of the Swing Line Loan Commitment then in
effect and with other appropriate insertions.


 


9.6          Collateral Documents and
Guaranties.


 


Each Lender (which term
shall include, for purposes of this subsection 9.6, any Swap Counterparty)
hereby further authorizes Administrative Agent, on behalf of and for the
benefit of Lenders, to enter into, and to be the agent for and representative
of Lenders under, each Collateral Document and the Subsidiary Guaranty, and
each Lender agrees to be bound by the terms of each Collateral Document and the
Subsidiary Guaranty; provided that Administrative Agent shall not (i)
enter into or consent to any material amendment, modification, termination or
waiver of any provision contained in any Collateral Document or the Subsidiary
Guaranty or (ii) release any Collateral (except as otherwise expressly
permitted or required pursuant to the terms of this Agreement or the applicable
Collateral Document), in each case without the prior consent of Requisite
Lenders (or, if required pursuant to subsection 10.6, all Lenders); provided
further, however, that, without further written consent or
authorization from Lenders, Administrative Agent may execute any documents or
instruments necessary to (a) release any Lien encumbering any item of
Collateral that is the subject of a sale or other disposition of assets
permitted by this Agreement or to which Requisite Lenders have otherwise
consented (or such greater number of Lenders as may be required pursuant to
Section 10.6), (b) release any Subsidiary Guarantor from the Subsidiary
Guaranty if all of the Capital Stock of such Subsidiary Guarantor is sold to
any Person (other than an Affiliate of Company) pursuant to a sale or other
disposition permitted hereunder or to which Requisite Lenders have otherwise consented
(or such greater number of Lenders as may be required pursuant to Section 10.6)
or (c) subordinate the Liens of Administrative Agent, on behalf of
Lenders, to any Liens permitted by subsection 7.2A(ii), (iii) or (iv) or to
other Liens permitted by subsection 7.2A as to which the Requisite Lenders have
consented.  Anything contained in any of
the Loan Documents to the contrary notwithstanding, Company, Administrative
Agent and each Lender hereby agree that (1) no Lender shall have any right
individually to realize upon any of the Collateral under any Collateral
Document or to enforce the Subsidiary Guaranty, it being understood and agreed
that all powers, rights and remedies under the Collateral Documents and the
Subsidiary Guaranty may be exercised solely by Administrative Agent for the
benefit of Lenders in accordance with the terms thereof, and (2) in the event
of a foreclosure by Administrative Agent on any of the Collateral pursuant to a
public or private sale, Administrative Agent or any Lender may be the purchaser
of any or all of such Collateral at any such sale and Administrative Agent, as
agent for and representative of Lenders (but not any Lender or Lenders in its
or their respective individual capacities unless Requisite Lenders shall otherwise
agree in writing) shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion


 


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of the Collateral sold at any such public sale,
to use and apply any of the Obligations as a credit on account of the purchase
price for any Collateral payable by Administrative Agent at such sale.


 


Without derogating from any
other authority granted to Administrative Agent herein or in the Collateral
Documents or any other document relating thereto, each Lender hereby
specifically (i) authorizes Administrative Agent to enter into pledge
agreements pursuant to this subsection 9.6 with respect to the Capital Stock of
all existing and future first-tier Foreign Subsidiaries, which pledge
agreements may be governed by the laws of each of the jurisdictions of
formation of such Foreign Subsidiaries, as agent on behalf of each of Lenders,
with the effect that Lenders each become a secured party thereunder or, where
relevant in a jurisdiction, as agent and trustee, with the effect that Lenders
each become a beneficiary of a trust and Administrative Agent has all the
rights, powers, discretions, protections and exemptions from liability set out
in the pledge agreements and (ii) except in connection with any such pledge
agreement for a jurisdiction in which Administrative Agent holds the Capital
Stock as agent and trustee for Lenders, appoints Administrative Agent as its
attorney-in-fact granting it the powers to execute each such pledge agreement
and any registrations of the security interest thereby created, in each case in
its name and on its behalf, with the effect that each Lender becomes a secured
party thereunder.  With respect to each
such pledge agreement, Administrative Agent has the power to sub-delegate to
third parties its powers as attorney-in-fact of each Lender.


 


9.7          Duties of Other Agents.


 


To the extent that any
Lender is identified in this Agreement as a co-agent, documentation agent or
syndication agent, such Lender shall not have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. 
Without limiting the foregoing, none of such Lenders shall have or be
deemed to have a fiduciary relationship with any Lender.


 


9.8          Administrative Agent May
File Proofs of Claim.


 


In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
Company or any of the Subsidiaries of Company, Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether Administrative Agent shall have made any demand on Company) shall be
entitled and empowered, by intervention in such proceeding or otherwise


 


(i)            to file and prove a claim for the whole
amount of principal and interest owing and unpaid in respect of the Loans and
any other Obligations that are owing and unpaid and to file such other papers
or documents as may be necessary or advisable in order to have the claims of
Lenders and Agents (including any claim for the reasonable compensation,
expenses, disbursements and advances of Lenders and Agents and their agents and
counsel and all other amounts due Lenders and Agents under subsections 2.3 and
10.2) allowed in such judicial proceeding, and


 


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(ii)           to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender to make such
payments to Administrative Agent and, in the event that Administrative Agent
shall consent to the making of such payments directly to Lenders, to pay to
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of Agents and their agents and counsel, and any
other amounts due Agents under subsections 2.3 and 10.2.


 


Nothing herein contained
shall be deemed to authorize Administrative Agent to authorize or consent to or
accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lenders or to authorize Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.


 


Section 10.            MISCELLANEOUS


 


10.1        Successors and Assigns;
Assignments and Participations in Loans and Letters of Credit.


 


A.  General.  This
Agreement shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and assigns of Lenders (it being understood that Lenders’ rights
of assignment are subject to the further provisions of this subsection
10.1).  Neither
Company’s rights or obligations hereunder nor any interest therein may
be assigned or delegated by Company without the prior written consent of all
Lenders (and any attempted assignment or transfer by Company without such
consent shall be null and void).  No
sale, assignment or transfer or participation of any Letter of Credit or any
participation therein may be made separately from a sale, assignment, transfer
or participation of a corresponding interest in the Revolving Loan Commitment
and the Revolving Loans of the Revolving Lender effecting such sale,
assignment, transfer or participation. 
Anything contained herein to the contrary notwithstanding, except as
provided in subsection 2.1A(iii) and subsection 10.5,
the Swing Line Loan Commitment and the Swing Line Loans of Swing Line Lender
may not be sold, assigned or transferred as described below to any Person other
than a successor Administrative Agent and Swing Line Lender to the extent
contemplated by subsection 9.5.  Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason
of this Agreement.


 


B.  Assignments.


 


(i)            Amounts and Terms of Assignments.  Any
Lender may assign to one or more Eligible Assignees all or any portion of its
rights and obligations under this Agreement; provided that
(a), except (1) in the case of an assignment of the entire remaining amount of the assigning Lender’s rights and
obligations under this Agreement


 


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or (2) in the case of
an assignment to a Lender or an Affiliate of a Lender or an Approved Fund of a
Lender, the aggregate amount of the Revolving Loan Exposure or Term Loan
Exposure, as the case may be, of the assigning Lender and the assignee subject
to each such assignment shall not be less than $1,000,000, in the case of any
assignment of a Revolving Loan, or $1,000,000, in the case of any assignment of
a Term Loan, unless each of Administrative Agent and, so long as no Event of
Default has occurred and is continuing, Company otherwise consents (each such
consent not to be unreasonably withheld or delayed), (b) 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, and any assignment of all or any portion
of a Revolving Loan Commitment, Revolving Loan or Letter of Credit
participation shall be made only as an assignment of the same proportionate
part of the assigning Lender’s Revolving Loan Commitment, Revolving Loans and
Letter of Credit participations, (c) the parties to each assignment shall
execute and deliver to Administrative Agent an Assignment Agreement, together
with a processing and recordation fee of $3,500 (unless the assignee is an
Affiliate or an Approved Fund of the assignor, in which case no fee shall be
required), and the Eligible Assignee, if it shall not be a Lender, shall
deliver to Administrative Agent information reasonably requested by
Administrative Agent, including such forms, certificates or other evidence, if
any, with respect to United States federal income tax withholding matters as
the assignee under such Assignment Agreement may be required to deliver to
Administrative Agent pursuant to subsection 2.7B(iv), (d), except in the case
of an assignment to another Lender or an Affiliate of a Lender or an Approved
Fund of a Lender, Administrative Agent and, if no Event of Default has occurred
and is continuing, Company, shall have consented thereto (which consent shall
not be unreasonably withheld or delayed) and (e) in the case of an assignment
to an Approved Fund of a Lender, if no Event of Default has occurred and is
continuing, promptly following such assignment, Company shall have received
notice thereof from Administrative Agent, which such notice shall be delivered
promptly upon the execution of an Assignment Agreement clearly identifying the
assignment to an Approved Fund.


 


Upon
such execution, delivery and consent, from and after the effective date
specified in such Assignment Agreement, (y) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment Agreement, shall have the
rights and obligations of, and shall become, a Lender hereunder and
(z) the assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment
Agreement, relinquish its rights (other than any rights which survive the
termination of this Agreement under subsection 10.9B) and be released from its
obligations under this Agreement (and, in the case of an Assignment Agreement
covering all or the remaining portion of an assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto;
provided that, anything contained in any of the Loan Documents to the
contrary notwithstanding, if such Lender is an Issuing Lender such Lender shall
continue to have all rights and obligations of an Issuing Lender until the
cancellation or expiration of any Letters of Credit issued by it


 


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and the reimbursement of any amounts drawn
thereunder).  The assigning Lender shall,
upon the effectiveness of such assignment or as promptly thereafter as
practicable, surrender its Notes, if any, to Administrative Agent for
cancellation, and thereupon new Notes shall, if so requested by the assignee
and/or the assigning Lender in accordance with subsection 2.1E, be issued to
the assignee and/or to the assigning Lender, substantially in the form of Exhibit
IV or Exhibit V annexed hereto, as the case may be, with appropriate
insertions, to reflect the amounts of the new Commitments and/or outstanding
Revolving Loans and/or outstanding Tranche B Term Loans, as the case may be, of
the assignee and/or the assigning Lender. 
Other than as provided in subsection 2.1A(iii) and subsection 10.5, any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection 10.1B 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 subsection 10.1C.


 


(ii)           Acceptance by Administrative Agent;
Recordation in Register.  Upon its receipt of an Assignment Agreement
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with the processing and recordation fee referred to
in subsection 10.1B(i) and any forms, certificates or other evidence with
respect to United States federal income tax withholding matters that such
assignee may be required to deliver to Administrative Agent pursuant to
subsection 2.7B(iv), Administrative Agent shall, if Administrative Agent and
Company have consented to the assignment evidenced thereby (in each case to the
extent such consent is required pursuant to subsection 10.1B(i)),
(a) accept such Assignment Agreement by executing a counterpart thereof as
provided therein (which acceptance shall evidence any required consent of
Administrative Agent to such assignment), (b) record the information
contained therein in the Register, and (c) give prompt notice thereof to
Company.  Administrative Agent shall
maintain a copy of each Assignment Agreement delivered to and accepted by it as
provided in this subsection 10.1B(ii).


 


(iii)          Deemed Consent by Company.  If
the consent of Company to an assignment or to an Eligible Assignee is required
hereunder (including a consent to an assignment which does not meet the minimum
assignment thresholds specified in subsection 10.1B(i)),
Company shall be deemed to have given its consent five Business Days after the
date notice thereof has been delivered by the assigning Lender (through
Administrative Agent) unless such consent is expressly refused by Company prior
to such fifth Business Day.


 


C.  Participations.  Any
Lender may, without the consent of, or notice to, Company or Administrative
Agent, sell participations to one or more Persons (other than a natural Person
or Company or any of its Affiliates) in all or a portion of such Lender’s
rights and/or obligations under this Agreement; 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) Company, Administrative Agent and
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that
such Lender shall retain the sole right


 


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to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; 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 directly affecting (i) the extension of the scheduled final
maturity date of any Loan allocated to such participation or (ii) a
reduction of the principal amount of or the rate of interest payable on any
Loan allocated to such participation. 
Subject to the further provisions of this subsection 10.1C, Company
agrees that each Participant shall be entitled to the benefits of subsections
2.6D and 2.7 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection 10.1B.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of subsection 10.4 as though
it were a Lender, provided such Participant agrees to be subject to subsection
10.5 as though it were a Lender.  A
Participant shall not be entitled to receive any greater payment under
subsections 2.6D and 2.7 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant unless the
sale of the participation to such Participant is made with Company’s prior
written consent.  No Participant shall be
entitled to the benefits of subsection 2.7 unless Company is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of Company, to comply with subsection 2.7B(iv) as though it were a
Lender.


 


D.  Pledges and Assignments.  Any
Lender may without the consent of the Administrative Agent or the Company at
any time pledge or assign a security interest in all or any portion of its
Loans, and the other Obligations owed to such Lender, to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to any Federal Reserve Bank; provided that (i) no
Lender shall be relieved of any of its obligations hereunder as a result of any
such assignment or pledge and (ii) in no event shall any assignee or
pledgee be considered to be a “Lender” or be entitled to require the assigning
Lender to take or omit to take any action hereunder.


 


E.  Information.  Each
Lender may furnish any information concerning Company and its Subsidiaries in
the possession of that Lender from time to time to assignees and participants
(including prospective assignees and participants), subject to subsection
10.19.


 


F.  Agreements of Lenders.  Each
Lender listed on the signature pages hereof hereby agrees, and each Lender that
becomes a party hereto pursuant to an Assignment Agreement shall be deemed to
agree, (i) that it is an Eligible Assignee; (ii) that it has experience and
expertise in the making of or purchasing loans such as the Loans; and (iii)
that it will make or purchase Loans for its own account in the ordinary course
of its business and without a view to distribution of such Loans within the
meaning of the Securities Act or the Exchange Act or other federal securities
laws (it being understood that, subject to the provisions of this subsection
10.1, the disposition of such Loans or any interests therein shall at all times
remain within its exclusive control).


 


10.2        Expenses.


 


Whether or not the
transactions contemplated hereby shall be consummated, Company agrees to pay
promptly (i) all reasonable and documented out-of-pocket costs and
expenses of negotiation, preparation and execution of the Loan Documents and
any consents,


 


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amendments, waivers or other modifications
thereto; (ii) all reasonable costs and expenses of furnishing all opinions
by counsel for Company (including any opinions requested by Agents or Lenders
as to any legal matters arising hereunder) and of Company’s performance of and
compliance with all agreements and conditions on its part to be performed or
complied with under this Agreement and the other Loan Documents including with
respect to confirming compliance with environmental, insurance and solvency
requirements; (iii) all reasonable fees, expenses and disbursements of
counsel to Administrative Agent (excluding allocated costs of internal counsel)
in connection with the negotiation, preparation, execution and administration
of the Loan Documents and any consents, amendments, waivers or other
modifications thereto and any other documents or matters requested by Company;
(iv) all costs and expenses of creating and perfecting Liens in favor of
Administrative Agent on behalf of Lenders pursuant to any Collateral Document,
including filing and recording fees, expenses and taxes, stamp or documentary
taxes, search fees, title insurance premiums, and reasonable fees, expenses and
disbursements of counsel to Administrative Agent and of counsel providing any
opinions that Administrative Agent or Requisite Lenders may request in respect
of the Collateral Documents or the Liens created pursuant thereto; (v) all
reasonable costs and expenses of obtaining and reviewing any appraisals
provided for under subsection 6.9B and any environmental audits or reports
provided for under subsection 6.7C; (vi) all costs and expenses incurred
by Administrative Agent in connection with the custody or preservation of any
of the Collateral; (vii) all other reasonable costs and expenses incurred
by Administrative Agent in connection with the syndication of the Commitments;
(viii) all costs and expenses, including reasonable attorneys’ fees and fees,
costs and expenses of accountants, advisors and consultants, incurred by
Administrative Agent and its counsel relating to efforts to (a) evaluate or
assess any Loan Party, its business or financial condition and (b) protect,
evaluate, assess or dispose of any of the Collateral; and (ix) all costs and
expenses, including reasonable attorneys’ fees, fees, costs and expenses of accountants,
advisors and consultants and costs of settlement, incurred by Administrative
Agent and any Lenders in enforcing any Obligations of or in collecting any
payments due from any Loan Party hereunder or under the other Loan Documents
(including in connection with the sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Loan
Documents) or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a “work-out” or
pursuant to any insolvency or bankruptcy proceedings.


 


10.3        Indemnity.


 


In addition to the payment
of expenses pursuant to subsection 10.2, whether or not the transactions
contemplated hereby shall be consummated, Company agrees to defend (subject to
Indemnitees’ selection of counsel), indemnify, pay and hold harmless Agents and
Lenders (including Issuing Lenders), and the officers, directors, employees,
agents, trustees and Affiliates of Agents and Lenders (collectively called the “Indemnitees”), from and against any and
all Indemnified Liabilities (as hereinafter defined); provided that
Company shall not have any obligation to any Indemnitee hereunder with respect
to any Indemnified Liabilities to the extent such Indemnified Liabilities arise
solely from the gross negligence or willful misconduct of that Indemnitee as
determined by a final judgment of a court of competent jurisdiction.


 


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As used herein, “Indemnified Liabilities” means,
collectively, any and all liabilities, obligations, losses, damages (including
natural resource damages), penalties, actions, judgments, suits, claims
(including Environmental Claims), costs (including the costs of any
investigation, study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove, remediate, clean up
or abate any Hazardous Materials Activity), reasonable and documented expenses
and disbursements of any kind or nature whatsoever (including the reasonable
fees and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party
or a potential party thereto, and any fees or expenses incurred by Indemnitees
in enforcing this indemnity), whether direct, indirect or consequential and
whether based on any federal, state or foreign laws, statutes, rules or
regulations (including securities and commercial laws, statutes, rules or
regulations and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or asserted against
any such Indemnitee, in any manner relating to or arising out of (i) this
Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby (including Lenders’ agreement to make the Loans hereunder or the use
or intended use of the proceeds thereof or the issuance of Letters of Credit
hereunder or the use or intended use of any thereof, the failure of an Issuing
Lender to honor a drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto Government Authority, or any enforcement of any of the Loan Documents
(including any sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Subsidiary Guaranty)), or (ii) any
Environmental Claim or any Hazardous Materials Activity relating to or arising
from, directly or indirectly, any past or present activity, operation, land
ownership, or practice of Company or any of its Subsidiaries.


 


To the extent that the
undertakings to defend, indemnify, pay and hold harmless set forth in this
subsection 10.3 may be unenforceable in whole or in part because they are
violative of any law or public policy, Company shall contribute the maximum
portion that it is permitted to pay and satisfy under applicable law to the
payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees
or any of them.


 


10.4        Set-Off.


 


In addition to any rights
now or hereafter granted under applicable law and not by way of limitation of
any such rights, regardless of the adequacy of any Collateral, upon the occurrence
and during the continuation of any Event of Default each of the Lenders and
their Affiliates is hereby authorized by Company at any time or from time to
time, without notice to Company or to any other Person (other than
Administrative Agent), any such notice being hereby expressly waived, to set
off and to appropriate and to apply any and all deposits (general or special,
time or demand, provisional or final, including Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not including trust
accounts) and any other Indebtedness at any time held or owing by that Lender
or any Affiliate of that Lender to or for the credit or the account of Company
and each other Loan Party against and on account of the Obligations of Company
or any other Loan Party to that Lender (or any Affiliate of that Lender) under
this Agreement, the Letters of Credit and participations therein and the other
Loan Documents, including all claims of any nature or description arising out
of or connected with this


 


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Agreement, the Letters of Credit and
participations therein or any other Loan Document, irrespective of whether or
not (i) that Lender shall have made any demand hereunder or (ii) the principal
of or the interest on the Loans or any amounts in respect of the Letters of
Credit or any other amounts due hereunder shall have become due and payable
pursuant to Section 8 and although said obligations and liabilities, or
any of them, may be contingent or unmatured.


 


10.5        Ratable Sharing.


 


Lenders hereby agree among
themselves that if any of them shall, whether by voluntary or mandatory payment
(other than a payment or prepayment of Loans made and applied in accordance
with the terms of this Agreement), by realization upon security, through the
exercise of any right of set-off or banker’s lien, by counterclaim or cross
action or by the enforcement of any right under the Loan Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to that Lender hereunder
or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) that is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts
Due to such other Lender, then the Lender receiving such proportionately
greater payment shall, unless such proportionately greater payment is required
by the terms of this Agreement, (i) notify Administrative Agent and each
other Lender of the receipt of such payment and (ii) apply a portion of
such payment to purchase assignments (which it shall be deemed to have
purchased from each seller of an assignment simultaneously upon the receipt by
such seller of its portion of such payment) of the Aggregate Amounts Due to the
other Lenders so that all such recoveries of Aggregate Amounts Due shall be
shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided
that (A) if all or part of such proportionately greater payment received by
such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy
or reorganization of Company or otherwise, those purchases shall be rescinded
and the purchase prices paid for such assignments shall be returned to such
purchasing Lender ratably to the extent of such recovery, but without interest
and (B) the foregoing provisions shall not apply to (1) any payment made by
Company pursuant to and in accordance with the express terms of this Agreement
or (2) any payment obtained by a Lender as consideration for the assignment
(other than an assignment pursuant to this subsection 10.5) of or the sale of a
participation in any of its Obligations to any Eligible Assignee or Participant
pursuant to subsection 10.1B.  Company
expressly consents to the foregoing arrangement and agrees that any purchaser
of an assignment so purchased may exercise any and all rights of a Lender as to
such assignment as fully as if that Lender had complied with the provisions of
subsection 10.1B with respect to such assignment.  In order to further evidence such assignment
(and without prejudice to the effectiveness of the assignment provisions set
forth above), each purchasing Lender and each selling Lender agree to enter
into an Assignment Agreement at the request of a selling Lender or a purchasing
Lender, as the case may be, in form and substance reasonably satisfactory to
each such Lender.


 


10.6        Amendments and Waivers.


 


Unless otherwise provided
for in this Agreement, no amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, and no consent to any


 


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departure by Company therefrom, shall in any event be
effective without the written concurrence of Requisite Lenders; provided
that no such amendment, modification, termination, waiver or consent shall, without
the consent of:


 


(a)           each Lender with Obligations directly
affected (whose consent shall be required for any such amendment, modification,
termination or waiver in addition to that of Requisite Lenders) (1) reduce or
forgive the principal amount of any Loan, (2) postpone the scheduled final
maturity date of any Loan, (3) postpone the date on which any principal,
interest or any fees are payable, (4) decrease the interest rate borne by any
Loan (other than any waiver of any increase in the interest rate applicable to
any of the Loans pursuant to subsection 2.2E) or the amount of any fees payable
hereunder (other than any waiver of any increase in the fees applicable to
Letters of Credit pursuant to subsection 3.2 following an Event of Default)
(excluding any change in the manner in which any financial ratio used in
determining any interest rate or fee is calculated that would result in a
reduction of any such rate or fee), (5) reduce the amount or postpone the due
date of any amount payable in respect of any Letter of Credit, (6) extend the
expiration date of any Letter of Credit beyond the Revolving Loan Commitment
Termination Date, (7) extend the Revolving Commitment Termination Date or (8)
change in any manner the obligations of Revolving Lenders relating to the
purchase of participations in Letters of Credit;


 


(b)           each Lender, (1) change in any manner
the definition of “Pro Rata Share” or the definition of “Requisite Lenders”
(except for any changes resulting solely from an increase in the aggregate amount
of the Commitments approved by Requisite Lenders), (2) change in any manner any
provision of this Agreement that, by its terms, expressly requires the approval
or concurrence of all Lenders, (3) increase the maximum duration of
Interest Periods permitted hereunder, (4) release any Lien granted in favor of
Administrative Agent with respect to 25% or more in aggregate fair market value
of the Collateral or release any Subsidiary Guarantor from its obligations
under the Subsidiary Guaranty, in each case other than in accordance with the
terms of the Loan Documents, or (5) change in any manner or waive the
provisions contained in subsection 2.4C(iii), subsection 2.4D, subsection 8.1,
subsection 10.5 or this subsection 10.6.


 


In addition, no amendment,
modification, termination or waiver of any provision (i) of any Note shall be
effective without the written concurrence of the Lender which is the holder of
that Note, (ii) of subsection 2.1A(iii) or of any other provision of this
Agreement relating to the Swing Line Loan Commitment or the Swing Line Loans
shall be effective without the written concurrence of Swing Line Lender, (iii)
of Section 3 shall be effective without the written concurrence of
Administrative Agent and, with respect to the purchase of participations in
Letters of Credit, without the written concurrence of each Issuing Lender that
has issued an outstanding Letter of Credit or has not been reimbursed for a
payment under a Letter of Credit, (iv) of Section 9 or of any other
provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of Administrative Agent shall be effective without the
written concurrence of Administrative Agent, (v) that increases the amount of a
Commitment of


 


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a Lender shall be effective without the
consent of such Lender and (vi) that increases the maximum amount of Letters of
Credit shall be effective without the consent of Revolving Lenders having or
holding more than 50% of the Revolving Loan Exposure of all Lenders.


 


Administrative Agent may,
but shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of that Lender.  Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was
given.  No notice to or demand on Company
in any case shall entitle Company to any other or further notice or demand in
similar or other circumstances.  Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 10.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by Company, on Company.


 


Notwithstanding the
foregoing, technical and conforming modifications to the Loan Documents may be
made with the consent of Company and the Administrative Agent to the extent
necessary to integrate any Incremental Term Loan Commitments or Incremental
Revolving Facility Commitments on substantially the same basis as the Term
Loans or Revolving Loans, as applicable.


 


10.7        Independence of Covenants.


 


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


 


10.8        Notices; Effectiveness of
Signatures.


 


Unless otherwise
specifically provided herein, any notice or other communication herein required
or permitted to be given shall be in writing and may be personally served, or
sent by telefacsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person, delivered by courier
service and signed for against receipt thereof, upon receipt of telefacsimile
in complete and legible form, or three Business Days after depositing it in the
United States mail with postage prepaid and properly addressed; provided
that notices to Administrative Agent, Swing Line Lender and any Issuing Lender
shall not be effective until received. 
For the purposes hereof, the address of each party hereto shall be as
set forth under such party’s name on the signature pages hereof or (i) as
to Company and Administrative Agent, such other address as shall be designated
by such Person in a written notice delivered to the other parties hereto and
(ii) as to each other party, such other address as shall be designated by
such party in a written notice delivered to Administrative Agent.  Electronic mail and Internet and intranet
websites may be used to distribute routine communications, such as financial
statements and other information as provided in subsection 6.1.  Administrative Agent or Company may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved


 


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by it, provided that approval of such
procedures may be limited to particular notices or communications.


 


Loan Documents and notices
under the Loan Documents may be transmitted and/or signed by telefacsimile and
by signatures delivered in ‘PDF’ format by electronic mail.  The effectiveness of any such documents and
signatures shall, subject to applicable law, have the same force and effect as
an original copy with manual signatures and shall be binding on all Loan
Parties, Agents and Lenders.  Administrative Agent may also require that any
such documents and signature be confirmed by a manually-signed original
thereof; provided, however, that the failure to request or
deliver any such manually-signed original shall not affect the effectiveness of
any facsimile document or signature.


 


10.9        Survival of Representations,
Warranties and Agreements.


 


A.  All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the
Loans and the issuance of the Letters of Credit hereunder.


 


B.  B.  Notwithstanding anything in
this Agreement or implied by law to the contrary, the agreements of Company set
forth in subsections 2.6D, 2.7, 10.2, 10.3, 10.4, 10.17 and 10.18 and the
agreements of Lenders set forth in subsections 9.2C, 9.4, 10.5, 10.14, 10.17,
10.18 and 10.19 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination of this Agreement.


 


10.10      Failure or Indulgence Not
Waiver; Remedies Cumulative.


 


No failure or delay on the
part of an Agent or any Lender in the exercise of any power, right or privilege
hereunder or under any other Loan Document shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power,
right or privilege.  All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.


 


10.11      Marshalling; Payments Set
Aside.


 


Neither any Agent nor any
Lender shall be under any obligation to marshal any assets in favor of Company
or any other party or against or in payment of any or all of the
Obligations.  To the extent that Company
makes a payment or payments to Administrative Agent or Lenders (or to
Administrative Agent for the benefit of Lenders), or Agents or Lenders enforce
any security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under
any bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally


 


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intended to be satisfied, and all Liens, rights and
remedies therefor or related thereto, shall be revived and continued in full
force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.


 


10.12      Severability.


 


In case any provision in or
obligation under this Agreement or the Notes shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.


 


10.13      Obligations Several;
Independent Nature of Lenders’ Rights; Damage Waiver.


 


The obligations of Lenders
hereunder are several and no Lender shall be responsible for the obligations or
Commitments of any other Lender hereunder. 
Nothing contained herein or in any other Loan Document, and no action taken
by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders,
or Lenders and Company, as a partnership, an association, a Joint Venture or
any other kind of entity. The amounts payable at any time hereunder to each
Lender shall be a separate and independent debt, and, subject to
subsection 9.6, each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any
other Lender to be joined as an additional party in any proceeding for such
purpose.


 


To the extent permitted by
law, Company shall not assert, and 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 (including, without
limitation, subsection 2.1C hereof), any other Loan Document, any transaction
contemplated by the Loan Documents, any Loan or the use of proceeds
thereof.  No Indemnitee shall be liable
for any damages arising from the use by unintended recipients of any
information or other materials obtained through the Internet, Intralinks or
similar information transmission systems in connection with the Loan Documents
or the transactions contemplated thereby; provided, however, that
the foregoing shall not apply to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such damages result from the
gross negligence or willful misconduct of such Indemnitee.


 


10.14      Intentionally Omitted.


 


10.15      Applicable Law.


 


THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH
IN ANY SUCH LOAN DOCUMENT), AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CHOICE OF LAW RULES (OTHER THAN


 


135





















 


SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).


 


10.16      Construction of Agreement;
Nature of Relationship.


 


Each of the parties hereto
acknowledges that (i) it has been represented by counsel in the negotiation and
documentation of the terms of this Agreement, (ii) it has had full and fair
opportunity to review and revise the terms of this Agreement, (iii) this
Agreement has been drafted jointly by all of the parties hereto, and (iv)
neither Administrative Agent nor any Lender or other Agent has any fiduciary
relationship with or duty to Company arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between
Administrative Agent, the other Agents and Lenders, on one hand, and Company,
on the other hand, in connection herewith or therewith is solely that of debtor
and creditor.  Accordingly, each of the
parties hereto acknowledges and agrees that the terms of this Agreement shall
not be construed against or in favor of another party.


 


10.17      Consent to Jurisdiction and
Service of Process.


 


ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY, ANY AGENT OR ANY LENDER ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
OBLIGATIONS HEREUNDER AND THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK.  BY EXECUTING AND DELIVERING THIS AGREEMENT,
COMPANY, EACH AGENT AND EACH LENDER, EACH FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY


 


(I)            ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;


 


(II)           WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;


 


(III)         AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO IT AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SUBSECTION 10.8;


 


(IV)         AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION
OVER IT IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;


 


(V)          AGREES THAT COMPANY, EACH
AGENT AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY,


 


136





















 


EACH AGENT
AND EACH LENDER IN THE COURTS OF ANY OTHER JURISDICTION; AND


 


(VI)         AGREES THAT THE PROVISIONS
OF THIS SUBSECTION 10.17 RELATING TO JURISDICTION AND VENUE SHALL BE BINDING
AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL
OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.


 


10.18      Waiver of Jury Trial.


 


EACH OF THE
PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED.  The
scope of this waiver is intended to be all-encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this
transaction, including contract claims, tort claims, breach of duty claims and
all other common law and statutory claims. 
Each party hereto acknowledges that this waiver is a material inducement
to enter into a business relationship, that each has
already relied on this waiver in entering into this Agreement, and that each
will continue to rely on this waiver in their related future dealings.  Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER.  In the event
of litigation, this Agreement may be filed as a written consent to a trial by
the court.


 


10.19      Confidentiality.


 


Each Lender shall hold all
non-public information obtained pursuant to the requirements of this Agreement
that has been identified in writing as confidential by Company in accordance
with such Lender’s customary procedures for handling confidential information
of this nature, it being understood and agreed by Company that in any event a
Lender may make disclosures (a) to its and its Affiliates’ directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such information and instructed
to keep such information confidential), (b) to the extent requested by any
Government Authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, (e) in connection with the exercise of any


 


137





















 


remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same
as those of this subsection 10.19, to (i) any Eligible Assignee of or
participant in, or any prospective Eligible Assignee of or Participant in, any
of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty’s or prospective counterparty’s professional advisor)
to any credit derivative transaction relating to obligations of Company,
(g) with the consent of Company, (h) to the extent such information
(i) becomes publicly available other than as a result of a breach of this
subsection 10.19 or (ii) becomes available to Administrative Agent or any
Lender on a nonconfidential basis from a source other than Company which source
is not known by Administrative Agent to be subject to a confidentiality
agreement in respect thereof or (i) to the National Association of
Insurance Commissioners or any other similar organization or any nationally
recognized rating agency that requires access to information about a Lender’s
or its Affiliates’ investment portfolio in connection with ratings issued with
respect to such Lender or its Affiliates and that no written or oral
communications from counsel to an Agent and no information that is or is
designated as privileged or as attorney work product may be disclosed to any
Person unless such Person is a Lender or a Participant hereunder; provided
that, unless specifically prohibited by applicable law or court order, each
Lender shall notify Company of any request by any Government Authority or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such Government
Authority) for disclosure of any such non-public information prior to
disclosure of such information; and provided, further that in no
event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries.  With the written consent of Company, which
consent shall not be unreasonably withheld, Administrative Agent and Lenders
may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to Administrative Agent and Lenders, and
Administrative Agent or any of its Affiliates may place customary “tombstone”
advertisements relating hereto in publications (including publications
circulated in electronic form) of its choice at its own expense.


 


10.20      Counterparts; Effectiveness.


 


This Agreement and any
amendments, waivers, consents or supplements hereto or in connection herewith
may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed and delivered,
including by facsimile, shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.  This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto and receipt by Company and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof.


 


138





















 


10.21      USA Patriot Act.


 


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


 


[Remainder
of page intentionally left blank]


 


139





















 


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


 


	
   

  	
  COMPANY:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  HEXCEL
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Ira J. Krakower

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
  Two
  Stamford Plaza

  
	
   

  	
   

  	
  281
  Tresser Blvd.

  
	
   

  	
   

  	
  Stamford,
  CT 06901

  
	
   

  	
   

  	
   

  
	
   

  	
  LENDERS:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DEUTSCHE
  BANK TRUST COMPANY

  AMERICAS

  
	
   

  	
   

  	
  individually and as
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Susan LeFevre

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Paul O’Leary

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
  60
  Wall Street

  
	
   

  	
   

  	
  MS
  NYC60-4305

  
	
   

  	
   

  	
  New
  York, NY 10005

  
	
   

  	
   

  	
  Attn:
  Marguerite Sutton

  
	
   

  	
   

  	
  (212)
  280-6150

  
							



 





















 


	
   

  	
   

  	
  GOLDMAN
  SACHS CREDIT PARTNERS L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ William Archer

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  85
  Broad St.

  
	
   

  	
   

  	
  New York, NY 10004

  



 





















 


	
   

  	
   

  	
  MERRILL
  LYNCH CAPITAL, A DIVISION

  OF MERRILL LYNCH BUSINESS

  FINANCIALS ERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Kelli O’Connell

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  222
  North LaSalle Street

  
	
   

  	
   

  	
  15th
  Floor

  
	
   

  	
   

  	
  Chicago,
  IL 60601

  



 





















 


	
   

  	
   

  	
  FLEET
  NATIONAL BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Kenneth S. Struglia

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  100
  Federal Street

  
	
   

  	
   

  	
  MA5-100-09-03

  
	
   

  	
   

  	
  Boston,
  MA 02110 

  



 





















 


	
   

  	
   

  	
  ISRAEL
  DISCOUNT BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Andy Ballta

  	
   

  
	
   

  	
   

  	
  Title:

  	
  VP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Ronald Bongiovanni

  	
   

  
	
   

  	
   

  	
  Title:

  	
  SVP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  100
  Federal Street

  
	
   

  	
   

  	
  MA5-100-09-03

  
	
   

  	
   

  	
  Boston,
  MA 02110 

  
						



 





















 


	
   

  	
   

  	
  LASALLE
  BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Lincoln Schoff

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LaSalle
  Bank N.A.

  
	
   

  	
   

  	
  301
  Merritt 7, 5th Fl.

  
	
   

  	
   

  	
  Norwalk,
  CT 06851

  



 





















 


	
   

  	
   

  	
  RZB
  FINANCE LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Christoph Hoedl

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Group Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Juan M. Csillagi

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Group Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  24
  Grassy Plain Street

  
	
   

  	
   

  	
  Bethel,
  CT 06801

  
	
   

  	
   

  	
  Attn:
  John A. Valiska

  
	
   

  	
   

  	
  Telephone:
  203-207-7722

  
	
   

  	
   

  	
  Fax:
  203-744-6474

  



 





















 


	
   

  	
  ISSUING
  LENDER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FLEET
  NATIONAL BANK, as an Issuing Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Kenneth S. Struglia

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  100
  Federal Street

  
	
   

  	
   

  	
  MA5-100-09-03

  
	
   

  	
   

  	
  Boston,
  MA 02110

  



 





















 


	
   

  	
   

  	
  CREDIT
  SUISSE FIRST BOSTON, ACTING

  THROUGH ITS CAYMAN ISLANDS

  BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karl Studer

  	
   

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karim Blasetti

  	
   

  
	
   

  	
  Title:

  	
  Associate

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  	
  Eleven Madison Avenue

  
	
   

  	
   

  	
  New York, NY 10010

  
						



 





















 


	
   

  	
   

  	
  GENERAL
  ELECTRIC CAPITAL

  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mel Nishiwaki

  	
   

  
	
   

  	
  Title:

  	
  Duly Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  	
  201 Merritt 7

  
	
   

  	
   

  	
  Norwalk, CT 06856 

  
						



 





















 


	
   

  	
   

  	
  WACHOVIA
  BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James Travagline

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  	
  1339 Chestnut St.

  
	
   

  	
   

  	
  Widener Bldg., 12th
  Floor – PA4152

  
	
   

  	
   

  	
  Philadelphia, PA 19107 

  
					



 





















 


	
   

  	
   

  	
  NORTH
  FORK BUSINESS CAPITAL

  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steve Goetschius

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  	
  275 Broad Hollow Road

  
	
   

  	
   

  	
  Melville, New York 11747

  
	
   

  	
   

  	
  Attn: Vidya Singh

  
	
   

  	
   

  	
  (631) 844-6962

  
						



 





















 


	
   

  	
   

  	
  SOVEREIGN
  BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Janet Lynch

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  	
  Janet Lynch, Vice
  President

  
	
   

  	
   

  	
  Sovereign Bank

  
	
   

  	
   

  	
  1010 Farmington Avenue

  
	
   

  	
   

  	
  West Hartford, CT 06107

  
						



 





















 


	
   

  	
   

  	
  WEBSTER
  BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Friedrich N. Wilms

  	
   

  
	
   

  	
  Title:

  	
  Vice President &
  Relationship Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  	
  281 Tresser Boulevard, 4th
  Floor

  
	
   

  	
   

  	
  Stamford, CT 06901

  
	
   

  	
   

  	
  fwilms@websterbank.com