Exhibit 10.1


 


EXECUTION COPY


 




 





CREDIT
AGREEMENT



Dated as of November 22, 2005



among



ACCELLENT MERGER SUB INC.,



ACCELLENT INC.,

as Borrower



ACCELLENT ACQUISITION CORP.,

as Holdings 



The Several Lenders

from Time to Time Parties Hereto


JPMORGAN CHASE BANK, N.A.

as Administrative Agent,



J.P. MORGAN SECURITIES INC.,

as Joint Lead Arranger and Joint Bookrunner,



CREDIT SUISSE,

as Joint Lead Arranger and Joint Bookrunner and Syndication Agent




and



LEHMAN COMMERCIAL PAPER INC.,

as Documentation Agent


 


Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10005




 





 





















 


TABLE OF
CONTENTS


 


	
  SECTION 1.

  	
  Definitions

  	
   

  
	
  1.1.

  	
  Defined Terms

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  Amount and Terms of Credit

  	
   

  
	
  2.1.

  	
  Commitments

  	
   

  
	
  2.2.

  	
  Minimum Amount of Each Borrowing; Maximum Number of Borrowings

  	
   

  
	
  2.3.

  	
  Notice of Borrowing

  	
   

  
	
  2.4.

  	
  Disbursement of Funds

  	
   

  
	
  2.5.

  	
  Repayment of Loans; Evidence of Debt

  	
   

  
	
  2.6.

  	
  Conversions and Continuations

  	
   

  
	
  2.7.

  	
  Pro Rata Borrowings

  	
   

  
	
  2.8.

  	
  Interest

  	
   

  
	
  2.9.

  	
  Interest Periods

  	
   

  
	
  2.10.

  	
  Increased Costs, Illegality, etc

  	
   

  
	
  2.11.

  	
  Compensation

  	
   

  
	
  2.12.

  	
  Change of Lending Office

  	
   

  
	
  2.13.

  	
  Notice of Certain Costs

  	
   

  
	
  2.14.

  	
  Incremental Facilities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  Letters of Credit

  	
   

  
	
  3.1.

  	
  Letters of Credit

  	
   

  
	
  3.2.

  	
  Letter of Credit Requests

  	
   

  
	
  3.3.

  	
  Letter of Credit Participations

  	
   

  
	
  3.4.

  	
  Agreement to Repay Letter of Credit
  Drawings

  	
   

  
	
  3.5.

  	
  Increased Costs

  	
   

  
	
  3.6.

  	
  Successor Letter of Credit Issuer

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  Fees; Commitments

  	
   

  
	
  4.1.

  	
  Fees

  	
   

  
	
  4.2.

  	
  Voluntary Reduction of Revolving Credit Commitments

  	
   

  
	
  4.3.

  	
  Mandatory Termination of Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  Payments

  	
   

  
	
  5.1.

  	
  Voluntary Prepayments

  	
   

  
	
  5.2.

  	
  Mandatory Prepayments

  	
   

  
	
  5.3.

  	
  Method and Place of Payment.

  	
   

  
	
  5.4.

  	
  Net Payments

  	
   

  
	
  5.5.

  	
  Computations of Interest and Fees

  	
   

  
	
  5.6.

  	
  Limit on Rate of Interest

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  Conditions Precedent to Initial Borrowing

  	
   

  
	
  6.1.

  	
  Credit Documents

  	
   

  
	
  6.2.

  	
  Collateral

  	
   

  
	
  6.3.

  	
  Legal Opinions

  	
   

  



 


i





















 


	
  6.4.

  	
  No Default

  	
   

  
	
  6.5.

  	
  Subordinated Notes

  	
   

  
	
  6.6.

  	
  Equity Proceeds

  	
   

  
	
  6.7.

  	
  Closing Certificates

  	
   

  
	
  6.8.

  	
  Corporate Proceedings of Each Credit Party

  	
   

  
	
  6.9.

  	
  Corporate Documents

  	
   

  
	
  6.10.

  	
  Fees

  	
   

  
	
  6.11.

  	
  Target
  Material Adverse Effect

  	
   

  
	
  6.12.

  	
  Acquisition and Merger/Related Agreements

  	
   

  
	
  6.13.

  	
  Solvency Certificate

  	
   

  
	
  6.14.

  	
  [Reserved]

  	
   

  
	
  6.15.

  	
  Financial Statements

  	
   

  
	
  6.16.

  	
  Tender Offer/Refinancing

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  Conditions Precedent to All Credit Events

  	
   

  
	
  7.1.

  	
  No Default; Representations and Warranties

  	
   

  
	
  7.2.

  	
  Notice of Borrowing; Letter of Credit
  Request

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  Representations, Warranties and Agreements

  	
   

  
	
  8.1.

  	
  Corporate Status

  	
   

  
	
  8.2.

  	
  Corporate Power and Authority

  	
   

  
	
  8.3.

  	
  No Violation

  	
   

  
	
  8.4.

  	
  Litigation

  	
   

  
	
  8.5.

  	
  Margin Regulations

  	
   

  
	
  8.6.

  	
  Governmental Approvals

  	
   

  
	
  8.7.

  	
  Investment Company Act/Public Utility Holding Company Act

  	
   

  
	
  8.8.

  	
  True and Complete Disclosure

  	
   

  
	
  8.9.

  	
  Financial Condition; Financial Statements

  	
   

  
	
  8.10.

  	
  Tax Returns and Payments

  	
   

  
	
  8.11.

  	
  Compliance with ERISA

  	
   

  
	
  8.12.

  	
  Subsidiaries

  	
   

  
	
  8.13.

  	
  Patents, etc

  	
   

  
	
  8.14.

  	
  Environmental Laws

  	
   

  
	
  8.15.

  	
  Properties

  	
   

  
	
  8.16.

  	
  Solvency

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  Affirmative Covenants

  	
   

  
	
  9.1.

  	
  Information Covenants

  	
   

  
	
  9.2.

  	
  Books, Records and Inspections

  	
   

  
	
  9.3.

  	
  Maintenance of Insurance

  	
   

  
	
  9.4.

  	
  Payment of Taxes

  	
   

  
	
  9.5.

  	
  Consolidated Corporate Franchises

  	
   

  
	
  9.6.

  	
  Compliance with Statutes, Obligations, etc

  	
   

  
	
  9.7.

  	
  ERISA

  	
   

  
	
  9.8.

  	
  Good Repair

  	
   

  
	
  9.9.

  	
  Transactions with Affiliates

  	
   

  
	
  9.10.

  	
  End of Fiscal Years; Fiscal Quarters

  	
   

  
	
  9.11.

  	
  Additional Guarantors, Grantors and Pledgors

  	
   

  



 


ii





















 


	
  9.12.

  	
  Pledges of Additional Stock and Evidence of
  Indebtedness

  	
   

  
	
  9.13.

  	
  Use of Proceeds

  	
   

  
	
  9.14.

  	
  Changes in Business

  	
   

  
	
  9.15.

  	
  Further Assurances

  	
   

  
	
  9.16.

  	
  Ratings

  	
   

  
	
  9.17.

  	
  Post-Closing Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  Negative Covenants

  	
   

  
	
  10.1.

  	
  Limitation on Indebtedness

  	
   

  
	
  10.2.

  	
  Limitation on Liens

  	
   

  
	
  10.3.

  	
  Limitation on Fundamental Changes

  	
   

  
	
  10.4.

  	
  Limitation on Sale of Assets

  	
   

  
	
  10.5.

  	
  Limitation on Investments

  	
   

  
	
  10.6.

  	
  Limitation on Dividends

  	
   

  
	
  10.7.

  	
  Limitations on Debt Payments and Amendments

  	
   

  
	
  10.8.

  	
  Limitations on Sale Leasebacks

  	
   

  
	
  10.9.

  	
  Consolidated Net Debt to Consolidated EBITDA Ratio

  	
   

  
	
  10.10.

  	
  Consolidated EBITDA to Consolidated
  Interest Expense Ratio

  	
   

  
	
  10.11.

  	
  Capital Expenditures

  	
   

  
	
  10.12.

  	
  Limitation on Activities of Holdings

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  Events of Default

  	
   

  
	
  11.1.

  	
  Payments

  	
   

  
	
  11.2.

  	
  Representations, etc

  	
   

  
	
  11.3.

  	
  Covenants

  	
   

  
	
  11.4.

  	
  Default Under Other Agreements

  	
   

  
	
  11.5.

  	
  Bankruptcy, etc

  	
   

  
	
  11.6.

  	
  ERISA

  	
   

  
	
  11.7.

  	
  Guarantee

  	
   

  
	
  11.8.

  	
  Pledge Agreement

  	
   

  
	
  11.9.

  	
  Security Agreement

  	
   

  
	
  11.10.

  	
  Mortgages

  	
   

  
	
  11.11.

  	
  Subordination

  	
   

  
	
  11.12.

  	
  Judgments

  	
   

  
	
  11.13.

  	
  Change of Control

  	
   

  
	
  11.14.

  	
  Borrower’s Right to Cure

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  The Administrative Agent

  	
   

  
	
  12.1.

  	
  Appointment

  	
   

  
	
  12.2.

  	
  Delegation of Duties

  	
   

  
	
  12.3.

  	
  Exculpatory Provisions

  	
   

  
	
  12.4.

  	
  Reliance by Administrative Agent

  	
   

  
	
  12.5.

  	
  Notice of Default

  	
   

  
	
  12.6.

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
   

  
	
  12.7.

  	
  Indemnification

  	
   

  
	
  12.8.

  	
  Administrative Agent in its Individual Capacity

  	
   

  
	
  12.9.

  	
  Successor Agent

  	
   

  
	
  12.10.

  	
  Withholding Tax

  	
   

  



 


iii





















 


	
  SECTION 13.

  	
  Miscellaneous

  	
   

  
	
  13.1.

  	
  Amendments and Waivers

  	
   

  
	
  13.2.

  	
  Notices

  	
   

  
	
  13.3.

  	
  No Waiver; Cumulative Remedies

  	
   

  
	
  13.4.

  	
  Survival of Representations and Warranties

  	
   

  
	
  13.5.

  	
  Payment of Expenses and Taxes

  	
   

  
	
  13.6.

  	
  Successors and Assigns; Participations and
  Assignments

  	
   

  
	
  13.7.

  	
  Replacements of Lenders under Certain
  Circumstances/Non-Consenting Lenders

  	
   

  
	
  13.8.

  	
  Adjustments; Set-off

  	
   

  
	
  13.9.

  	
  Counterparts

  	
   

  
	
  13.10.

  	
  Severability

  	
   

  
	
  13.11.

  	
  Integration

  	
   

  
	
  13.12.

  	
  GOVERNING LAW

  	
   

  
	
  13.13.

  	
  Submission to Jurisdiction; Waivers

  	
   

  
	
  13.14.

  	
  Acknowledgments

  	
   

  
	
  13.15.

  	
  WAIVERS OF JURY TRIAL

  	
   

  
	
  13.16.

  	
  Confidentiality

  	
   

  
	
  13.17.

  	
  USA PATRIOT Act

  	
   

  
	
  13.18.

  	
  Electronic Communications

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1(a)

  	
  Existing Letters of Credit

  	
   

  
	
  Schedule 1.1(b)

  	
  Mortgaged Properties

  	
   

  
	
  Schedule 1.1(c)

  	
  Commitments and Addresses of Lenders

  	
   

  
	
  Schedule 1.1(d)

  	
  Excluded Subsidiaries

  	
   

  
	
  Schedule 8.12

  	
  Subsidiaries

  	
   

  
	
  Schedule 9.17

  	
  Post-Closing Matters

  	
   

  
	
  Schedule 10.1

  	
  Closing Date Indebtedness

  	
   

  
	
  Schedule 10.2

  	
  Closing Date Liens

  	
   

  
	
  Schedule 10.5

  	
  Closing Date Investments

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Guarantee

  	
   

  
	
  Exhibit B

  	
  Form of Mortgage

  	
   

  
	
  Exhibit C

  	
  Form of Perfection Certificate

  	
   

  
	
  Exhibit D

  	
  Form of Pledge Agreement

  	
   

  
	
  Exhibit E

  	
  Form of Security Agreement

  	
   

  
	
  Exhibit F

  	
  Form of Letter of Credit Request

  	
   

  
	
  Exhibit G-1

  	
  Form of Legal Opinion of Simpson
  Thacher & Bartlett LLP

  	
   

  
	
  Exhibit G-2

  	
  Form of Legal Opinion of Local Counsel

  	
   

  
	
  Exhibit H

  	
  Form of Closing Certificate

  	
   

  
	
  Exhibit I

  	
  Form of Assignment and Acceptance

  	
   

  
	
  Exhibit J-1

  	
  Form of Term Loan Promissory Note

  	
   

  
	
  Exhibit J-2

  	
  Form of Revolving Credit and Swingline
  Loan Promissory Note

  	
   

  
	
  Exhibit K

  	
  Form of Joinder Agreement

  	
   

  



 


iv





















 


CREDIT
AGREEMENT dated as of November 22, 2005, among ACCELLENT MERGER SUB INC.,
a Maryland corporation (“Merger Sub”), a wholly owned subsidiary of
ACCELLENT ACQUISITION CORP., a Delaware corporation (“Holdings”) which
shall merge (the “Merger”) with and into ACCELLENT INC., a Maryland corporation
(“Target” and immediately upon consummation of the Merger with Target as
the surviving entity and its assumption of the obligations of Merger Sub
hereunder by operation of law, the “Borrower”), Holdings, the Borrower, the
lending institutions from time to time parties hereto (each a “Lender”
and, collectively, the “Lenders”), J.P. MORGAN SECURITIES INC., as Joint Lead Arranger and Joint Bookrunner,
CREDIT SUISSE, as Joint Lead Arranger and Joint Bookrunner and Syndication Agent, JPMORGAN CHASE
BANK, N.A., as Administrative Agent, and LEHMAN COMMERCIAL PAPER INC., as
Documentation Agent (such term and each other capitalized term used but not
defined in this introductory statement having the meaning provided in Section 1).


 


WHEREAS, in
connection with the Merger, an investment entity controlled by KKR (as defined
below) will directly or indirectly contribute to Holdings in cash an amount
that, together with the equity of the other Permitted Holders (as defined
below), is not less than 30% of the aggregate pro forma capitalization of the
Borrower after giving effect to the consummation of the Transactions and
Holdings shall contribute all of such cash proceeds in cash to the Borrower (the
“Equity Proceeds”); 


 


WHEREAS, in
connection with the Merger, (a) Accellent Corp. intends to consummate a
tender offer and consent solicitation (the “Tender Offer”) for an
aggregate amount of Accellent Corp.’s 10% senior subordinated notes due 2012
(the “Existing Notes”) necessary to modify the Existing Indenture (as defined
below) governing the Existing Notes to eliminate customary restrictive
covenants thereunder (a “Successful Tender Offer”) and (b) the
Borrower intends to terminate all commitments and repay all outstanding
obligations under its Existing Credit Agreement (as defined below) (together
with the Tender Offer, the “Refinancing”);


 


WHEREAS, in
connection with the Merger, the Borrower (a) will issue not less than $300,000,000
in aggregate principal amount of its senior subordinated notes (the “Subordinated
Notes”) in a public offering or in a Rule 144A or other private
placement; and (b) has requested the Lenders to extend credit in the form
of (a) Term Loans (as defined below), in an aggregate principal amount of
$400,000,000, and (b) Revolving Credit Loans (as defined below) made
available to the Borrower at any time and from time to time prior to the
Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding
not in excess of $75,000,000 less the sum of (i) the aggregate Letter of
Credit Outstanding (as defined below) at such time and (ii) the aggregate
principal amount of all Swingline Loans (as defined below) outstanding at such
time.  The Borrower has requested (a) the
Letter of Credit Issuer (as defined below) to issue Letters of Credit (as
defined below) at any time and from time to time prior to the L/C Maturity Date
(as defined below), in an aggregate face amount at any time outstanding not in
excess of $25,000,000 and (b) to deem the letters of credit issued
pursuant to the Existing Credit Agreement (the “Existing Letters of Credit”)
and identified on Schedule 1.1(a) hereto to be Letters of
Credit for all purposes under this Agreement. 
The Borrower has requested the Swingline Lender (as defined below) to
extend credit in the form of Swingline Loans at any time and from time to time
prior to the Swingline Maturity Date (as defined below), in an aggregate
principal amount at any time outstanding not in excess of $10,000,000;


 


WHEREAS, the
proceeds of the Term Loans will be used by the Borrower, together with (a) the
net proceeds of the issuance of the Subordinated Notes and (b) the net
proceeds of the Equity Proceeds, on the Closing Date solely to effect the Acquisition,
the Merger, the Refinancing and to pay Transaction Expenses.  Proceeds of Revolving Credit Loans and
Swingline Loans will be used by the Borrower after the Closing Date for general
corporate purposes (including Permitted Acquisitions).  Letters of Credit will be used by the Borrower
and its Subsidiaries for general corporate purposes.


 





















 


The parties
hereto hereby agree as follows:


 


SECTION 1.                                Definitions


 


1.1.                              Defined
Terms.  (a)  As used herein, the
following terms shall have the meanings specified in this Section 1.1
unless the context otherwise requires (it being understood that defined terms
in this Agreement shall include in the singular number the plural and in the
plural the singular):


 


“ABR”
shall mean, for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect
on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1⁄2 of 1%.  Any change in the ABR due
to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such change in
the Prime Rate or the Federal Funds Effective Rate, respectively.


 


“ABR Loan”
shall mean each Loan bearing interest at the rate provided in Section 2.8(a) and,
in any event, shall include all Swingline Loans.


 


“Acquired
EBITDA” shall mean, with respect to any Acquired Entity or Business, any Converted
Restricted Subsidiary, any Sold Entity or Business or any Converted
Unrestricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for
any period, the amount for such period of Consolidated EBITDA of such Pro Forma
Entity (determined using such definitions as if references to the Borrower and
its Subsidiaries therein were to such Pro Forma Entity and its Subsidiaries),
all as determined on a consolidated basis for such Pro Forma Entity in
accordance with GAAP.


 


“Acquired
Entity or Business” shall have the meaning provided in the definition of
the term “Consolidated EBITDA”.


 


“Adjusted Total
Revolving Credit Commitment” shall mean at any time the Total Revolving
Credit Commitment less the aggregate Revolving Credit Commitments of all
Defaulting Lenders.


 


“Adjusted
Total Term Loan Commitment” shall mean at any time the Total Term Loan
Commitment less the Term Loan Commitments of all Defaulting Lenders.


 


“Administrative
Agent” shall mean JPMorgan Chase Bank, N.A., together with its affiliates,
as the arranger of the Commitments and as the administrative agent for the
Lenders under this Agreement and the other Credit Documents.


 


“Administrative
Agent’s Office” shall mean in respect of all Credit Events for the account
of the Borrower, the office of the Administrative Agent located at 270 Park Avenue, 5th Floor, New
York, NY 10017, or such other office as the Administrative Agent may
hereafter designate in writing as such to the other parties.


 


“Affiliate”
shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with
such Person.  A Person shall be deemed to
control a corporation if such Person possesses, directly or indirectly, the
power (a) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such corporation or (b) to direct
or cause the direction of the management and policies of such corporation,
whether through the ownership of voting securities, by contract or otherwise.


 


“Agents”
shall mean the Joint Lead Arrangers and the Administrative Agent.


 


2





















 


“Aggregate
Revolving Credit Outstandings” shall have the meaning provided in Section 5.2(b)(i).


 


“Agreement”
shall mean this Credit Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.


 


“Amortization
Amount” shall have the meaning provided in Section 5.2(c).


 


“Applicable
Rate” shall mean a percentage per annum equal to:


 


(i)(a)                       with
respect to Term Loans that are ABR Loans, 1.00% and (b) with respect to
Term Loans that are Eurodollar Loans, 2.00%; provided that after the
Initial Financial Statement Delivery Date, if the Consolidated Net Debt to
Consolidated EBITDA Ratio is less than 4.50 to 1.00 as set forth in the Section 9.1
Financials and related officer’s certificate last delivered by the Borrower to
the Lenders (as described in the last paragraph of this definition) setting
forth the Consolidated Net Debt to Consolidated EBITDA Ratio, the Applicable
Rate (a) with respect to Term Loans that are ABR Loans shall be 0.75% and (b) with
respect to Term Loans that are Eurodollar Loans shall be 1.75%;


 


(ii)(a)                    with respect
to Revolving Credit Loans and Swingline Loans that are ABR Loans, 1.25% and (b) with
respect to Revolving Credit Loans that are Eurodollar Loans, 2.25%; provided
that after the Initial Financial Statement Delivery Date, the Applicable Rate
for Revolving Credit Loans and Swingline Loans shall be as set forth in the
table below based upon the Consolidated Net Debt to Consolidated EBITDA Ratio
as set forth in the Section 9.1 Financials and related officer’s
certificate last delivered by the Borrower to the Lenders (as described in the
last paragraph of this definition) setting forth the Consolidated Net Debt to
Consolidated EBITDA Ratio;


 


(iii)                               with
respect to the Available Commitment on any day, a commitment fee (the “Commitment
Fee”) rate per annum equal to 0.50%; provided that after the Initial
Financial Statement Delivery Date, the Commitment Fee shall be as set forth in
the table below based upon the Consolidated Net Debt to Consolidated EBITDA
Ratio as set forth in the Section 9.1 Financials and related officer’s
certificate last delivered by the Borrower to the Lenders (as described in the
last paragraph of this definition) setting forth the Consolidated Net Debt to
Consolidated EBITDA Ratio; provided  further that, so long as an
Event of Default has occurred and is continuing, the Commitment Fee shall be a
rate per annum equal to 0.50%;


 


	
  Consolidated Net Debt

  to Consolidated

  EBITDA Ratio

  	
   

  	
  Applicable Rate for

  Revolving Credit Loans

  that are ABR Loans

  and Swingline Loans

  	
   

  	
  Applicable Rate for

  Revolving Credit Loans

  that are Eurodollar

  Loans

  	
   

  	
  Applicable

  Commitment Fee Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than 6.00 to 1.00

  	
   

  	
  1.25%

  	
   

  	
  2.25%

  	
   

  	
  0.50%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal to 6.0 to 1.00 but
  greater than 4.5 to 1.00

  	
   

  	
  1.00%

  	
   

  	
  2.00%

  	
   

  	
  0.50%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal to 4.5 to 1.00 but
  greater than 3.5 to 1.00

  	
   

  	
  0.75%

  	
   

  	
  1.75%

  	
   

  	
  0.50%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal to 3.5 to 1.00

  	
   

  	
  0.50%

  	
   

  	
  1.50%

  	
   

  	
  0.375%

  	
   

  



 


3





















 


Changes in
Applicable Rate resulting from changes in the Consolidated Net Debt to
Consolidated EBITDA Ratio shall become effective (the date of such
effectiveness, the “Effective Date”) as of the first day following the
last day of the most recent fiscal year or period for which Section 9.1
Financials and a related officer’s certificate are delivered to the Lenders
under Section 9.1, and shall remain in effect until any subsequent change takes
effect pursuant to this definition, provided that (i) if the
Borrower shall have made any payments in respect of interest or commitment fees
during the period (the “Interim Period”) from and including the
Effective Date to but excluding the day any change in Applicable Rate is
determined as provided above, then the amount of the next such payment due on
or after such day shall be increased or decreased by an amount equal to any
underpayment or overpayment so made by the Borrower during such Interim Period
and (ii) each determination of the Consolidated Net Debt to Consolidated
EBITDA Ratio pursuant to this definition shall be made with respect to the Test
Period ending at the end of the fiscal period covered by the relevant financial
statements.


 


“Approved
Fund” shall have the meaning provided in Section 13.6.


 


“Asset Sale
Prepayment Event” shall mean any conveyance, lease, sublease, assignment, sale,
transfer or other disposition (including by way of merger or consolidation) of
any business units, assets or other properties of the Borrower or any of the
Restricted Subsidiaries not in the ordinary course of business (including any
sale, transfer or other disposition of any capital stock of any Subsidiary of
the Borrower owned by the Borrower or a Restricted Subsidiary (including any
sale or issuance of any capital stock of any Subsidiary) and any Permitted Sale
Leaseback).  Notwithstanding the
foregoing, the term “Asset Sale Prepayment Event” shall not include any
transaction permitted by Section 10.4, other than transactions permitted
by Sections 10.4(b) and (e).


 


“Assignment
and Acceptance” shall mean an assignment and acceptance substantially in
the form of Exhibit I.


 


“Authorized
Officer” shall mean the Chairman of the Board, the President, the Chief
Financial Officer, the Treasurer or any other senior officer of the Borrower
designated as such in writing to the Administrative Agent by the Borrower.


 


“Auto-Renewal
Letter of Credit” shall have the meaning provided in Section 3.1.


 


“Available
Amount” shall mean, on any date (the “Reference Date”), an amount
equal at such time to (a) the sum of, without duplication, (i)(A) for
purposes of Section 10.5 (m), 75,000,000 in the aggregate (it being
understood that such amount shall not be decreased by amounts in clause (b)(ii) or
(b)(iii) of this definition) and (B) for purposes of Section 10.6(d) and
the first proviso of Section 10.7(a), $35,000,000 in the aggregate (it being
understood that such amount shall not be decreased by amounts in clause (b)(i) of
this definition); plus (ii) an amount equal to (x) the
cumulative amount of Excess Cash Flow for all fiscal years completed after the
Closing Date and prior to the Reference Date minus (y) the portion
of such Excess Cash Flow that has been after the Closing Date and on or prior
to the Reference Date (or will be) applied to the prepayment of Loans in
accordance with Section 5.2(a)(ii), provided, for purposes of Section 10.6(d) and
the first proviso to Sections 10.7(a) only, that the amount in this clause
(ii) shall only be available if the Consolidated Net Debt to Consolidated
EBITDA Ratio of the Test Period last ended and after giving effect to the
dividend, prepayment, repurchase, redemption or defeasance, as applicable, to
be completed on the Reference Date is less than 5.25 to 1.00, plus (iii) the
amount of any capital contributions (other than (x) the Equity Proceeds and (y)
contributions made pursuant to Section 11.14) made in cash to the Borrower
from and including the Business Day immediately following the Closing Date
through and including the Reference Date, including contributions with the
proceeds from any issuance of equity securities by Holdings, minus (b) the
sum, without duplication, at such time of (i) the aggregate amount of any
investments (including loans) made by the Borrower or any Restricted


 


4





















 


Subsidiary
pursuant to Section 10.5 (m) after the Closing Date and on or prior to the
Reference Date, plus (ii) the aggregate amount of dividends made by
the Borrower or any Restricted Subsidiary after the Closing Date and on or
prior to the Reference Date pursuant to Section 10.6(d), plus (iii) the
aggregate price paid by the Borrower in connection with any prepayment,
repurchase or redemption of the Subordinated Notes pursuant to Section 10.7(a),
after the Closing Date and on or prior to the Reference Date.


 


“Available Commitment”
shall mean an amount equal to the excess, if any, of (a) the Total
Revolving Credit Commitment over (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Loans (but not Swingline Loans) then
outstanding and (ii) the aggregate Letter of Credit Outstanding at such
time.


 


“Bain”
shall mean Bain Capital Partners, LLC.


 


“Bankruptcy
Code” shall have the meaning provided in Section 11.5.


 


“Board”
shall mean the Board of Governors of the Federal Reserve System of the United
States (or any successor).


 


“Borrower”
shall have the meaning provided in the preamble to this Agreement.


 


“Borrowing”
shall mean and include (a) the incurrence of Swingline Loans from the
Swingline Lender on a given date, (b) the incurrence of one Type of Term
Loan on the Closing Date (or resulting from conversions on a given date after
the Closing Date) having, in the case of Eurodollar Term Loans, the same
Interest Period (provided that ABR Loans incurred pursuant to Section 2.10(b) shall
be considered part of any related Borrowing of Eurodollar Term Loans) and (c) the
incurrence of one Type of Revolving Credit Loan on a given date (or resulting
from conversions on a given date) having, in the case of Eurodollar Revolving
Credit Loans, the same Interest Period (provided that ABR Loans incurred
pursuant to Section 2.10(b) or 2.10(c)  shall be considered part
of any related Borrowing of Eurodollar Revolving Credit Loans).


 


“Business
Day” shall mean any day excluding Saturday, Sunday and any day that shall
be in The City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close.


 


“Capital
Expenditures” shall mean, for any period, the aggregate of all expenditures
(whether paid in cash or accrued as liabilities and including in all events all
amounts expended or capitalized under Capital Leases, but excluding any amount
representing capitalized interest) by the Borrower and the Restricted
Subsidiaries during such period that, in conformity with GAAP, are or are
required to be included as additions during such period to property, plant or equipment
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries, provided that the term “Capital Expenditures” shall not
include (a) expenditures made in connection with the replacement,
substitution or restoration of assets (i) to the extent financed from
insurance proceeds paid on account of the loss of or damage to the assets being
replaced or restored or (ii) with awards of compensation arising from the
taking by eminent domain or condemnation of the assets being replaced, (b) the
purchase price of equipment that is purchased simultaneously with the trade-in
of existing equipment to the extent that the gross amount of such purchase
price is reduced by the credit granted by the seller of such equipment for the
equipment being traded in at such time, (c) the purchase of plant,
property or equipment made within one year after the sale of any asset to the
extent purchased with the proceeds of such sale or (d) expenditures that
constitute any part of Consolidated Lease Expense.


 


5





















 


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


 


“Capitalized
Lease Obligations” shall mean, as applied to any Person, all obligations
under Capital Leases of such Person or any of its Subsidiaries, in each case
taken at the amount thereof accounted for as liabilities in accordance with
GAAP.


 


“Casualty
Event” shall mean, with respect to any property of any Person, any loss of
or damage to, or any condemnation or other taking by a Governmental Authority
of, such property for which such Person or any of its Restricted Subsidiaries
receives insurance proceeds, or proceeds of a condemnation award or other
compensation.


 


“Change of
Control” shall mean and be deemed to have occurred if 


 


(a)                                   (i) the Permitted Holders shall at any time not own, in the aggregate,
directly or indirectly, beneficially and of record, at least 35% of the
outstanding Voting Stock of Holdings (other than as the result of one or more
widely distributed offerings of Holdings or Parent common stock, in each case
whether by Holdings, Parent or by the Permitted Holders) and/or (ii) any
person, entity or “group” (within the meaning of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended) shall at any time have
acquired direct or indirect beneficial ownership of a percentage of the
outstanding Voting Stock of Holdings that exceeds the percentage of such Voting
Stock then beneficially owned, in the aggregate, by the Permitted Holders,
unless, in the case of either clause (i) or (ii) above, the
Permitted Holders have, at such time, the right or the ability by voting power,
contract or otherwise to elect or designate for election a majority of the
Board of Directors of Holdings; provided, however, for purposes of this definition,
the Permitted Investors shall be deemed to own no more than the aggregate
amount of Voting Stock of Holdings that such Permitted Investors owned,
directly or indirectly as of the Closing Date; and/or 


 


(b)                                 at
any time Continuing Directors shall not constitute a majority of the Board of
Directors of Holdings; and/or 


 


(c)                                   any
Person other than Holdings acquires ownership, directly or indirectly,
beneficially or of record, of any equity interest (other than any management or
employee equity interests) of any nature in the Borrower; and/or 


 


(d)                                 a
“Change of Control” (or any comparable term) in the Subordinated Note Indenture
shall have occurred.


 


“Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Credit Loans, Term Loans,
New Term Loans of each Series or Swingline Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a Revolving
Credit Commitment, Term Loan Commitment or a New Term Loan Commitment.


 


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


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and rulings issued thereunder.  Section references to the Code are to
the Code, as in effect at the date of this Agreement, and any subsequent
provisions of the Code, amendatory thereof, supplemental thereto or substituted
therefor.


 


6





















 


“Collateral”
shall have the meaning provided in the Pledge Agreement, the Security Agreement
or any Mortgaged Property or Trust Property under a Mortgage, as applicable.


 


“Commitments”
shall mean, with respect to each Lender, such Lender’s Term Loan Commitment,
Revolving Credit Commitment or New Term Loan Commitment.


 


“Confidential
Information” shall have the meaning provided in Section 13.16.


 


“Confidential
Information Memorandum” shall mean the Confidential Information Memorandum
of the Borrower dated November 2005, delivered to the Lenders in
connection with this Agreement.


 


“Consolidated
Earnings” shall mean, for any period, “income (loss) before the deduction
of income taxes” of the Borrower and the Restricted Subsidiaries, excluding
extraordinary items, for such period, determined in a manner consistent with
the manner in which such amount was determined in accordance with the audited
financial statements referred to in Section 9.1(a).


 


“Consolidated
EBITDA” shall mean, for any period, the sum, without duplication, of the
amounts for such period of (a) Consolidated Earnings and to the extent
already deducted in arriving at Consolidated Earnings: (b) Consolidated
Interest Expense, (c) depreciation expense, (d) amortization expense,
including amortization of deferred financing fees, (e) extraordinary
losses and unusual or non-recurring charges (including severance, relocation
costs and one-time compensation charges), (f) non-cash charges (provided
that if any such non-cash charges represent an accrual or reserve for potential
cash items in any future period, the cash payment in respect thereof in such
future period shall be subtracted from Consolidated EBITDA to such extent, and
excluding amortization of a prepaid cash item that was paid in a prior period),
(g) losses on asset sales, (h) restructuring charges or reserves
(including costs related to closure of facilities), (i) in the case of any
period that includes the fiscal quarter ending December 31, 2005,
Transaction Expenses, to the extent deducted in determining Consolidated
Earnings, (j) any expenses or charges incurred in connection with any
issuance of debt, equity securities or any refinancing transaction,
(k) any fees and expenses related to Permitted Acquisitions, (l) the
amount of any minority interest expense consisting of Subsidiary income
attributable to minority equity interests of third parties in any non-wholly
owned Subsidiary deducted (and not added back) in such period in calculating
Consolidated Earnings, and (m) the amount of management, monitoring, consulting
and advisory fees and related expenses paid to KKR and Bain, less the
sum of the amounts for such period of (o) extraordinary gains and unusual
or non-recurring gains, (p) non-cash gains (excluding any such non-cash
gain to the extent it represents the reversal of an accrual or reserve for
potential cash item in any prior period) and (q) gains on asset sales, all
as determined on a consolidated basis for the Borrower and the Restricted
Subsidiaries in accordance with GAAP, provided that (i) except as
provided in clause (iii) below, there shall be excluded from
Consolidated Earnings for any period the income from continuing operations before
income taxes and extraordinary items of all Unrestricted Subsidiaries for such
period to the extent otherwise included in Consolidated Earnings, except to the
extent actually received in cash by Holdings, the Borrower or its Restricted
Subsidiaries during such period through dividends or other distributions, (ii) there
shall be excluded in determining Consolidated EBITDA non-operating currency transaction gains and losses and (iii) (x) there
shall be included in determining Consolidated EBITDA for any period (A) the
Acquired EBITDA of any Person, property, business or asset (other than an
Unrestricted Subsidiary) acquired to the extent not subsequently sold,
transferred or otherwise disposed of (but not including the Acquired EBITDA of
any related Person, property, business or assets to the extent not so acquired)
by the Borrower or any Restricted Subsidiary during such period (each such
Person, property, business or asset acquired and not subsequently so disposed
of, an “Acquired Entity or Business”), and the Acquired EBITDA of any
Unrestricted Subsidiary that is converted into a Restricted Subsidiary during
such period (each, a “Converted Restricted Subsidiary”), in each case
based on the actual Acquired EBITDA of such


 


7





















 


Acquired
Entity or Business or Converted Restricted Subsidiary for such period
(including the portion thereof occurring prior to such acquisition or conversion)
and (B) for the purposes of the definition of the term “Permitted
Acquisition” and Sections 10.9 and 10.10, an adjustment in respect of each
Acquired Entity or Business equal to the amount of the Pro Forma Adjustment
with respect to such Acquired Entity or Business for such period (including the
portion thereof occurring prior to such acquisition or conversion) as specified
in the Pro Forma Adjustment Certificate delivered to the Lenders and the
Administrative Agent and (y) for purposes of determining the Consolidated
Net Debt to Consolidated EBITDA Ratio only, there shall be excluded in
determining Consolidated EBITDA for any period the Acquired EBITDA of any
Person, property, business or asset (other than an Unrestricted Subsidiary)
sold, transferred or otherwise disposed of, closed or classified as
discontinued operations by the Borrower or any Restricted Subsidiary during
such period (each such Person, property, business or asset so sold or disposed
of, a “Sold Entity or Business”), and the Acquired EBITDA of any
Restricted Subsidiary that is converted into an Unrestricted Subsidiary during
such period (each, a “Converted Unrestricted Subsidiary”), in each case
based on the actual Acquired EBITDA of such Sold Entity or Business or
Converted Unrestricted Subsidiary for such period (including the portion
thereof occurring prior to such sale, transfer, disposition or
conversion).  Notwithstanding anything to
the contrary contained herein, Consolidated EBITDA shall be deemed to be $28,300,000
and $27,100,000, respectively, for the fiscal quarters ended June 30, 2005
and September 30, 2005.


 


“Consolidated
EBITDA to Consolidated Interest Expense Ratio” shall mean, as of any date
of determination, the ratio of (a) Consolidated EBITDA for the relevant
Test Period to (b) Consolidated Interest Expense for such Test Period.


 


“Consolidated
Interest Expense” shall mean, for any period, the cash interest expense
(including that attributable to Capital Leases in accordance with GAAP), net of
cash interest income, of the Borrower and the Restricted Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of the Borrower
and the Restricted Subsidiaries, including all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers’ acceptance
financing and net costs under Hedge Agreements (other than currency swap
agreements, currency future or option contracts and other similar agreements),
but excluding, however, amortization of deferred financing costs and any other
amounts of non-cash interest, all as calculated on a consolidated basis in
accordance with GAAP, provided that (a) except as provided in
clause (b) below, there shall be excluded from Consolidated Interest
Expense for any period the cash interest expense (or income) of all
Unrestricted Subsidiaries for such period to the extent otherwise included in
Consolidated Interest Expense and (b) for purposes of the definition of
the term “Permitted Acquisition” and Sections 10.3, 10.9 and 10.10, there
shall be included in determining Consolidated Interest Expense for any period
the cash interest expense (or income) of any Acquired Entity or Business
acquired during such period and of any Converted Restricted Subsidiary
converted during such period, in each case based on the cash interest expense
(or income) of such Acquired Entity or Business or Converted Restricted
Subsidiary for such period (including the portion thereof occurring prior to
such acquisition or conversion) assuming any Indebtedness incurred or repaid in
connection with any such acquisition or conversion had been incurred or prepaid
on the first day of such period. Notwithstanding anything to the contrary
contained herein, for purposes of determining Consolidated Interest Expense for
any period ending prior to the first anniversary of the Closing Date,
Consolidated Interest Expense shall be an amount equal to actual Consolidated
Interest Expense from the Closing Date through the date of determination
multiplied by a fraction the numerator of which is 365 and the denominator of
which is the number of days from the Closing Date through the date of determination.


 


“Consolidated
Lease Expense” shall mean, for any period, all rental expenses of the
Borrower and the Restricted Subsidiaries during such period under operating
leases for real or personal property (including in connection with Permitted
Sale Leasebacks), excluding real estate taxes, insurance costs and common area
maintenance charges and net of sublease income, other than (a) obligations
under vehicle


 


8





















 


leases entered into in the ordinary course of business, (b) all
such rental expenses associated with assets acquired pursuant to a Permitted
Acquisition to the extent that such rental expenses relate to operating leases
in effect at the time of (and immediately prior to) such acquisition and (c) Capitalized
Lease Obligations, all as determined on a consolidated basis in accordance with
GAAP, provided that there shall be excluded from Consolidated Lease
Expense for any period the rental expenses of all Unrestricted Subsidiaries for
such period to the extent otherwise included in Consolidated Lease Expense.


 


“Consolidated
Net Debt” shall mean, as of any date of determination, (a) the sum of (i) all
indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money
outstanding on such date and (ii) all Capitalized Lease Obligations of the
Borrower and the Restricted Subsidiaries outstanding on such date, all
calculated on a consolidated basis in accordance with GAAP minus (b) the
aggregate amount of cash included in the cash accounts listed on the
consolidated balance sheet of the Borrower and the Restricted Subsidiaries as
at such date up to a maximum amount of such cash not to exceed an amount equal
to 50% of Consolidated EBITDA for the latest Test Period then ended, as set
forth in the most recent Section 9.1 Financials and related officer’s
certificate delivered to the Lenders by the Borrower, to the extent the use
thereof for application to payment of Indebtedness is not prohibited by law or
any contract to which the Borrower or any of the Restricted Subsidiaries is a
party.


 


“Consolidated
Net Debt to Consolidated EBITDA Ratio” shall mean, as of any date of
determination, the ratio of (a) Consolidated Net Debt as of the last day
of the relevant Test Period to (b) Consolidated EBITDA for such Test
Period.


 


“Consolidated
Net Income” shall mean, for any period, the consolidated net income (or
loss) after the deduction of income taxes of the Borrower and the Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP.


 


“Consolidated
Net Sales” shall mean, for any fiscal year, “net sales” of the Borrower and
the Restricted Subsidiaries as set forth in the Section 9.1 Financials
with respect to such fiscal year.


 


“Consolidated
Working Capital” shall mean, at any date, the excess of (a) the sum of
all amounts (other than cash, cash equivalents and bank overdrafts) that would,
in conformity with GAAP, be set forth opposite the caption “total current
assets” (or any like caption) on a consolidated balance sheet of the Borrower
and the Restricted Subsidiaries at such date over (b) the sum of all
amounts that would, in conformity with GAAP, be set forth opposite the caption “total
current liabilities” (or any like caption) on a consolidated balance sheet of
the Borrower and the Restricted Subsidiaries on such date, but excluding (i) the
current portion of any Funded Debt, (ii) without duplication of clause (i) above,
all Indebtedness consisting of Loans and Letter of Credit Exposure to the
extent otherwise included therein and (iii) the current portion of
deferred income taxes.


 


“Continuing
Director” shall mean, at any date, an individual (a) who is a member
of the Board of Directors of Holdings on the date hereof, (b) who, as at
such date, has been a member of such Board of Directors for at least the 12
preceding months, (c) who has been nominated to be a member of such Board
of Directors, directly or indirectly, by KKR or one of its Affiliates or
Persons nominated by KKR or one of its Affiliates or (d) who has been
nominated to be a member of such Board of Directors by a majority of the other
Continuing Directors then in office.


 


“Converted
Restricted Subsidiary” shall have the meaning provided in the definition of
the term “Consolidated EBITDA”.


 


“Converted
Unrestricted Subsidiary” shall have the meaning provided in the definition
of the term “Consolidated EBITDA”.


 


9





















 


“Credit Documents”
shall mean this Agreement, the Security Documents, each Letter of Credit and
any promissory notes issued by the Borrower hereunder.


 


“Credit
Event” shall mean and include the making (but not the conversion or
continuation) of a Loan and the issuance or renewal of a Letter of Credit
(including an Auto-Renewal Letter of Credit).


 


“Credit
Facility” shall mean a category of Commitments and extensions of credit
thereunder.


 


“Credit
Party” shall mean each of the Borrower, the Guarantors and each other Subsidiary
of the Borrower that is a party to a Credit Document.


 


“Debt
Incurrence Prepayment Event” shall mean any issuance or incurrence by the
Borrower or any of the Restricted Subsidiaries of any Indebtedness (excluding
any Indebtedness permitted to be issued or incurred under Section 10.1(A),
other than Section 10.1(A)(o).


 


“Default”
shall mean any event, act or condition that with notice or lapse of time, or
both, would constitute an Event of Default.


 


“Defaulting
Lender” shall mean any Lender with respect to which a Lender Default is in
effect.


 


“Designated
Non-cash Consideration” shall mean the fair market value of non-cash
consideration received by the Borrower or a Restricted Subsidiary in connection
with any sale, transfer or other disposition of property that is so designated
as Designated Non-cash Consideration pursuant to an officer’s certificate,
setting forth the basis of such valuation, executed by the principal financial
officer of the Borrower, less the amount of cash or Permitted Investments
received in connection with a subsequent sale of or collection on such
Designated Non-cash Consideration.


 


“Disqualified
Equity Interests” shall mean any Equity Interest which, by its terms (or by
the terms of any security or other Equity Interests into which it is
convertible or for which it is exchangeable), or upon the happening of any
event or condition (a) matures or is mandatorily redeemable (other than
solely for Qualified Equity Interests), pursuant to a sinking fund obligation
or otherwise (except as a result of a change of control or asset sale so long
as any rights of the holders thereof upon the occurrence of a change of control
or asset sale event shall be subject to the prior repayment in full of the
Loans and all other Obligations that are accrued and payable and the
termination of the Commitments), (b) is redeemable at the option of the
holder thereof (other than solely for Qualified Equity Interests), in whole or
in part, (c) provides for the scheduled payments of dividends in cash, or (d) is
or becomes convertible into or exchangeable for Indebtedness or any other
Equity Interests that would constitute Disqualified Equity Interests, in each
case, prior to the date that is ninety-one (91) days after the Term Loan
Maturity Date.


 


“Dividends”
shall have the meaning provided in Section 10.6.


 


“Dollars”
and “$” shall mean dollars in lawful currency of the United States of
America.


 


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


 


“Drawing”
shall have the meaning provided in Section 3.4(b).


 


10





















 


“Eligible
Lender” shall mean, at any time, a Person who, on any date on which
interest is payable under this Agreement, is a Person which is beneficially
entitled to the interest payable to it under this Agreement.


 


“Environmental
Claims” shall mean any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports
prepared by the Borrower or any of the Subsidiaries (a) in the ordinary
course of such Person’s business or (b) as required in connection with a
financing transaction or an acquisition or disposition of real estate) or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereinafter, “Claims”),
including (i) any and all Claims by governmental or regulatory authorities
for enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law and (ii) any and all
Claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from Hazardous Materials
or arising from alleged injury or threat of injury to health, safety or the
environment.


 


“Environmental
Law” shall mean any applicable Federal, state, foreign or local statute,
law, rule, regulation, ordinance, code and rule of common law now or
hereafter in effect and in each case as amended, and any binding judicial or
administrative interpretation thereof, including any binding judicial or
administrative order, consent decree or judgment, relating to the environment,
human health or safety or Hazardous Materials.


 


“Equity
Interests” shall mean, with respect to any Person, all of the shares,
interests, rights, participations or other equivalents (however designated) of
capital stock of (or other ownership or profit interests or units in) such
Person and all of the warrants, options or other rights for the purchase,
acquisition or exchange from such Person of any of the foregoing (including
through convertible securities).


 


“Equity
Proceeds” shall have the meaning provided in the recitals hereto.


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from
time to time.  Section references to
ERISA are to ERISA as in effect at the date of this Agreement and any
subsequent provisions of ERISA amendatory thereof, supplemental thereto or
substituted therefor.


 


“ERISA
Affiliate” shall mean each person (as defined in Section 3(9) of
ERISA) that together with Holdings and the Borrower or a Subsidiary would be
deemed to be a “single employer” within the meaning of Section 414(b) or
(c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414 of the
Code.


 


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


 


“Eurodollar
Rate” shall mean, in the case of any Eurodollar Term Loan or Eurodollar
Revolving Credit Loan, with respect to each day during each Interest Period
pertaining to such Eurodollar Loan, (a) the rate of interest determined on
the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing
on Page 3750 of the Telerate screen as of 11:00 a.m. (London time)
two Business Days prior to the beginning of such Interest Period multiplied by (b) the
Statutory Reserve Rate.  In the event
that any such rate does not appear on the applicable Page of the Telerate
Service (or otherwise on such service), the “Eurodollar Rate” for the
purposes of this paragraph shall be determined by reference to such other
publicly available service for


 


11





















 


displaying
Eurodollar rates as may be agreed upon by the Administrative Agent and the
Borrower or, in the absence of such agreement, the “Eurodollar Rate” for
the purposes of this paragraph shall instead be the rate per annum notified to
the Administrative Agent by the Reference Lender as the rate at which the Reference
Lender is offered Dollar deposits at or about 11:00 a.m. (London time) two
Business Days prior to the beginning of such Interest Period in the interbank
Eurodollar market where the Eurodollar and foreign currency and exchange
operations in respect of its Eurodollar Loans are then being conducted for
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its Eurodollar
Term Loan or Eurodollar Revolving Credit Loan, as the case may be, to be
outstanding during such Interest Period.


 


“Eurodollar
Revolving Credit Loan” shall mean any Revolving Credit Loan bearing
interest at a rate determined by reference to the Eurodollar Rate.


 


“Eurodollar
Term Loan” shall mean any Term Loan bearing interest at a rate determined
by reference to the Eurodollar Rate.


 


“Event of
Default” shall have the meaning provided in Section 11.


 


“Excess
Cash Flow” shall mean, for any period, an amount equal to the excess of (a) the
sum, without duplication, of (i) Consolidated Net Income for such period, (ii) an
amount equal to the amount of all non-cash charges to the extent deducted in
arriving at such Consolidated Net Income, (iii) decreases in Consolidated
Working Capital for such period (other than as a result of (A) acquisitions
completed during such period and (B) adjustments resulting from the
application of purchase accounting) and (iv) an amount equal to the
aggregate net non-cash loss on the sale, lease, transfer or other disposition
of assets by the Borrower and the Restricted Subsidiaries during such period
(other than sales in the ordinary course of business) to the extent deducted in
arriving at such Consolidated Net Income over (b) the sum, without
duplication, of (i) an amount equal to the amount of all non-cash credits
included in arriving at such Consolidated Net Income, (ii) the aggregate
amount actually paid by the Borrower and the Restricted Subsidiaries in cash
during such period on account of Capital Expenditures (excluding the principal
amount of Indebtedness incurred in connection with such Capital Expenditures,
whether incurred in such period or in a subsequent period), (iii) the
aggregate amount of all prepayments of Revolving Credit Loans and Swingline
Loans made during such period to the extent accompanying reductions of the Total
Revolving Credit Commitments except to the extent financed with the proceeds of
other Indebtedness of Holdings or its Restricted Subsidiaries, (iv) the
aggregate amount of all principal payments of Indebtedness of the Borrower or
the Restricted Subsidiaries (including any Term Loans and the principal
component of payments in respect of Capitalized Lease Obligations but excluding
Revolving Credit Loans, Swingline Loans and voluntary prepayments of Term Loans
pursuant to Section 5.1) made during such period (other than in respect of
any revolving credit facility to the extent there is not an equivalent
permanent reduction in commitments thereunder) except to the extent financed
with the proceeds of other Indebtedness of Holdings or its Restricted
Subsidiaries, (v) an amount equal to the aggregate net non-cash gain on
the sale, lease, transfer or other disposition of assets by the Borrower and
the Restricted Subsidiaries during such period (other than sales in the
ordinary course of business) to the extent included in arriving at such
Consolidated Net Income, (vi) increases in Consolidated Working Capital
for such period (other than as a result of (A) acquisitions completed
during such period and (B) adjustments resulting from the application of
purchase accounting), (vii) payments by the Borrower and the Restricted
Subsidiaries during such period in respect of long-term liabilities of the
Borrower and the Restricted Subsidiaries other than Indebtedness, (viii) the
amount of cash Investments made during such period pursuant to Section 10.5
to the extent that such Investments were financed with internally generated
cash flow of the Borrower and the Restricted Subsidiaries, (ix) the amount
of dividends paid during such period pursuant to clause (b), (d) or (e) of
the proviso to Section 10.6 to the extent such dividends were paid with
the proceeds of any amount referred to in paragraph (a) of this definition,
(x) the aggregate amount of expenditures


 


12





















 


actually made
by the Borrower and the Restricted Subsidiaries in cash during such period
(including expenditures for the payment of financing fees) to the extent that
such expenditures are not expensed during such period, (xi) the aggregate
amount of any premium, make-whole or penalty payments actually paid in cash by
the Borrower and the Restricted Subsidiaries during such period that are
required to be made in connection with any prepayment of Indebtedness and that
are accounted for as extraordinary items and (xii) without duplication of
amounts deducted from Excess Cash Flow in prior periods, the aggregate
consideration required to be paid in cash by the Borrower or any of the
Restricted Subsidiaries pursuant to binding contracts (the “Contract
Consideration”) entered into prior to or during such period relating to
Permitted Acquisitions or Capital Expenditures to be consummated or made during
the period of four consecutive fiscal quarters of the Borrower following the end
of such period, provided that to the extent the
aggregate amount of internally generated cash actually utilized to finance such
Permitted Acquisitions or Capital Expenditures during such period of four
consecutive fiscal quarters is less than the Contract Consideration, the amount
of such shortfall shall be added to the calculation of Excess Cash Flow at the
end of such period of four consecutive fiscal quarters.


 


“Existing
Credit Agreement” shall mean the Credit Agreement, dated as of June 30,
2004, as amended, among Accellent Corp. (f/k/a Medical Device Manufacturing
Inc.), Accellent Inc. (f/k/a UTI Corporation), certain subsidiaries of
Accellent Inc., the lenders from time to time party thereto and Credit Suisse
First Boston, acting through its Cayman Islands Branch as administrative agent.


 


“Existing
Indenture” shall mean the Indenture, dated as of June 30, 2004, among
Accellent Inc., the subsidiary guarantors party thereto and U.S. Bank National
Association, as trustee.


 


“Existing
Letters of Credit” shall have the meaning provided in the preamble to this
Agreement.


 


“Existing
Notes” shall have the meaning provided in the recitals hereto.


 


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


 


“Fees”
shall mean all amounts payable pursuant to, or referred to in, Section 4.1.


 


“Final Date”
shall mean the date on which the Revolving Credit Commitments shall have
terminated, no Revolving Credit Loans shall be outstanding and the Letter of
Credit Outstandings shall have been reduced to zero.


 


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


 


“Foreign
Subsidiary” shall mean each Subsidiary of the Borrower that is not a
Domestic Subsidiary.


 


“Fronting
Fee” shall have the meaning provided in Section 4.1(c).


 


13





















 


“Funded
Debt” shall mean all indebtedness of the Borrower and the Restricted
Subsidiaries for borrowed money that matures more than one year from the date
of its creation or matures within one year from such date that is renewable or
extendable, at the option of the Borrower or one of the Restricted
Subsidiaries, to a date more than one year from such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date, including
all amounts of Funded Debt required to be paid or prepaid within one year from
the date of its creation and, in the case of the Borrower, Indebtedness in
respect of the Loans.


 


“GAAP”
shall mean generally accepted accounting principles in the United States of
America, as in effect from time to time; provided, however, that
if there occurs after the date hereof any change in GAAP that affects in any
respect the calculation of any covenant contained in Section 10, the
Lenders and the Borrower shall negotiate in good faith amendments to the
provisions of this Agreement that relate to the calculation of such covenant
with the intent of having the respective positions of the Lenders and the
Borrower after such change in GAAP conform as nearly as possible to their
respective positions as of the date of this Agreement and, until any such
amendments have been agreed upon, the covenants in Section 10 shall be
calculated as if no such change in GAAP has occurred.


 


“Governmental
Authority” shall mean any nation or government, any state, province,
territory or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.


 


“Guarantee”
shall mean the Guarantee, made by each Guarantor in favor of the Administrative
Agent for the benefit of the Secured Parties, substantially in the form of Exhibit A,
as the same may be amended, supplemented or otherwise modified from time to
time.


 


“Guarantee
and Collateral Exception Amount” shall mean, at any time: (a) $75,000,000
minus (b) any Indebtedness incurred by any Foreign Subsidiary, provided
that if such amount is a negative number, the Guarantee and Collateral
Exception Amount shall be zero.


 


“Guarantee
Obligations” shall mean, as to any Person, any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness of any other Person (the
“primary obligor”) in any manner, whether directly or indirectly,
including any obligation of such Person, whether or not contingent, (a) to
purchase any such Indebtedness or any property constituting direct or indirect
security therefor (b) to advance or supply funds (i) for the purchase
or payment of any such Indebtedness or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such Indebtedness
of the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise
to assure or hold harmless the owner of such Indebtedness against loss in
respect thereof; provided, however, that the term “Guarantee
Obligations” shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. 
The amount of any Guarantee Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the Indebtedness in respect of
which such Guarantee Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in good
faith.


 


“Guarantors”
shall mean Holdings and the Subsidiary Guarantors, other than the immaterial
Subsidiaries listed on Schedule 1.1(d).


 


“Hazardous
Materials” shall mean (a) any petroleum or petroleum products,
radioactive materials, friable asbestos, urea formaldehyde foam insulation,
transformers or other equipment that contain dielectric fluid containing
regulated levels of polychlorinated biphenyls, and radon gas; (b) any


 


14





















 


chemicals,
materials or substances defined as or included in the definition of “hazardous
substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous
waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”,
or “pollutants”, or words of similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance, which is prohibited,
limited or regulated by any Environmental Law.


 


“Hedge
Agreements” shall mean interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts, commodity price protection agreements or other
commodity price hedging agreements, and other similar agreements entered into
by the Borrower in the ordinary course of business (and not for speculative
purposes) in order to protect the Borrower or any of the Restricted Subsidiaries
against fluctuations in interest rates, currency exchange rates or commodity
prices.


 


“Historical
Financial Statements” means as of the Closing Date, (a) the audited financial
statements of Target and its Subsidiaries, for the immediately preceding three
fiscal years, consisting of balance sheets and the related consolidated
statements of income, stockholders’ equity and cash flows for such fiscal years,
in each case without qualification by the Borrower’s auditors and (b) the
unaudited consolidated balance sheets and related consolidated statements of
income, stockholders’ equity and cash flows of Target and its Subsidiaries for
each subsequent fiscal quarter ended 45 days prior to the Closing Date,
including, but not limited to, September 30, 2005.


 


“Holdings”
shall have the meaning provided in the preamble to this Agreement.


 


“Increased
Amount Date” as defined in Section 2.14.


 


“Indebtedness”
of any Person shall mean (a) all indebtedness of such Person for borrowed
money, (b) the deferred purchase price of assets or services that in
accordance with GAAP would be included as liabilities in the balance sheet of
such Person, (c) the face amount of all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn thereunder, (d) all
Indebtedness of a second Person secured by any Lien on any property owned by
such first Person, whether or not such Indebtedness has been assumed, (e) all
Capitalized Lease Obligations of such Person, (f) all obligations of such
Person under interest rate swap, cap or collar agreements, interest rate future
or option contracts, currency swap agreements, currency future or option
contracts, commodity price protection agreements or other commodity price
hedging agreements and other similar agreements and (g) without
duplication, all Guarantee Obligations of such Person, provided that
Indebtedness shall not include trade payables and accrued expenses, in each
case payable directly or through a bank clearing arrangement and arising in the
ordinary course of business.


 


“Initial
Financial Statement Delivery Date” shall mean the date on which Section 9.1
Financials are delivered to the Lenders under Section 9.1 for the first
full fiscal quarter commencing after the Closing Date.


 


“Interest
Period” shall mean, with respect to any Term Loan or Revolving Credit Loan,
the interest period applicable thereto, as determined pursuant to Section 2.9.


 


“Investment”
shall have the meaning provided in Section 10.5.


 


“Joinder
Agreement” means an agreement substantially in the form of Exhibit K.


 


“JPMCB”
shall mean JPMorgan Chase Bank, N.A., a New York banking corporation, and any
successor thereto by merger, consolidation or otherwise.


 


15





















 


“KKR”
shall mean each of Kohlberg Kravis Roberts & Co., L.P. and KKR Associates, L.P.


 


“L/C
Maturity Date” shall mean the date that is five Business Days prior to the
Revolving Credit Maturity Date.


 


“L/C
Participant” shall have the meaning provided in Section 3.3(a).


 


“L/C Participation”
shall have the meaning provided in Section 3.3(a).


 


“Lender”
shall have the meaning provided in the preamble to this Agreement.


 


“Lender
Default” shall mean (a) the failure (which has not been cured) of a
Lender to make available its portion of any Borrowing or to fund its portion of
any unreimbursed payment under Section 3.3 or (b) a Lender having
notified the Administrative Agent and/or the Borrower that it does not intend
to comply with the obligations under Section 2.1(b), 2.1(d) or 3.3,
in the case of either clause (a) or clause (b) above, as a
result of the appointment of a receiver or conservator with respect to such
Lender at the direction or request of any regulatory agency or authority.


 


“Letter of
Credit” shall mean each standby letter of credit issued pursuant to Section 3.1.


 


“Letter of
Credit Commitment” shall mean $25,000,000, as the same may be reduced from
time to time pursuant to Section 3.1.


 


“Letter of
Credit Exposure” shall mean, with respect to any Lender, at any time, the
sum of (a) the amount of any Unpaid Drawings in respect of which such
Lender has made (or is required to have made) payments to the Letter of Credit
Issuer pursuant to Section 3.4(a) at such time and (b) such
Lender’s Revolving Credit Commitment Percentage of the Letter of Credit
Outstanding at such time (excluding the portion thereof consisting of Unpaid
Drawings in respect of which the Lenders have made (or are required to have
made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a)).


 


“Letter of
Credit Fee” shall have the meaning provided in Section 4.1(b).


 


“Letter of
Credit Issuer” shall mean (a) JPMCB, any of its Affiliates or any
successor pursuant to Section 3.6, (b) Credit Suisse, Cayman Islands
Branch in the case of Existing Letters of Credit, or (c) any other Lender having
Revolving Credit Exposures agreed to by the Borrower, the Administrative Agent
and the other Letter of Credit Issuers, as applicable.  The Letter of Credit Issuer may, in its
discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Letter of Credit Issuer, and in each such case the term “Letter
of Credit Issuer” shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.  In the
event that there is more than one Letter of Credit Issuer at any time,
references herein and in the other Credit Documents to the Letter of Credit
Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of
the applicable Letter of Credit or to all Letter of Credit Issuers, as the
context requires.


 


“Letters of
Credit Outstanding” shall mean, at any time, the sum of, without
duplication, (a) the aggregate Stated Amount of all outstanding Letters of
Credit and (b) the aggregate amount of all Unpaid Drawings in respect of
all Letters of Credit.


 


“Letter of
Credit Request” shall have the meaning provided in Section 3.2.


 


16





















 


“Lien”
shall mean any mortgage, deed of trust, claim, charge, pledge, security
interest, hypothecation, assignment, lien (statutory or other) or encumbrance of
any kind (including any agreement to give any of the foregoing, any conditional
sale or other title retention agreement or any lease in the nature thereof).


 


“Loan”
shall mean any Revolving Credit Loan, Swingline Loan, Term Loan or New Term
Loan made by any Lender hereunder.


 


“Management
Group” shall mean, at any time, the Chairman of the Board, any President,
any Executive Vice President or Vice President, any Managing Director, any
Treasurer and any Secretary of any of Holdings, the Borrower or any
Subsidiaries at such time.


 


“Management Investors”
means the management officers and employees of Holdings and its Subsidiaries
who are investors in Holdings on the Closing Date.


 


“Mandatory
Borrowing” shall have the meaning provided in Section 2.1(d).


 


“Material
Adverse Change” shall mean any event or circumstance which has resulted or
is reasonably likely to result in a change in the business, assets, operations,
properties or financial condition of Holdings, the Borrower and its
Subsidiaries, taken as a whole, that would materially adversely affect the
ability of Holdings, the Borrower and the other Credit Parties, taken as a
whole, to perform their obligations under this Agreement or any of the other
Credit Documents.


 


“Material
Adverse Effect” shall mean a circumstance or condition affecting the
business, assets, operations, properties or financial condition of Holdings,
the Borrower and the Subsidiaries, taken as a whole, that would materially
adversely affect (a) the ability of Holdings, the Borrower and the other
Credit Parties, taken as a whole, to perform their obligations under this
Agreement or any of the other Credit Documents or (b) the rights and
remedies of the Administrative Agent and the Lenders under this Agreement or
any of the other Credit Documents.


 


“Material
Subsidiary” shall mean, at any date of determination, each Restricted
Subsidiary of the Borrower (a) whose total assets at the last day of the
Test Period ending on the last day of the most recent fiscal period for which Section 9.1
Financials have been delivered were equal to or greater than 5% of the
consolidated total assets of the Borrower and the Restricted Subsidiaries at
such date or (b) whose gross revenues for such Test Period were equal to
or greater than 5% of the consolidated gross revenues of the Borrower and the
Restricted Subsidiaries for such period, in each case determined in accordance
with GAAP.


 


“Maturity
Date” shall mean the Term Loan Maturity Date or the Revolving Credit Maturity
Date.


 


“Merger”
shall have the meaning provided in the recitals hereto.


 


“Merger
Agreement” shall mean that certain Agreement and Plan of Merger dated as of
October 7, 2005, by and among Accellent Inc. and Holdings.


 


“Merger Sub”
shall have the meaning provided in the recitals hereto.


 


“Minimum
Borrowing Amount” shall mean (a) with respect to a Borrowing of Term
Loans or Revolving Credit Loans, $2,000,000 and (b) with respect to a
Borrowing of Swingline Loans, $100,000.


 


17





















 


“Minority
Investment” shall mean any Person (other than a Subsidiary) in which the
Borrower or any Restricted Subsidiary owns capital stock or other equity
interests.


 


“Moody’s”
shall mean Moody’s Investors Service, Inc. or any successor by merger or
consolidation to its business.


 


“Mortgage”
shall mean an agreement, including but not limited to, a mortgage, deed of
trust or other security document creating and evidencing a Lien on the
Mortgaged Property entered into by the owner of a Mortgaged Property and the
Administrative Agent for the benefit of the Secured Parties in respect of that
Mortgaged Property, substantially in the form of Exhibit B or other
form reasonably satisfactory to the Administrative Agent, as the same may be
amended, supplemented or otherwise modified from time to time.


 


“Mortgaged
Property” shall mean, initially, each parcel of real estate and the
improvements thereto owned by a Credit Party and identified on Schedule 1.1(b),
and includes each other parcel of real property and improvements thereto with
respect to which a Mortgage is granted pursuant to Section 9.15.


 


“Net Cash
Proceeds” shall mean, with respect to any Prepayment Event or the issuance
after the Closing Date by the Borrower of any capital stock, (a) the gross
cash proceeds (including payments from time to time in respect of installment
obligations, if applicable) received by or on behalf of Holdings, the Borrower
or any of the Restricted Subsidiaries in respect of such Prepayment Event or
issuance, as the case may be, less (b) the sum of:


 


(i)                                     in
the case of any Prepayment Event, the amount, if any, of all taxes paid or estimated
to be payable by any of Holdings, the Borrower or any of the Restricted
Subsidiaries in connection with such Prepayment Event,


 


(ii)                                  in
the case of any Prepayment Event, the amount of any reasonable reserve established
in accordance with GAAP against any liabilities (other than any taxes deducted
pursuant to clause (i) above) (x) associated with the assets that are
the subject of such Prepayment Event and (y) retained by any of Holdings,
the Borrower or any of the Restricted Subsidiaries, provided that the
amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net Cash
Proceeds of such a Prepayment Event occurring on the date of such reduction,


 


(iii)                               in
the case of any Prepayment Event, the amount of any Indebtedness secured by a
Lien on the assets that are the subject of such Prepayment Event to the extent
that the instrument creating or evidencing such Indebtedness requires that such
Indebtedness be repaid upon consummation of such Prepayment Event,


 


(iv)                              in
the case of any Asset Sale Prepayment Event (other than a transaction permitted
by Section 10.4(e)) or Casualty Event, the amount of any proceeds of such
Asset Sale Prepayment Event or Casualty Event that the Borrower has reinvested
(or intends to reinvest within the time period set forth in the following
proviso) in the business of the Borrower or any of the Restricted Subsidiaries
(subject to Section 9.14); provided, Borrower shall reinvest such
Net Cash Proceeds in assets useful for its business within (x) fifteen
(15) months following receipt of such Net Cash Proceeds or (y) if the
Borrower enters into a legally binding commitment to reinvest such Net Cash
Proceeds within fifteen (15) months following receipt thereof, within the
longer of (A) 15 months following the receipt of such Net Cash
Proceeds and (B) one hundred and eighty (180) days of the date of such
legally binding commitment; provided  further that if any Net Cash


 


18





















 


Proceeds are no longer intended to be or cannot be so reinvested at any
time after delivery of a notice of reinvestment election, an amount equal to
any such Net Cash Proceeds shall be applied within five (5) Business Days
after the Borrower reasonably determines that such Net Cash Proceeds are no
longer intended to be or cannot be so reinvested to the prepayment of the Term
Loans as set forth in this clause (iv), and


 


(v)                                 in
the case of any Prepayment Event or the issuance by the Borrower of any capital
stock, reasonable and customary fees, commissions, expenses, issuance costs,
discounts and other costs paid by Holdings, the Borrower or any of the
Restricted Subsidiaries, as applicable, in connection with such Prepayment
Event or issuance, as the case may be (other than those payable to Holdings,
the Borrower or any Subsidiary of the Borrower), in each case only to the
extent not already deducted in arriving at the amount referred to in
clause (a) above.


 


“New Term
Loan Commitments” as defined in Section 2.14.


 


“New Term
Loan Lender” as defined in Section 2.14.


 


“New Term
Loan Maturity Date” means the date that New Term Loans of a Series shall
become due and payable in full hereunder, as specified in the applicable
Joinder Agreement, including by acceleration or otherwise.


 


“New Term
Loans” as defined in Section 2.14.


 


“Non-Defaulting
Lender” shall mean and include each Lender other than a Defaulting Lender.


 


“Non-Excluded
Taxes” shall have the meaning provided in Section 5.4(a).


 


“Nonrenewal
Notice Date” shall have the meaning provided in Section 3.1.


 


“Non-U.S. Lender” shall mean any Lender that is a
not a “United States person” as defined in Section 770l(a)(30) of
the Code.


 


“Notice of
Borrowing” shall have the meaning provided in Section 2.3.


 


“Notice of
Conversion or Continuation” shall have the meaning provided in Section 2.6.


 


“Notice of
Intent to Cure” shall have the meaning provided in Section 9.1(d).


 


“Obligations”
shall have the meaning assigned to such term in the Security Documents.


 


“Parent”
shall mean Accellent Holdings Corp., a Delaware corporation.


 


“Participant”
shall have the meaning provided in Section 13.6(c)(i).


 


“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002
of ERISA, or any successor thereto.


 


“Perfection
Certificate” shall mean a certificate of the Borrower in the form of Exhibit C
or any other form approved by the Administrative Agent.


 


19





















 


“Permitted
Acquisition” shall mean the acquisition, by merger or otherwise, by the
Borrower or any of the Restricted Subsidiaries of assets or capital stock or
other equity interests, so long as (a) such acquisition and all
transactions related thereto shall be consummated in accordance with applicable
law; (b) such acquisition shall result in the issuer of such capital stock
or other equity interests becoming (i) a Restricted Subsidiary and (ii) in
the case of a Restricted Domestic Subsidiary, a Subsidiary Guarantor to the
extent required by Section 9.11; (c) such acquisition shall result in
the Administrative Agent, for the benefit of the Secured Parties, being granted
a security interest in any capital stock or any assets so acquired to the
extent required by Sections 9.11, 9.12 and/or 9.15; (d) after giving
effect to such acquisition, no Default or Event of Default shall have occurred
and be continuing; and (e) the Borrower shall be in compliance, on a pro
forma basis after giving effect to such acquisition (including any Indebtedness
assumed or permitted to exist or incurred pursuant to Sections 10.1(A)(j)
and 10.1(A)(k), respectively, and any related Pro Forma Adjustment), with the
covenants set forth in Sections 10.9 and 10.10, as such covenants are
recomputed as at the last day of the most recently ended Test Period under such
Sections as if such acquisition had occurred on the first day of such Test
Period.


 


“Permitted
Additional Notes” shall mean Permitted Additional Subordinated Notes and Permitted
Senior Notes.


 


“Permitted
Additional Subordinated Notes” shall mean subordinated notes, (i) the
terms of which (1) do not provide for any scheduled repayment,
mandatory redemption or sinking fund obligation prior to the date on which the
final maturity of the Subordinated Notes occurs (as in effect on the Closing
Date) (other than customary offers to purchase upon a change of control, asset
sale or event of loss and customary acceleration rights after an event of
default) and (2) provide for subordination to the Obligations under the
Credit Documents on substantially the same terms as set forth in the
Subordinated Notes, (ii) the covenants, events of default, Subsidiary guarantees
and other terms of which (other than interest rate and redemption premiums),
taken as a whole, are not more restrictive to the Borrower and the Subsidiaries
than in the Subordinated Notes and (iii) of which no Subsidiary of the
Borrower (other than a Guarantor) is an obligor under such notes that is not an
obligor under the Subordinated Notes.


 


“Permitted
Additional Subordinated Notes Indenture” shall mean any indenture pursuant
to which any Permitted Additional Subordinated Notes are issued.


 


“Permitted
Capital Expenditure Amount” shall have the meaning given to such term in Section 10.11.


 


“Permitted
Equity Issuance” shall mean any sale or issuance of any Qualified Equity
Interests of Holdings to the extent permitted hereunder.


 


“Permitted
Holders” means KKR and its Affiliates, Bain and its Affiliates and the
Permitted Investors.


 


“Permitted
Investments” shall mean (a) securities issued or unconditionally
guaranteed by the United States government or any agency or instrumentality
thereof, in each case having maturities of not more than 24 months from the
date of acquisition thereof; (b) securities issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof or any political subdivision of any such state
or any public instrumentality thereof having maturities of not more than 24
months from the date of acquisition thereof and, at the time of acquisition,
having an investment grade rating generally obtainable from either S&P or
Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, then from another nationally recognized rating service); (c) commercial
paper issued by any Lender or any bank holding company owning any Lender; (d) commercial
paper maturing no more than 12 months after the date of creation thereof
and, at the time


 


20





















 


of
acquisition, having a rating of at least A-2 or P-2 from either S&P or
Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized rating
service); (e) domestic and Eurodollar certificates of deposit or bankers’
acceptances maturing no more than two years after the date of acquisition
thereof issued by any Lender or any other bank having combined capital and
surplus of not less than $250,000,000 in the case of domestic banks and
$100,000,000 (or the dollar equivalent thereof) in the case of foreign banks; (f) repurchase
agreements with a term of not more than 30 days for underlying securities
of the type described in clauses (a), (b) and (e) above entered into
with any bank meeting the qualifications specified in clause (e) above or
securities dealers of recognized national standing; (g) marketable
short-term money market and similar securities, having a rating of at least A-2
or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor
Moody’s shall be rating such obligations, an equivalent rating from another nationally
recognized rating service); (h) shares of investment companies that are
registered under the Investment Company Act of 1940 and invest solely in one or
more of the types of securities described in clauses (a) through (g) above;
and (i) in the case of investments by any Restricted Foreign Subsidiary or
investments made in a country outside the United States of America, other
customarily utilized high-quality investments in the country where such
Restricted Foreign Subsidiary is located or in which such investment is made.


 


“Permitted
Investors” shall mean the Management Investors and certain other investors in
Parent as of the Closing Date that are reasonably satisfactory to the Joint
Lead Arrangers.


 


“Permitted
Liens” shall mean (a) Liens for taxes, assessments or governmental
charges or claims not yet due or which are being contested in good faith and by
appropriate proceedings for which appropriate reserves have been established in
accordance with GAAP; (b) Liens in respect of property or assets of the
Borrower or any of the Subsidiaries imposed by law, such as carriers’,
warehousemen’s and mechanics’ Liens and other similar Liens arising in the
ordinary course of business, in each case so long as such Liens arise in the
ordinary course of business and do not individually or in the aggregate have a
Material Adverse Effect; (c) Liens arising from judgments or decrees in
circumstances not constituting an Event of Default under Section 11.12; (d) Liens
incurred or deposits made in connection with workers’ compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business; (e) ground
leases in respect of real property on which facilities owned or leased by the
Borrower or any of its Subsidiaries are located; (f) easements,
rights-of-way, restrictions, minor defects or irregularities in title and other
similar charges or encumbrances not interfering in any material respect with
the business of Holdings or the Borrower and its Subsidiaries, taken as a
whole; (g) any interest or title of a lessor or secured by a lessor’s
interest under any lease permitted by this Agreement; (h) 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; (i) Liens
on goods the purchase price of which is financed by a documentary letter of
credit issued for the account of the Borrower or any of its Subsidiaries, provided
that such Lien secures only the obligations of the Borrower or such
Subsidiaries in respect of such letter of credit to the extent permitted under Section 10.1;
(j) leases or subleases granted to others not interfering in any material
respect with the business of Holdings, the Borrower and its Subsidiaries, taken
as a whole; and (k) Liens created in the ordinary course of business in
favor of banks and other financial institutions over credit balances of any
bank accounts of any of Holdings, the Borrower and the Restricted Subsidiaries
held at such banks or financial institutions, as the case may be, to facilitate
the operation of cash pooling and/or interest set-off arrangements in respect
of such bank accounts in the ordinary course of business.


 


“Permitted
Sale Leaseback” shall mean any Sale Leaseback consummated by the Borrower
or any of the Restricted Subsidiaries after the Closing Date, provided
that such Sale Leaseback is consummated for fair value as determined at the
time of consummation in good faith by the Borrower and, in the case of any Sale
Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of


 


21





















 


which exceed $5,000,000,
the Board of Directors of the Borrower (which such determination may take into
account any retained interest or other investment of the Borrower or such
Restricted Subsidiary in connection with, and any other material economic terms
of, such Sale Leaseback).


 


“Permitted
Senior Notes” shall mean unsecured senior notes, (a) the terms of
which do not provide for any scheduled repayment, mandatory redemption or
sinking fund obligation prior to the date on which the Term Loan Maturity Date
occurs (other than customary offers to purchase upon a change of control, asset
sale or event of loss and customary acceleration rights after an event of
default), (b) the covenants, events of default, Subsidiary guarantees and
other terms of which (other than interest rate and redemption premiums), taken
as a whole, are not more restrictive to the Borrower and the Subsidiaries than
in the Subordinated Notes (it being understood that customary differences from
the Subordinated Notes to reflect that such notes are senior notes shall be
permitted) and (c) of which no Subsidiary of the Borrower (other than a
Guarantor) is an obligor under such notes that is not an obligor under the
Subordinated Notes.


 


“Permitted
Senior Notes Indenture” shall mean any indenture pursuant to which any
Permitted Senior Notes are issued.


 


“Permitted
Subordinated Debt” shall mean the Subordinated Notes, provided that
the aggregate principal amount of such Subordinated Notes outstanding at any
time shall not exceed $300,000,000.


 


“Person”
shall mean any individual, partnership, joint venture, firm, corporation,
limited liability company, association, trust or other enterprise or any
Governmental Authority.


 


“Plan”
shall mean any multiemployer or single-employer plan, as defined in Section 4001
of ERISA and subject to Title IV of ERISA, that is or was within any of the
preceding five plan years maintained or contributed to by (or to which there is
or was an obligation to contribute or to make payments to) Holdings, the
Borrower, a Subsidiary or an ERISA Affiliate.


 


“Pledge
Agreement” shall mean the Pledge Agreement, entered into by any of
Holdings, the Borrower, the other pledgors party thereto and the Administrative
Agent for the benefit of the Lenders, substantially in the form of Exhibit D,
as the same may be amended, supplemented or otherwise modified from time to
time.


 


“Prepayment
Event” shall mean any Asset Sale Prepayment Event, Casualty Event, Debt
Incurrence Prepayment Event or any Permitted Sale Leaseback.


 


“Prime Rate”
shall mean the rate of interest per annum publicly announced from time to time
by the Administrative Agent as its reference rate in effect at its principal
office in New York City (the Prime Rate not being intended to be the lowest
rate of interest charged by JPMCB in connection with extensions of credit to
debtors).


 


“Pro Forma
Adjustment” shall mean, for any test period that includes any of the six
fiscal quarters first ending following any Permitted Acquisition, with respect
to the Acquired EBITDA of the applicable Acquired Entity or Business or the
Consolidated EBITDA of the Borrower affected by such acquisition, the pro forma
increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as
the case may be, projected by the Borrower in good faith as a result of
reasonably identifiable and factually supportable net cost savings or
additional net costs, as the case may be, realizable during such period by
combining the operations of such Acquired Entity or Business with the
operations of the Borrower and its Subsidiaries, provided that so long
as such net cost savings or additional net costs will be


 


22





















 


realizable at
any time during such six-quarter period, it may be assumed, for purposes of
projecting such pro forma increase or decrease to such Acquired EBITDA or
such Consolidated EBITDA, as the case may be, that such net cost savings or
additional net costs will be realizable during the entire such period; provided
further that any such pro forma increase or decrease to such
Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be
without duplication for net cost savings or additional net costs actually
realized during such period and already included in such Acquired EBITDA or
such Consolidated EBITDA, as the case may be.


 


“Pro Forma
Adjustment Certificate” shall mean any certificate of an Authorized Officer
of the Borrower delivered pursuant to Section 9.1(h) or setting forth
the information described in clause (iv) to Section 9.1(d).


 


“Qualified
Equity Interests” shall mean any Equity Interests that are not Disqualified
Equity Interests.


 


“Qualified
PIK Securities” shall mean (1) any preferred capital stock or preferred
equity interest of Holdings (a) that does not provide for any cash
dividend payments or other cash distributions in respect thereof on or prior to
the Term Loan Maturity Date and (b) that by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event does not (i)(x) mature or
become mandatorily redeemable pursuant to a sinking fund obligation or
otherwise, (y) become convertible or exchangeable at the option of the holder
thereof for Indebtedness or preferred stock that is not Qualified PIK
Securities or (z) become redeemable at the option of the holder thereof
(other than as a result of a change of control if such redemption is subject to
the prior repayment of the Obligations under the Credit Documents), in whole or
in part, in each case on or prior to the first anniversary of the Term Loan
Maturity Date and (ii) provide holders thereunder with any rights upon the
occurrence of a “change of control” event prior to the repayment of the
Obligations under the Credit Documents and (2) any Indebtedness of Holdings
that is not guaranteed by the Borrower or any Subsidiary and which has payment
terms at least as favorable to the Borrower and Lenders as described in clause
(1)(a) above and is subordinated on customary terms and conditions
(including remedy standstills at all times prior to the Term Loan Maturity
Date) and has other terms, other than with respect to interest rates, at least
as favorable to the Borrower and Lenders as the Subordinated Notes.


 


“Real
Estate” shall have the meaning given to that term in Section 9.1(f).


 


“Recapitalization”
shall mean the consummation of the Merger and the Refinancing.


 


“Reference
Lender” shall mean JPMCB.


 


“Refinancing”
shall have the meaning provided in the recitals hereto.


 


“Register”
shall have the meaning provided in Section 13.6(b)(iv).


 


“Regulation D”
shall mean Regulation D of the Board as from time to time in effect and
any successor to all or a portion thereof establishing reserve requirements.


 


“Regulation T”
shall mean Regulation T of the Board as from time to time in effect and
any successor to all or a portion thereof establishing margin requirements.


 


“Regulation U”
shall mean Regulation U of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.


 


23





















 


“Regulation X”
shall mean Regulation X of the Board as from time to time in effect and
any successor to all or a portion thereof establishing margin requirements.


 


“Related
Parties” means, with respect to any specified Person, such Person’s
Affiliates and the directors, officers, employees, agents, trustees, advisors
of such Person and any Person that possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of such Person,
whether through the ability to exercise voting power, by contract or otherwise.


 


“Repayment
Amount” shall have the meaning provided in Section 2.5(b).


 


“Repayment
Date” shall have the meaning provided in Section 2.5(b).


 


“Reportable
Event” shall mean an event described in Section 4043 of ERISA and the
regulations thereunder (other than those events as to which the thirty-day
notice period is waived).


 


“Required
Lenders” shall mean, at any date, (a) Non-Defaulting Lenders having or
holding a majority of the sum of (i) the Adjusted Total Revolving Credit
Commitment at such date, (ii) the Adjusted Total Term Loan Commitment at
such date, (iii) the outstanding principal amount of the Term Loans
(excluding the Term Loans held by Defaulting Lenders) at such date and (iv) the
outstanding principal amount of the New Term Loans, if any (excluding the New
Term Loans held by Defaulting Lenders), or (b) if the Total Revolving
Credit Commitment and the Total Term Loan Commitment have been terminated or
for the purposes of acceleration pursuant to Section 11, the holders
(excluding Defaulting Lenders) of a majority of the outstanding principal
amount of the Loans and Letter of Credit Exposures (excluding the Loans and
Letter of Credit Exposures of Defaulting Lenders) in the aggregate at such
date.


 


“Required
Revolving Credit Lenders” shall mean, at any date, (a) Non-Defaulting
Lenders having or holding a majority of the Adjusted Total Revolving
Credit Commitment that relates to Revolving Credit Loans at such date or (b) if
the Total Revolving Credit Commitment has been terminated, the holders
(excluding Defaulting Lenders) of a majority of the outstanding principal
amount of the Revolving Credit Loans and Letter of Credit Exposures (excluding
the Loans and Letter of Credit Exposures of Defaulting Lenders) in the
aggregate at such date.


 


“Required
Term Lenders” shall mean, at any date, Non-Defaulting Lenders having or
holding a majority of the sum of (a) the portion of the Adjusted Total
Term Loan Commitment that relates to Term Loan Commitments and New Term Loan Commitments,
if any, at such date and (b) the outstanding principal amount of the Term
Loans and New Term Loans, if any (excluding the Term Loans and New Term Loans
held by Defaulting Lenders) in the aggregate at such date.


 


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


 


“Restricted
Domestic Subsidiary” shall mean each Restricted Subsidiary that is also a
Domestic Subsidiary.


 


“Restricted
Foreign Subsidiary” shall mean a Foreign Subsidiary that is a Restricted Subsidiary.


 


24





















 


“Restricted
Subsidiary” shall mean any Subsidiary of the Borrower other than an Unrestricted
Subsidiary.


 


“Revolving
Credit Commitment” shall mean, (a) with respect to each Lender that is
a Lender on the date hereof, the amount set forth opposite such Lender’s name
on Schedule 1.1(c) as such Lender’s “Revolving Credit Commitment”
and (b) in the case of any Lender that becomes a Lender after the date
hereof, the amount specified as such Lender’s “Revolving Credit Commitment” in
the Assignment and Acceptance pursuant to which such Lender assumed a portion
of the Total Revolving Credit Commitment, in each case of the same may be
changed from time to time pursuant to terms hereof.  The aggregate amount of the Revolving Credit
Commitment as of the Closing Date is $75,000,000.


 


“Revolving
Credit Commitment Percentage” shall mean at any time, for each Lender, the
percentage obtained by dividing (a) such Lender’s Revolving Credit
Commitment by (b) the aggregate amount of the Revolving Credit
Commitments, provided that at any time when the Total Revolving Credit
Commitment shall have been terminated, each Lender’s Revolving Credit
Commitment Percentage shall be its Revolving Credit Commitment Percentage as in
effect immediately prior to such termination.


 


“Revolving
Credit Exposure” shall mean, with respect to any Lender at any time, the
sum of (a) the aggregate principal amount of the Revolving Credit Loans of
such Lender then outstanding, (b) such Lender’s Letter of Credit Exposure
at such time and (c) such Lender’s Revolving Credit Commitment Percentage
of the aggregate principal amount of all outstanding Swingline Loans.


 


“Revolving
Credit Loans” shall have the meaning provided in Section 2.1(b).


 


“Revolving
Credit Maturity Date” shall mean the date that is six years after the
Closing Date, or, if such date is not a Business Day, the next preceding
Business Day.


 


“Sale
Leaseback” shall mean any transaction or series of related transactions pursuant
to which the Borrower or any of the Restricted Subsidiaries (a) sells,
transfers or otherwise disposes of any property, real or personal, whether now
owned or hereafter acquired, and (b) as part of such transaction,
thereafter rents or leases such property or other property that it intends to
use for substantially the same purpose or purposes as the property being sold,
transferred or disposed.


 


“S&P”
shall mean Standard & Poor’s Ratings Services or any successor by
merger or consolidation to its business.


 


“Scheduled
Capital Expenditure Amount” shall have the meaning assigned to such term in
Section 10.11. 


 


“SEC”
shall mean the Securities and Exchange Commission or any successor thereto.


 


“Section 9.1
Financials” shall mean the financial statements delivered, or required to
be delivered, pursuant to Section 9.1(a) or (b) together with
the accompanying officer’s certificate delivered, or required to be delivered,
pursuant to Section 9.1(e).


 


“Secured
Parties” shall have the meaning assigned to such term in the applicable
Security Documents.


 


“Security
Agreement” shall mean the Security Agreement entered into by the Borrower,
the other grantors party thereto and the Administrative Agent for the benefit
of the Secured Parties, substantially


 


25





















 


in the form of
Exhibit E, as the same may be amended, supplemented or otherwise
modified from time to time.


 


“Security
Documents” shall mean, collectively, (a) the Guarantee, (b) the
Pledge Agreement, (c) the Security Agreement, (d) the Mortgages, and (e) each
other security agreement or other instrument or document executed and delivered
pursuant to Section 9.11 or 9.12 or pursuant to any of the Security
Documents to secure any of the Obligations.


 


“Series”
as defined in Section 2.14.


 


“Sold
Entity or Business” shall have the meaning provided in the definition of
the term “Consolidated EBITDA”.


 


“Solvent”
means, with respect to the Borrower, that as of the Closing Date, both (i) (a) the
sum of the Borrower’s debt (including contingent liabilities) does not exceed
the present fair saleable value of the Borrower’s present assets; (b) the
Borrower’s capital is not unreasonably small in relation to its business as
contemplated on the Closing Date; and (c) the Borrower has not incurred
and does not intend to incur, or believe that it will incur, debts including
current obligations beyond its ability to pay such debts as they become due
(whether at maturity or otherwise); 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 (irrespective of whether such contingent liabilities meet the
criteria for accrual under Statement of Financial Accounting Standard No. 5).


 


“Specified
Obligations” shall mean Obligations consisting of (a) the principal
and interest on Loans and (b) reimbursement obligations in respect of Letters
of Credit.


 


“Specified
Subsidiary” shall mean, at any date of determination, (a) any Material
Subsidiary or (b) any Unrestricted Subsidiary (i) whose total assets
at the last day of the Test Period ending on the last day of the most recent
fiscal period for which Section 9.1 Financials have been delivered were
equal to or greater than 10% of the consolidated total assets of the Borrower
and the Subsidiaries at such date or (ii) whose gross revenues for such
Test Period were equal to or greater than 10% of the consolidated gross
revenues of the Borrower and the Subsidiaries for such period, in each case
determined in accordance with GAAP and (c) each other Subsidiary that,
when combined with any other Subsidiary that is the subject of an Event of
Default under Section 11.5, would constitute a Specified Subsidiary under
clause (a) or (b) above.


 


“Sponsor
Management Agreement” means the Management Agreement between certain of the
management companies associated with KKR and Bain and the Borrower.


 


“Stated Amount”
of any Letter of Credit shall mean the maximum amount from time to time
available to be drawn thereunder, determined without regard to whether any conditions
to drawing could then be met.


 


“Statutory
Reserve Rate” shall mean for any day as applied to any Eurodollar Loan, a
fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the aggregate of the maximum
reserve percentages that are in effect on that day (including any marginal,
special, emergency or supplemental reserves), expressed as a decimal, as
prescribed by the Board and to which the Administrative Agent is subject, for
eurocurrency funding 


 


26





















 


(currently
referred to as “Eurocurrency Liabilities” in Regulation D of the
Board).  Such reserve percentages shall
include those imposed pursuant to such Regulation D.  Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation.  The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.


 


“Subordinated
Indebtedness” shall mean Indebtedness of the Borrower or any Guarantor that
is by its terms subordinated in right of payment to the obligations of the
Borrower and such Guarantor, as applicable, under this Agreement.


 


“Subordinated
Note Indenture” shall mean the Indenture dated as of the Closing Date,
among the Borrower, the guarantors party thereto and The Bank of New York, as
trustee, pursuant to which the Subordinated Notes are issued, as the same may
be amended, supplemented or otherwise modified from time to time to the extent
permitted by Section 10.7(c).


 


“Subordinated
Notes” shall mean (a) the Subordinated Notes defined in the recitals
hereto and (b) any replacement or refinancing thereof having terms no more
adverse to the interests of the Lenders than the terms thereof, provided
that any such amendment, replacement or refinancing shall bear a rate of
interest determined by the Board of Directors of the Borrower to be a market
rate of interest at the date of such amendment, replacement or refinancing and
have other terms customary for similar issuances under similar market
conditions or otherwise be on terms reasonably acceptable to the Administrative
Agent.


 


“Subsidiary”
of any Person shall mean and include (a) any corporation more than 50% of
whose stock of any class or classes having by the terms thereof ordinary voting
power to elect a majority of the directors of such corporation (irrespective of
whether or not at the time stock of any class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person directly or indirectly through
Subsidiaries and (b) any partnership, association, joint venture or other
entity in which such Person directly or indirectly through Subsidiaries has
more than a 50% equity interest at the time. 
Unless otherwise expressly provided, all references herein to a “Subsidiary”
shall mean a Subsidiary of the Borrower.


 


“Subsidiary
Guarantors” shall mean (a) each Domestic Subsidiary (other than an Unrestricted
Subsidiary) on the Closing Date and (b) each Domestic Subsidiary that
becomes a party to the Guarantee after the Closing Date pursuant to Section 9.11.


 


“Successful
Tender Offer” shall have the meaning provided in the recitals hereto.


 


“Survey”
shall mean a survey of any Mortgaged Property (and all improvements thereon)
which is (a) (i) prepared by a surveyor or engineer licensed to
perform surveys in the jurisdiction where such Mortgaged Property is located, (ii) dated
(or redated) not earlier than six months prior to the date of delivery thereof
unless there shall have occurred within six months prior to such date of
delivery any exterior construction on the site of such Mortgaged Property or
any easement, right of way or other interest in the Mortgaged Property has been
granted or become effective through operation of law or otherwise with respect
to such Mortgaged Property which, in either case, can be depicted on a survey,
in which events, as applicable, such survey shall be dated (or redated) after
the completion of such construction or if such construction shall not have been
completed as of such date of delivery, not earlier than 20 days prior to such
date of delivery, or after the grant or effectiveness of any such easement,
right of way or other interest in the Mortgaged Property, (iii) certified
by the surveyor (in a manner reasonably acceptable to the Administrative Agent)
to the Administrative Agent, the Collateral Agent and the Title Company,


 


27





















 


(iv) complying
in all respects with the minimum detail requirements of the American Land Title
Association as such requirements are in effect on the date of preparation of
such survey and (v) sufficient for the Title Company to remove all
standard survey exceptions from the title insurance policy (or commitment)
relating to such Mortgaged Property and issue the endorsements reasonably
requested by the Administrative Agent.


 


“Swingline
Commitment” shall mean $10,000,000.


 


“Swingline
Lender” shall mean JPMCB in its capacity as lender of Swingline Loans
hereunder.


 


“Swingline
Loans” shall have the meaning provided in Section 2.1(c).


 


“Swingline
Maturity Date” shall mean, with respect to any Swingline Loan, the date
that is five Business Days prior to the Revolving Credit Maturity Date.


 


“Syndication
Agent” shall mean JPMCB, together with its affiliates, as the syndication
agent for the Lenders under this Agreement and the other Credit Documents.


 


“Target”
shall have the meaning provided in the recitals hereto.


 


“Target
Material Adverse Effect” shall mean any state of facts, change, event
effect or occurrence (when taken together with all other states of fact,
changes, events, effects or occurrences) that is materially adverse to the
business, properties, assets, liabilities, financial condition, or results of
operations of Target and its Subsidiaries taken as a whole; provided, however,
that in no event shall any of the following, alone or in combination, be deemed
to constitute a Target Material Adverse Effect: 
(a) a downturn in general economic, business, regulatory or
political conditions or other changes therein, (b) effects or changes that
are generally applicable to the industries and markets in which Target and its
Subsidiaries operate, (c) changes in the United States or world financial
markets, (d) changes in applicable law or in GAAP, (e) any ratings
decline or price decline in Accellent Corp.’s publicly traded debt, (f) effects
arising from war or terrorism or (g) effects directly or primarily arising
out of the execution and delivery of the Merger Agreement, the transactions
contemplated thereby or the public announcement thereof, unless, in each case
of the foregoing clauses (a), (b), (c) and (f) such change, event,
effect or occurrence has had a materially disproportionate effect on Target and
its Subsidiaries taken as a whole as compared to other Persons in the industry
in which Target and its Subsidiaries operate. 



 


“Tender
Offer” shall have the meaning provided in the recitals hereto.


 


“Term Loan”
shall have the meaning provided in Section 2.1(a).


 


“Term Loan
Commitment” shall mean, (a) in the case of each Lender that is a
Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule 1.1(c) as
such Lender’s “Term Loan Commitment” and (b) in the case of any Lender
that becomes a Lender after the date hereof, the amount specified as such
Lender’s “Term Loan Commitment” in the Assignment and Acceptance pursuant to
which such Lender assumed a portion of the Total Term Loan Commitment, in each
case as the same may be changed from time to time pursuant to the terms
hereof.  The aggregate amount of the Term
Loan Commitments as of the Closing Date is $400,000,000.


 


“Term Loan
Maturity Date” shall mean the date that is seven years after the Closing
Date, or, if such date is not a Business Day, the next preceding Business Day.


 


28





















 


“Test
Period” shall mean, for any determination under this Agreement, the four
consecutive fiscal quarters of the Borrower then last ended.


 


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


 


“Total
Assets” shall mean the total assets of the Borrower and its Restricted
Subsidiaries on a consolidated basis, as shown on the most recent balance sheet
of the Borrower or such other Person as may be expressly stated.


 


“Total
Commitment” shall mean the sum of the Total Term Loan Commitment and the
Total Revolving Credit Commitment.


 


“Total
Credit Exposure” shall mean, at any date, the sum of (a) the Total
Revolving Credit Commitment at such date, (b) the Total Term Loan
Commitment at such date and (c) the outstanding principal amount of all
Term Loans at such date.


 


“Total
Revolving Credit Commitment” shall mean the sum of the Revolving Credit
Commitments of all the Lenders.


 


“Total Term
Loan Commitment” shall mean the sum of the Term Loan Commitments and New
Term Loan Commitments, if applicable, of all the Lenders.


 


“Transaction
Expenses” shall mean any fees or expenses incurred or paid by Holdings or
any of its Subsidiaries in connection with the Transactions and the
transactions contemplated hereby and thereby.


 


“Transactions”
shall mean, collectively, (a) the consummation of the Acquisition and the
Merger, (b) the Refinancing, (c) the initial funding of the Loans
hereunder and the effectiveness of the Credit Documents, (d) the
consummation of any other transactions in connection with the foregoing and (e) the
payment of the Transaction Expenses.


 


“Transferee”
shall have the meaning provided in Section 13.6(e).


 


“Type”
shall mean (a) as to any Term Loan, its nature as an ABR Loan or a
Eurodollar Term Loan, and (b) as to any Revolving Credit Loan, its nature
as an ABR Loan or a Eurodollar Revolving Credit Loan.


 


“Unfunded
Current Liability” of any Plan shall mean the amount, if any, by which the
Accumulated Benefit Obligation (as defined under Statement of Financial
Accounting Standards No. 87 (“SFAS 87”)) under the Plan as of the
close of its most recent plan year, determined in accordance with SFAS 87 as in
effect on the date hereof, exceeds the fair market value of the assets allocable
thereto.


 


“Unpaid
Drawing” shall have the meaning provided in Section 3.4(a).


 


“Unrestricted
Subsidiary” shall mean (a) any Subsidiary of the Borrower that is
formed or acquired after the Closing Date (other than a Subsidiary that becomes
or is required to become a Credit Party hereunder), provided that at
such time (or promptly thereafter) the Borrower designates such Subsidiary an
Unrestricted Subsidiary in a written notice to the Administrative Agent, (b) any
Restricted Subsidiary (other than a Restricted Subsidiary that is or becomes a
Credit Party) that is subsequently re-designated as an Unrestricted Subsidiary
by the Borrower in a written notice to the Administrative Agent,


 


29





















 


provided that, in the case of (b), no Restricted
Subsidiary may be re-designated as an Unrestricted Subsidiary if it was
previously designated an Unrestricted Subsidiary, provided  further,
that, in the case of (a) and (b), (x) such designation or re-designation
shall be deemed to be an Investment on the date of designation or such
re-designation in an Unrestricted Subsidiary in an amount equal to the sum of (i) the
net worth of such designated or re-designated Restricted Subsidiary immediately
prior to such designation or re-designation (such net worth to be calculated
without regard to any guarantee provided by such designated or re-designated
Restricted Subsidiary) and (ii) the aggregate principal amount of any
Indebtedness owed by such designated or re-designated Restricted Subsidiary to
the Borrower or any other Restricted Subsidiary immediately prior to
designation or such re-designation, all calculated, except as set forth in the
parenthetical to clause (i), on a consolidated basis in accordance with GAAP,
(y) no Default or Event of Default would result from such designation or
re-designation and (z) immediately after giving effect to such designation or
re-designation, the Borrower and the Restricted Subsidiaries shall be in
compliance, on a pro forma basis, with the covenants set forth in
Sections 10.9 and 10.10 and (c) each Subsidiary of an Unrestricted
Subsidiary; provided, however, that at the time of any written
designation by the Borrower to the Administrative Agent that any Unrestricted
Subsidiary shall no longer constitute an Unrestricted Subsidiary, such
Unrestricted Subsidiary shall cease to be an Unrestricted Subsidiary to the
extent no Default or Event of Default would result from such designation.  On or promptly after the date of its
formation, acquisition, designation or re-designation, as applicable, each
Unrestricted Subsidiary (other than an Unrestricted Subsidiary that is a
Foreign Subsidiary) shall have entered into a tax sharing agreement containing
terms that, in the reasonable judgment of the Administrative Agent, provide for
an appropriate allocation of tax liabilities and benefits.


 


“Voting
Stock” shall mean, with respect to any Person, shares of such Person’s
capital stock having the right to vote for the election of directors of such
Person under ordinary circumstances.


 


The words “hereof,”
“herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section references are to Sections of
this Agreement unless otherwise specified. 
The words “include,” “includes” and “including” shall be deemed to be
followed by the phrase “without limitation”.


 


SECTION 2.                                Amount
and Terms of Credit


 


2.1.                              Commitments.


 


(a)                                  Subject
to and upon the terms and conditions herein set forth, each Lender having a
Term Loan Commitment severally agrees to make a loan or loans (each a “Term Loan”) to the
Borrower in Dollars, which Term Loans shall not exceed for any such Lender the
Term Loan Commitment of such Lender; and


 


Such Term
Loans (i) shall be made on the Closing Date, (ii) may at the option
of the Borrower be incurred and maintained as, and/or converted into, ABR Loans
or Eurodollar Term Loans, provided that all such Term Loans made by each
of the Lenders pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Term Loans of the same Type, (iii) may
be repaid or prepaid in accordance with the provisions hereof, but once repaid
or prepaid, may not be reborrowed, (iv) shall not exceed for any such
Lender the Term Loan Commitment, of such Lender and (v) shall not exceed
in the aggregate the total of all Term Loan Commitments.  On the Term Loan Maturity Date, all Term
Loans shall be repaid in full.


 


(b)                                 (i) 
Subject to and upon the terms and conditions herein set forth, each Lender
having a Revolving Credit Commitment severally agrees to make a loan or loans
denominated in Dollars


 


30





















 


(each a “Revolving Credit Loan” and, collectively, the “Revolving
Credit Loans” to the Borrower which Revolving Credit Loans (A) shall
be made at any time and from time to time on and after the Closing Date and
prior to the Revolving Credit Maturity Date, (B) may, at the option of the
Borrower be incurred and maintained as, and/or converted into, ABR Loans or
Eurodollar Revolving Credit Loans, provided that all Revolving Credit
Loans made by each of the Lenders pursuant to the same Borrowing shall, unless
otherwise specifically provided herein, consist entirely of Revolving Credit
Loans of the same Type, (C) may be repaid and reborrowed in accordance
with the provisions hereof, (D) shall not, for any such Lender at any
time, after giving effect thereto and to the application of the proceeds
thereof, result in such Lender’s Revolving Credit Exposure at such time
exceeding such Lender’s Revolving Credit Commitment at such time and (E) shall
not, after giving effect thereto and to the application of the proceeds
thereof, result at any time in the aggregate amount of the Lenders’ Revolving
Credit Exposures at such time exceeding the Total Revolving Credit Commitment
then in effect.


 


(ii)                                  Each
Lender may at its option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan, provided
that (A) any exercise of such option shall not affect the obligation of
the Borrower to repay such Loan and (B) in exercising such option, such
Lender shall use its reasonable efforts to minimize any increased costs to the
Borrower resulting therefrom (which obligation of the Lender shall not require
it to take, or refrain from taking, actions that it determines would result in
increased costs for which it will not be compensated hereunder or that it
determines would be otherwise disadvantageous to it and in the event of such
request for costs for which compensation is provided under this Agreement, the
provisions of Section 3.5 shall apply. 
On the Revolving Credit Maturity Date, all Revolving Credit Loans shall
be repaid in full.


 


(c)                                  Subject
to and upon the terms and conditions herein set forth, the Swingline Lender in
its individual capacity agrees, at any time and from time to time on and after
the Closing Date and prior to the Swingline Maturity Date, to make a loan or
loans (each a “Swingline Loan” and, collectively, the “Swingline
Loans”) to the Borrower in Dollars, which Swingline Loans (i) shall be
ABR Loans, (ii) shall have the benefit of the provisions of Section 2.1(d),
(iii) shall not exceed at any time outstanding the Swingline Commitment, (iv) shall
not, after giving effect thereto and to the application of the proceeds
thereof, result at any time in the aggregate amount of the Lenders’ Revolving
Credit Exposures at such time exceeding the Total Revolving Credit Commitment
then in effect and (v) may be repaid and reborrowed in accordance with the
provisions hereof.  On the Swingline
Maturity Date, each outstanding Swingline Loan shall be repaid in full.  The Swingline Lender shall not make any
Swingline Loan after receiving a written notice from the Borrower or any Lender
stating that a Default or Event of Default exists and is continuing until such
time as the Swingline Lender shall have received written notice of (i) rescission
of all such notices from the party or parties originally delivering such notice
or (ii) the waiver of such Default or Event of Default in accordance with
the provisions of Section 13.1.


 


(d)                                 On
any Business Day, the Swingline Lender may, in its sole discretion, direct the
Borrower to give notice to the Lenders that all then-outstanding Swingline
Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case
Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory
Borrowing”) shall be made on the immediately succeeding Business Day by all
Lenders pro  rata based on each Lender’s Revolving Credit
Commitment Percentage, and the proceeds thereof shall be applied directly to
the Swingline Lender to repay the Swingline Lender for such outstanding
Swingline Loans.  Each Lender with a
Revolving Credit Commitment hereby irrevocably agrees to make such Revolving
Credit Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing
in the amount and in the manner specified in the preceding sentence and on the
date specified to it in writing by the Swingline Lender notwithstanding (i) that
the amount of the Mandatory Borrowing may not comply with the minimum amount
for each Borrowing specified in Section 2.2, (ii) whether any
conditions specified in Section 7 are then satisfied, (iii) whether a
Default or an Event of Default has occurred and is continuing, (iv) the
date of such Mandatory Borrowing or (v) any reduction in the Total


 


31





















 


Commitment after any such Swingline Loans were made.  In the event that, in the sole judgment of
the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on
the date otherwise required above, or if the Borrower fails to give notice as
required by this clause (d) (including as a result of the commencement of
a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender
with a Revolving Credit Commitment hereby agrees that it shall forthwith
purchase from the Swingline Lender (without recourse or warranty) such
participation of the outstanding Swingline Loans as shall be necessary to cause
such Lenders to share in such Swingline Loans ratably based upon their
respective Revolving Credit Commitment Percentages, provided that all
principal and interest payable on such Swingline Loans shall be for the account
of the Swingline Lender until the date the respective participation is purchased
and, to the extent attributable to the purchased participation, shall be
payable to such Lender purchasing same from and after such date of purchase.


 


2.2.                              Minimum
Amount of Each Borrowing; Maximum Number of Borrowings.  The aggregate principal amount of each
Borrowing of Term Loans or Revolving Credit Loans shall be in a multiple of
$1,000,000 and Swingline Loans shall be in a multiple of $100,000 and, in each
case, shall not be less than the Minimum Borrowing Amount with respect thereto
(except that Mandatory Borrowings shall be made in the amounts required by Section 2.1(d)).  More than one Borrowing may be incurred on any
date, provided that at no time shall there be outstanding more than 13
Borrowings of Eurodollar Loans.


 


2.3.                              Notice of Borrowing.


 


(a)                                  The
Borrower shall give the Administrative Agent at the Administrative Agent’s
Office (i) prior to 12:00 Noon (New York time) at least three Business
Days’ prior written notice (or telephonic notice promptly confirmed in writing)
of the Borrowing of Term Loans if all or any of such Term Loans are to be
initially Eurodollar Loans, and (ii) prior written notice (or telephonic
notice promptly confirmed in writing) prior to 10:00 a.m. (New York time)
on the date of the Borrowing of Term Loans if all such Term Loans are to be ABR
Loans.  Such notice (together with each
notice of a Borrowing of Revolving Credit Loans pursuant to Section 2.3(b) and
each notice of a Borrowing of Swingline Loans pursuant to Section 2.3(d),
a “Notice of Borrowing”) shall be irrevocable and shall specify (i) the
aggregate principal amount of the Term Loans to be made, (ii) the date of
the borrowing (which shall be the Closing Date) and (iii) whether the Term
Loans shall consist of ABR Loans and/or Eurodollar Term Loans and, if the Term
Loans are to include Eurodollar Term Loans, the Interest Period to be initially
applicable thereto.  The Administrative
Agent shall promptly give each Lender written notice (or telephonic notice
promptly confirmed in writing) of the proposed Borrowing of Term Loans, of such
Lender’s proportionate share thereof and of the other matters covered by the
related Notice of Borrowing.


 


(b)                                 Whenever
the Borrower desires to incur Revolving Credit Loans in Dollars hereunder
(other than Mandatory Borrowings or borrowings to repay Unpaid Drawings), it
shall give the Administrative Agent at the Administrative Agent’s Office, (i) prior
to 12:00 Noon (NY Time) at least three Business Days’ prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of
Eurodollar Revolving Credit Loans, and (ii) prior to 12:00 Noon (New
York time) at least one Business Day’s prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing of ABR Loans.  Each such Notice of Borrowing, except as
otherwise expressly provided in Section 2.10, shall be irrevocable and
shall specify (i)  the aggregate principal amount of the Revolving Credit
Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing
(which shall be a Business Day) and (ii) whether the respective Borrowing
shall consist of ABR Loans or Eurodollar Revolving Credit Loans and, if Eurodollar
Revolving Credit Loans, the Interest Period to be initially applicable
thereto.  The Administrative Agent shall
promptly give each Lender written notice (or telephonic notice promptly
confirmed in writing) of each proposed Borrowing of Revolving Credit Loans, of
such Lender’s proportionate share thereof and of the other matters covered by
the related Notice of Borrowing.


 


32





















 


(c)                                  Whenever
the Borrower desires to incur Swingline Loans hereunder, it shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Swingline Loans prior to 2:30 p.m. (New York
time) on the date of such Borrowing. 
Each such notice shall be irrevocable and shall specify (i) the
aggregate principal amount of the Swingline Loans to be made pursuant to such
Borrowing and (ii) the date of Borrowing (which shall be a Business
Day).  The Administrative Agent shall
promptly give the Swingline Lender written notice (or telephonic notice
promptly confirmed in writing) of each proposed Borrowing of Swingline Loans
and of the other matters covered by the related Notice of Borrowing.


 


(d)                                 Mandatory
Borrowings shall be made upon the notice specified in Section 2.1(d), with
the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to
the making of Mandatory Borrowings as set forth in such Section.


 


(e)                                  Borrowings
to reimburse Unpaid Drawings shall be made upon the notice specified in Section 3.4(a).


 


(f)                                    Without
in any way limiting the obligation of the Borrower to confirm in writing any
notice it may give hereunder by telephone, the Administrative Agent may act
prior to receipt of written confirmation without liability upon the basis of
such telephonic notice believed by the Administrative Agent in good faith to be
from an Authorized Officer of the Borrower. 
In each such case, the Borrower hereby waives the right to dispute the
Administrative Agent’s record of the terms of any such telephonic notice.


 


2.4.                              Disbursement of Funds.


 


(a)                                  No
later than 2:00 p.m. (New York time) on the date specified in each Notice
of Borrowing (including Mandatory Borrowings), each Lender will make available
its pro  rata portion, if any, of each Borrowing requested to be
made on such date in the manner provided below, provided that all
Swingline Loans shall be made available in the full amount thereof by the
Swingline Lender no later than 3:00 p.m. (New York time) on the date
requested.


 


(b)                                 Each
Lender shall make available all amounts it is to fund to the Borrower under any
Borrowing in Dollars, and in immediately available funds to the Administrative
Agent at the Administrative Agent’s Office and the Administrative Agent will
(except in the case of Mandatory Borrowings and Borrowings to repay Unpaid
Drawings) make available to the Borrower, by depositing to the Borrower’s
account at the Administrative Agent’s Office the aggregate of the amounts so
made available in Dollars.  Unless the
Administrative Agent shall have been notified by any Lender prior to the date
of any such Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date of Borrowing, and the
Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the Borrower
a corresponding amount.  If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender and the Administrative Agent has made available same to the
Borrower, the Administrative Agent shall be entitled to recover such
corresponding amount from such Lender. 
If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent’s demand therefor the Administrative Agent shall promptly
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent.  The
Administrative Agent shall also be entitled to recover from such Lender or the
Borrower interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative Agent
to the Borrower to the date such corresponding amount is recovered by the
Administrative Agent at a rate per annum equal to (i) if paid by such
Lender, the Federal


 


33





















 


Funds Effective Rate or (ii) if paid by the Borrower, the
then-applicable rate of interest or fees, calculated in accordance with Section 2.8,
for the respective Loans.


 


(c)                                  Nothing
in this Section 2.4 shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that
the Borrower may have against any Lender as a result of any default by such
Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its commitments
hereunder).


 


2.5.                              Repayment of Loans;
Evidence of Debt.


 


(a)                                  The
Borrower shall repay to the Administrative Agent, for the benefit of the Lenders,
(i) on the Term Loan Maturity Date, the then unpaid Term Loans, in
Dollars.  The Borrower shall repay to the
Administrative Agent in Dollars, for the benefit of the applicable Lenders, on
the Revolving Credit Maturity Date, the then unpaid Revolving Credit
Loans.  The Borrower shall repay to the
Administrative Agent in Dollars, for the account of the Swingline Lender, on
the Swingline Maturity Date, the then unpaid Swingline Loans.


 


(b)                                 The
Borrower shall repay to the Administrative Agent, in Dollars, for the benefit
of the Lenders of Term Loans, on each date set forth below (each a “Repayment
Date”), the principal amount of the Term Loans equal to (x) the outstanding
principal amount of Term Loans immediately after closing on the Closing Date
multiplied by (y) the percentage set forth below opposite such Repayment Date
(each a “Repayment Amount”):


 


	
  Period

  	
   

  	
  Term Loan

  Repayment Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 31, 2006

  	
   

  	
  0.25%

  	
   

  
	
  June 30, 2006

  	
   

  	
  0.25%

  	
   

  
	
  September 30, 2006

  	
   

  	
  0.25%

  	
   

  
	
  December 31, 2006

  	
   

  	
  0.25%

  	
   

  
	
  March 31, 2007

  	
   

  	
  0.25%

  	
   

  
	
  June 30, 2007

  	
   

  	
  0.25%

  	
   

  
	
  September 30, 2007

  	
   

  	
  0.25%

  	
   

  
	
  December 31, 2007

  	
   

  	
  0.25%

  	
   

  
	
  March 31, 2008

  	
   

  	
  0.25%

  	
   

  
	
  June 30, 2008

  	
   

  	
  0.25%

  	
   

  
	
  September 30, 2008

  	
   

  	
  0.25%

  	
   

  
	
  December 31, 2008

  	
   

  	
  0.25%

  	
   

  
	
  March 31, 2009

  	
   

  	
  0.25%

  	
   

  
	
  June 30, 2009

  	
   

  	
  0.25%

  	
   

  
	
  September 30, 2009

  	
   

  	
  0.25%

  	
   

  
	
  December 31, 2009

  	
   

  	
  0.25%

  	
   

  
	
  March 31, 2010

  	
   

  	
  0.25%

  	
   

  
	
  June 30, 2010

  	
   

  	
  0.25%

  	
   

  
	
  September 30, 2010

  	
   

  	
  0.25%

  	
   

  
	
  December 31, 2010

  	
   

  	
  0.25%

  	
   

  
	
  March 31, 2011

  	
   

  	
  0.25%

  	
   

  
	
  June 30, 2011

  	
   

  	
  0.25%

  	
   

  
	
  September 30, 2011

  	
   

  	
  0.25%

  	
   

  
	
  December 31, 2011

  	
   

  	
  0.25%

  	
   

  
	
  March 31, 2012

  	
   

  	
  0.25%

  	
   

  
	
  June 30, 2012

  	
   

  	
  0.25%

  	
   

  
	
  September 30, 2012

  	
   

  	
  0.25%

  	
   

  
	
  Term Loan Maturity Date

  	
   

  	
  93.25%

  	
   

  



 


34





















 


; provided,
in the event any New Term Loans are made, such New Term Loans shall be repaid
on each Repayment Date occurring on or after the applicable Increased Amount
Date in an amount equal to (i) the aggregate principal amount of New Term
Loans of the applicable Series of New Term Loans, times (ii) the
ratio (expressed as a percentage) of (y) the amount of all other Term Loans
being repaid on such Repayment Date and (z) the total aggregate principal amount
of all other Term Loans outstanding on such Increased Amount Date.


 


(c)                                  Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to the appropriate lending
office of such Lender resulting from each Loan made by such lending office of
such Lender from time to time, including the amounts of principal and interest
payable and paid to such lending office of such Lender from time to time under
this Agreement.


 


(d)                                 The
Administrative Agent shall maintain the Register pursuant to Section 13.6(b),
and a subaccount for each Lender, in which Register and subaccounts (taken
together) shall be recorded (i) the amount and currency of each Loan made
hereunder, whether such Loan is a Term Loan, a Revolving Credit Loan or a
Swingline Loan, the Type of each Loan made and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender or the Swingline Lender
hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender’s share thereof.


 


(e)                                  The
entries made in the Register and accounts and subaccounts maintained pursuant
to paragraphs (c) and (d) of this Section 2.5 shall, to the
extent permitted by applicable law, be prima facie evidence of the existence
and amounts of the obligations of the Borrower therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to
maintain such account, such Register or such subaccount, as applicable, or any
error therein, shall not in any manner affect the obligation of the Borrower to
repay (with applicable interest) the Loans made to the Borrower by such Lender
in accordance with the terms of this Agreement.


 


2.6.                              Conversions and
Continuations.


 


(a)                                  The
Borrower shall have the option on any Business Day to convert all or a portion
equal to at least the Minimum Borrowing Amount of the outstanding principal
amount of Term Loans or Revolving Credit Loans made to the Borrower of one Type
into a Borrowing or Borrowings of another Type and the Borrower shall have the
option on any Business Day to continue the outstanding principal amount of any
Eurodollar Term Loans or Eurodollar Revolving Credit Loans as Eurodollar Term
Loans or Eurodollar Revolving Credit Loans, as the case may be, for an
additional Interest Period, provided that (i) no partial conversion
of Eurodollar Term Loans or Eurodollar Revolving Credit Loans shall reduce the
outstanding principal amount of Eurodollar Term Loans or Eurodollar Revolving
Credit Loans made pursuant to a single Borrowing to less than the Minimum Borrowing
Amount, (ii) Eurodollar Loans may not be continued or converted as
Eurodollar Loans for an additional Interest Period and ABR Loans may not be
converted into Eurodollar Loans, in each case if a Default or Event of Default
is in existence on the date of the proposed continuation or conversion and the
Administrative Agent has or the Required Lenders have determined in its or
their sole discretion not to permit such continuation, and (iii) Borrowings
resulting from conversions pursuant to this Section 2.6 shall be limited
in number as provided in Section 2.2. 
Each such conversion or continuation shall be effected by the by giving
the Administrative


 


35





















 


Agent at the Administrative Agent’s Office prior to 12:00 Noon (New
York time) at least three Business Days’ (or one Business Day’s notice in the
case of a conversion into ABR Loans) prior written notice (or telephonic notice
promptly confirmed in writing) (each a “Notice of Conversion or Continuation”)
specifying the Term Loans or Revolving Credit Loans to be so converted or
continued, the Type of Term Loans or Revolving Credit Loans to be converted or
continued into and, if such Term Loans or Revolving Credit Loans are to be
converted into or continued as Eurodollar Loans, the Interest Period to be
initially applicable thereto.  The
Administrative Agent shall give each Lender notice as promptly as practicable
of any such proposed conversion or continuation affecting any of its Term Loans
or Revolving Credit Loans.


 


(b)                                 If
any Default or Event of Default is in existence at the time of any proposed
continuation of any Eurodollar Loans and the Administrative Agent has or the
Required Lenders have determined in its or their sole discretion not to permit
such continuation, such Eurodollar Loans shall be automatically converted on
the last day of the current Interest Period into ABR Loans.  If upon the expiration of any Interest Period
in respect of Eurodollar Loans, the Borrower has failed to elect a new Interest
Period to be applicable thereto as provided in paragraph (a) above, the
Borrower shall be deemed to have elected to continue such Borrowing of
Eurodollar Loans into a Borrowing of ABR Loans effective as of the expiration
date of such current Interest Period.


 


2.7.                              Pro
Rata Borrowings.  Each Borrowing of
Term Loans under this Agreement shall be granted by the Lenders pro rata on the
basis of their then-applicable Term Loan Commitments.  Each Borrowing of Revolving Credit Loans
under this Agreement shall be granted by the Lenders pro rata on the basis of
their then-applicable Revolving Credit Commitments.  Each Borrowing of New Term Loans under this
Agreement shall be granted by the Lenders pro rata on the basis of their
then-applicable New Term Loan Commitments. 
It is understood that no Lender shall be responsible for any default by
any other Lender in its obligation to make Loans hereunder and that each Lender
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fulfill its commitments hereunder.


 


2.8.                              Interest.


 


(a)                                  The
unpaid principal amount of each ABR Loan shall bear interest from the date of
the Borrowing thereof until maturity (whether by acceleration or otherwise) at
a rate per annum that shall at all times be the Applicable Rate plus the ABR in
effect from time to time.


 


(b)                                 The
unpaid principal amount of each Eurodollar Loan shall bear interest from the
date of the Borrowing thereof until maturity thereof (whether by acceleration
or otherwise) at a rate per annum that shall at all times be the Applicable
Rate in effect from time to time plus the relevant Eurodollar Rate.


 


(c)                                  If
all or a portion of (i) the principal amount of any Loan or (ii) any
interest payable thereon shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum that is (x) in the case of overdue principal, the
rate that would otherwise be applicable thereto plus 2% or (y) in the case
of any overdue interest, to the extent permitted by applicable law, the rate
described in Section 2.8(a) plus 2% from and including the date of
such non-payment to but excluding the date on which such amount is paid in full
(after as well as before judgment).


 


(d)                                 Interest
on each Loan shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof and shall be payable (i) in
respect of each ABR Loan, quarterly in arrears on the last day of each March,
June, September and December, (ii) in respect of each


 


36





















 


Eurodollar Loan, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period in excess of three months, on
each date occurring at three-month intervals after the first day of such
Interest Period, (iii) in respect of each Loan (except, other than in the
case of prepayments, any ABR Loan), on any prepayment (on the amount prepaid),
at maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.


 


(e)                                  All
computations of interest hereunder shall be made in accordance with Section 5.5.


 


(f)                                    The
Administrative Agent, upon determining the interest rate for any Borrowing of
Eurodollar Loans, shall promptly notify the Borrower and the relevant Lenders
thereof.  Each such determination shall,
absent clearly demonstrable error, be final and conclusive and binding on all
parties hereto.


 


2.9.                              Interest
Periods.


 


(a)                                  At
the time the Borrower gives a Notice of Borrowing or Notice of Conversion or
Continuation in respect of the making of, or conversion into or continuation
as, a Borrowing of Eurodollar Loans (in the case of the initial Interest Period
applicable thereto) or prior to 12:00 Noon (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower shall have the right to elect by
giving the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) the Interest Period applicable to such Borrowing, which
Interest Period shall, at the option of the Borrower be a one, two, three, six
or (if available to all relevant Lenders making such loans as determined by
such Lenders in good faith based on prevailing market conditions) a nine or
twelve month period, provided that the initial Interest Period may be
for a period less than one month if agreed upon by the Borrower and the Joint
Lead Arrangers.  Notwithstanding anything
to the contrary contained above:


 


(i)                                     the
initial Interest Period for any Borrowing of Eurodollar Loans shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of ABR Loans and each Interest Period occurring thereafter in respect
of such Borrowing shall commence on the day on which the next preceding
Interest Period expires;


 


(ii)                                  if
any Interest Period relating to a Borrowing of Eurodollar Credit Loans begins
on the last Business Day of a calendar month or begins on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of the
calendar month at the end of such Interest Period;


 


(iii)                               if
any 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 in respect of a Eurodollar Loan 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; and


 


(iv)                              the
Borrower shall not be entitled to elect any Interest Period in respect of any
Eurodollar Loan if such Interest Period would extend beyond the applicable
Maturity Date of such Loan.


 


37





















 


2.10.                        Increased Costs, Illegality,
etc.


 


(a)                                  In
the event that (x) in the case of clause (i) below, the
Administrative Agent or (y) in the case of clauses (ii) and (iii) below,
any Lender shall have reasonably determined (which determination shall, absent
clearly demonstrable error, be final and conclusive and binding upon all
parties hereto):


 


(i)                                     on
any date for determining the Eurodollar Rate for any Interest Period that
(x) deposits in the principal amounts of the Loans comprising such
Eurodollar Borrowing are not generally available in the relevant market or (y)
by reason of any changes arising on or after the Closing Date affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or


 


(ii)                                  at
any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any Eurodollar Loans
(other than any such increase or reduction attributable to taxes) because of
(x) any change since the date hereof in any applicable law, governmental rule,
regulation, guideline or order (or in the interpretation or administration
thereof and including the introduction of any new law or governmental rule, regulation,
guideline or order), such as, for example, without limitation, a change in
official reserve requirements, and/or (y) other circumstances affecting the
interbank Eurodollar market or the position of such Lender in such market; or


 


(iii)                               at
any time, that the making or continuance of any Eurodollar Loan has become
unlawful by compliance by such Lender in good faith with any law, governmental
rule, regulation, guideline or order (or would conflict with any such
governmental rule, regulation, guideline or order not having the force of law
even though the failure to comply therewith would not be unlawful), or has
become impracticable as a result of a contingency occurring after the date
hereof that materially and adversely affects the interbank Eurodollar market;


 


then, and in
any such event, such Lender (or the Administrative Agent, in the case of
clause (i) above) shall within a reasonable time thereafter give
notice (if by telephone, confirmed in writing) to the Borrower and to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders).  Thereafter (x) in the case of
clause (i) above, Eurodollar Term Loans and Eurodollar Revolving
Credit Loans shall no longer be available until such time as the Administrative
Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such notice by the Administrative Agent no longer exist (which notice the
Administrative Agent agrees to give at such time when such circumstances no
longer exist), and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Term Loans or Eurodollar Revolving Credit
Loans that have not yet been incurred shall be deemed rescinded by the Borrower
(y) in the case of clause (ii) above, the Borrower shall pay to
such Lender, promptly after receipt of written demand therefor such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its reasonable discretion
shall determine) as shall be required to compensate such Lender for such
increased costs or reductions in amounts receivable hereunder (it being agreed
that a written notice as to the additional amounts owed to such Lender, showing
in reasonable detail the basis for the calculation thereof, submitted to the
Borrower by such Lender shall, absent clearly demonstrable error, be final and
conclusive and binding upon all parties hereto) and (z) in the case of
clause (iii) above, the Borrower shall take one of the actions
specified in Section 2.10(b) as promptly as possible and, in any
event, within the time period required by law.


 


38





















 


(b)                                 At
any time that any Eurodollar Loan is affected by the circumstances described in
Section 2.10(a)(ii) or (iii), the Borrower may (and in the case of a
Eurodollar Loan affected pursuant to Section 2.10(a)(iii) shall)
either (x) if the affected Eurodollar Loan is then being made pursuant to a
Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that the
Borrower was notified by a Lender pursuant to Section 2.10(a)(ii) or (iii) or
(y) if the affected Eurodollar Loan is then outstanding, upon at least
three Business Days’ notice to the Administrative Agent, require the affected
Lender to convert each such Eurodollar Revolving Credit Loan and Eurodollar
Term Loan into an ABR Loan provided that if more than one Lender is
affected at any time, then all affected Lenders must be treated in the same
manner pursuant to this Section 2.10(b).


 


(c)                                  If,
after the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority, the
National Association of Insurance Commissioners, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by a Lender or its parent with any request or directive made or adopted after
the date hereof regarding capital adequacy (whether or not having the force of
law) of any such authority, association, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender’s or its
parent’s or its Related Affiliate’s capital or assets as a consequence of such
Lender’s commitments or obligations hereunder to a level below that which such
Lender or its parent or its Related Affiliate could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Lender’s or its parent’s policies with respect to capital adequacy), then from
time to time, promptly after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or its parent for such
reduction, it being understood and agreed, however, that a Lender shall not be
entitled to such compensation as a result of such Lender’s compliance with, or
pursuant to any request or directive to comply with, any such law, rule or
regulation as in effect on the date hereof. 
Each Lender, upon determining in good faith that any additional amounts
will be payable pursuant to this Section 2.10(c), will give prompt written
notice thereof to the Borrower which notice shall set forth in reasonable
detail the basis of the calculation of such additional amounts, although the
failure to give any such notice shall not, subject to Section 2.13,
release or diminish any of the Borrower’s obligations to pay additional amounts
pursuant to this Section 2.10(c) upon receipt of such notice.


 


2.11.                        Compensation.  If (a) any payment of principal of any
Eurodollar Loan is made by the Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Eurodollar Loan as a
result of a payment or conversion pursuant to Section 2.5, 2.6, 2.10, 5.1,
5.2 or 13.7, as a result of acceleration of the maturity of the Loans pursuant
to Section 11 or for any other reason, (b) any Borrowing of
Eurodollar Loans is not made as a result of a withdrawn Notice of Borrowing, (c) any
ABR Loan is not converted into a Eurodollar Loan as a result of a withdrawn
Notice of Conversion or Continuation, (d) any Eurodollar Loan is not continued
as a Eurodollar Loan as a result of a withdrawn Notice of Conversion or
Continuation or (e) any prepayment of principal of any Eurodollar Loan is
not made as a result of a withdrawn notice of prepayment pursuant to Section 5.1
or 5.2, the Borrower shall, after receipt of a written request by such Lender
(which request shall set forth in reasonable detail the basis for requesting
such amount), pay to the Administrative Agent for the account of such Lender
any amounts required to compensate such Lender for any additional losses, costs
or expenses that such Lender may reasonably incur as a result of such payment,
failure to convert, failure to continue or failure to prepay, including any
loss, cost or expense (excluding loss of anticipated profits) actually incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Eurodollar Loan.


 


39





















 


2.12.                        Change
of Lending Office.  Each Lender
agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(b), 3.5 or 5.4 with respect to such Lender, it will, if
requested by the Borrower use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any
Loans affected by such event, provided that such designation is made on
such terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section.  Nothing in this Section 2.12 shall affect
or postpone any of the obligations of the Borrower or the right of any Lender
provided in Section 2.10, 3.5 or 5.4.


 


2.13.                        Notice
of Certain Costs.  Notwithstanding
anything in this Agreement to the contrary, to the extent any notice required
by Section 2.10, 2.11, 3.5 or 5.4 is given by any Lender more than
180 days after such Lender has knowledge (or should have had knowledge) of
the occurrence of the event giving rise to the additional cost, reduction in
amounts, loss, tax or other additional amounts described in such Sections, such
Lender shall not be entitled to compensation under Section 2.10, 2.11, 3.5
or 5.4, as the case may be, for any such amounts incurred or accruing prior to
the giving of such notice to the Borrower.


 


2.14.                        Incremental
Facilities.  Borrower may by written
notice to Administrative Agent elect to request the establishment of one or
more new term loan commitments (the “New Term Loan Commitments”), by an
amount not in excess of $100,000,000 in the aggregate and not less than $25,000,000
individually (or such lesser amount which shall be approved by Administrative
Agent or such lesser amount that shall constitute the difference between
$100,000,000 and all such and New Term Loan Commitments obtained prior to such
date), and integral multiples of $5,000,000 in excess of that amount.  Each such notice shall specify (A) the
date (each, an “Increased Amount Date”) on which Borrower proposes that
the New Term Loan Commitments shall be effective, which shall be a date not
less than 10 Business Days after the date on which such notice is delivered to
Administrative Agent and (B) the identity of each Lender or other Person
to whom Borrower proposes any portion of such New Term Loan Commitments be
allocated and the amounts of such allocations; provided that Borrower
shall first approach the Lenders to provide all of the New Term Loan
Commitments prior to approaching any other Person pursuant to Section 13.6(b);
provided  further that any Lender approached to provide all or a
portion of the New Term Loan Commitments may elect or decline, in its sole
discretion, to provide a New Term Loan Commitment.  Such New Term Loan Commitments shall become
effective, as of such Increased Amount Date; provided that (1) no Default
or Event of Default shall exist on such Increased Amount Date before or after
giving effect to such New Term Loan Commitments; (2) both before and after
giving effect to the making of any Series of New Term Loans, each of the
conditions set forth in Section 7 shall be satisfied; (3) Borrower
and its Subsidiaries shall be in pro forma compliance with each of the
covenants set forth in Sections 10.9 and 10.10 as of the last day of the
most recently ended fiscal quarter after giving effect to such New Term Loan
Commitments and such other adjustment events in connection with any concurrent
Permitted Acquisition or disposition; (4) the New Term Loan Commitments
shall be effected pursuant to one or more Joinder Agreements executed and
delivered by Borrower and Administrative Agent, and each of which shall be, to
the extent such form varies from Exhibit K, in form and substance
reasonably satisfactory to the Administrative Agent and recorded in the
Register and shall be subject to the requirements set forth in Section 5.4(c);
(5) Borrower shall make any payments required pursuant to Section 2.11
in connection with the New Term Loan Commitments; and (6) Borrower shall
deliver or cause to be delivered any legal opinions or other documents
reasonably requested by Administrative Agent in connection with any such
transaction.  Any New Term Loans made on
an Increased Amount Date shall be designated, a separate series (a “Series”)
of New Term Loans for all purposes of this Agreement.


 


On any
Increased Amount Date on which any New Term Loan Commitments of any Series are
effective, subject to the satisfaction of the foregoing terms and conditions, (i) each
Lender with a


 


40





















 


New Term Loan
(each, a “New Term Loan Lender”) of any Series shall make a Loan to
the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan
Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall
become a Lender hereunder with respect to the New Term Loan Commitment of such Series and
the New Term Loans of such Series made pursuant thereto.


 


Administrative
Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each
Increased Amount Date and in respect thereof the Series of New Term Loan
Commitments and the New Term Loan Lenders of such Series.


 


The terms and
provisions of the New Term Loans and New Term Loan Commitments of any Series shall
be, except as otherwise set forth herein or in the Joinder Agreement, identical
to the Term Loans.  In any event (i) the
weighted average life to maturity of all New Term Loans of any Series shall
be no shorter than the weighted average life to maturity of the Terms Loans, (ii) the
applicable New Term Loan Maturity Date of each Series shall be no shorter
than the final maturity of the Term Loans, (iii) the rate of interest
applicable to the New Term Loans of each Series shall be determined by
Borrower and the applicable new Lenders and shall be set forth in each
applicable Joinder Agreement.  Each
Joinder Agreement may, without the consent of any other Lenders, effect such
technical amendments to this Agreement and the other Credit Documents as may be
necessary or appropriate, in the opinion of the Administrative Agent, to effect
the provision of this Section 2.14.


 


SECTION 3.                                Letters
of Credit


 


3.1.                              Letters
of Credit.


 


(a)                                  Subject
to and upon the terms and conditions herein set forth, at any time and from
time to time after the Closing Date and prior to the L/C Maturity Date, the
Borrower, may request that the Letter of Credit Issuer issue for the account of
the Borrower a standby letter of credit or letters of credit in Dollars (a “Letter
of Credit”) in such form as may be approved by the Letter of Credit Issuer
in its reasonable discretion.


 


(b)                                 Notwithstanding
the foregoing, (i) no Letter of Credit shall be issued the Stated Amount
of which, when added to the Letter of Credit Outstanding at such time, would
exceed the Letter of Credit Commitment then in effect; (ii) no Letter of
Credit shall be issued the Stated Amount of which would cause the aggregate amount
of the Lender’s Revolving Credit Exposures at such time to exceed the Revolving
Credit Commitment then in effect; (iii) each Letter of Credit shall have
an expiration date occurring no later than one year after the date of issuance
thereof; provided that any Letter of Credit may provide for the
automatic renewal thereof pursuant to clause (e) below; (iv) each
Letter of Credit shall be denominated in Dollars; (v) no Letter of Credit
shall be issued if it would be illegal under any applicable law for the beneficiary
of the Letter of Credit to have a Letter of Credit issued in its favor; and (vi) no
Letter of Credit shall be issued by the Letter of Credit Issuer after it has
received a written notice from the Borrower or any Lender stating that a
Default or Event of Default has occurred and is continuing until such time as
the Letter of Credit Issuer shall have received a written notice of
(x) rescission of such notice from the party or parties originally
delivering such notice or (y) the waiver of such Default or Event of
Default in accordance with the provisions of Section 13.1.  Notwithstanding anything herein to the
contrary, the issuance of Letters of Credit for the account of the Borrower
shall be deemed a utilization of the Revolving Credit Commitments allocated to
the Borrower.


 


(c)                                  Upon
at least one Business Day’s prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent and the Letter of Credit
Issuer (which notice the Administrative Agent shall promptly transmit to each
of the applicable Lenders), the Borrower shall have the right, on any day,
permanently to terminate or reduce the Letter of Credit Commitment in whole


 


41





















 


or in part, provided that, after giving effect to such
termination or reduction, the Letter of Credit Outstanding shall not exceed the
Letter of Credit Commitment.


 


(d)                                 The
parties hereto agree that the Existing Letters of Credit shall be deemed
Letters of Credit for all purposes under this Agreement, without any further
action by the Borrower.


 


(e)                                  If
the Borrower so requests in any applicable Letter of Credit application, the
relevant Letter of Credit Issuer shall agree to issue a Letter of Credit that
has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”);
provided that any such Auto-Renewal Letter of Credit must permit the relevant
Letter of Credit Issuer to prevent any such renewal at least once in each
twelve month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a day
(the “Nonrenewal Notice Date”) in each such twelve month period to be
agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the relevant
Letter of Credit Issuer, the Borrower shall not be required to make a specific
request to the relevant Letter of Credit Issuer for any such renewal.  Once an Auto-Renewal Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the relevant Letter of Credit Issuer to permit the renewal of such
Letter of Credit at any time to an expiry date not later than the L/C Maturity
Date; provided that the relevant Letter of Credit Issuer shall not permit any
such renewal if (A) the relevant Letter of Credit Issuer has determined
that it would have no obligation at such time to issue such Letter of Credit in
its renewed form under the terms hereof (by reason of the provisions of Section 3.1(b) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five (5) Business Days before the
Nonrenewal Notice Date from the Administrative Agent, any Lender with a
Revolving Credit Exposure or the Borrower that one or more of the applicable
conditions specified in Section 7 is not then satisfied.


 


3.2.                              Letter of Credit
Requests.


 


(a)                                  Whenever
the Borrower desires that a Letter of Credit be issued for its account, it
shall give the Administrative Agent and the Letter of Credit Issuer at least
five (or such lesser number as may be agreed upon by the Administrative Agent
and the Letter of Credit Issuer) Business Days’ written notice thereof.  Each notice shall be executed by the Borrower
and shall be in the form of Exhibit F (each a “Letter of Credit
Request”).  The Administrative Agent
shall promptly transmit copies of each Letter of Credit Request to each Lender.


 


(b)                                 The
making of each Letter of Credit Request shall be deemed to be a representation
and warranty by the Borrower that the Letter of Credit may be issued in
accordance with, and will not violate the requirements of, Section 3.1(b).


 


3.3.                              Letter of Credit
Participations.


 


(a)                                  Immediately
upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the
Letter of Credit Issuer shall be deemed to have sold and transferred to each
other Lender that has a Revolving Credit Commitment (each such other Lender, in
its capacity under this Section 3.3, an “L/C Participant”), and
each such L/C Participant shall be deemed irrevocably and unconditionally to
have purchased and received from the Letter of Credit Issuer, without recourse
or warranty, an undivided interest and participation (each an “L/C
Participation”), to the extent of such L/C Participant’s Revolving Credit
Commitment Percentage in such Letter of Credit, each substitute letter of
credit, each drawing made thereunder and the obligations of the Borrower under
this Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto (although Letter of Credit Fees will be paid directly to the
Administrative Agent for the ratable account of the L/C Participants as
provided in Section 4.1(b) and the L/C Participants shall have no
right to receive any portion of any Fronting Fees).


 


42





















 


(b)                                 In
determining whether to pay under any Letter of Credit, the Letter of Credit
Issuer shall have no obligation relative to the L/C Participants other than to
confirm that any documents required to be delivered under such Letter of Credit
have been delivered and that they appear to comply on their face with the
requirements of such Letter of Credit. 
Any action taken or omitted to be taken by the Letter of Credit Issuer
under or in connection with any Letter of Credit issued by it, if taken or
omitted in the absence of gross negligence or willful misconduct, shall not
create for the Letter of Credit Issuer any resulting liability.


 


(c)                                  In
the event that the Letter of Credit Issuer makes any payment under any Letter
of Credit issued by it and the Borrower shall not have repaid such amount in
full to the Letter of Credit Issuer pursuant to Section 3.4(a), the Letter
of Credit Issuer shall promptly notify the Administrative Agent and each
applicable L/C Participant of such failure, and each such L/C Participant shall
promptly and unconditionally pay to the Administrative Agent for the account of
the Letter of Credit Issuer, the amount of such L/C Participant’s Revolving
Credit Commitment Percentage of such unreimbursed payment in Dollars and in
immediately available funds; provided, however, that no L/C
Participant shall be obligated to pay to the Administrative Agent for the
account of the respective Letter of Credit Issuer its Revolving Credit
Commitment Percentage of such unreimbursed amount arising from any wrongful
payment made by the Letter of Credit Issuer under a Letter of Credit as a
result of acts or omissions constituting willful misconduct or gross negligence
on the part of the Letter of Credit Issuer. 
If the Administrative Agent so notifies, prior to 11:00 a.m. (New
York time) on any Business Day, any L/C Participant required to fund a payment
under a Letter of Credit, such L/C Participant shall make available to the
Administrative Agent for the account of the Letter of Credit Issuer such L/C
Participant’s Revolving Credit Commitment Percentage of the amount of such
payment on such Business Day in immediately available funds.  If and to the extent such L/C Participant
shall not have so made its Revolving Credit Commitment Percentage of the amount
of such payment available to the Administrative Agent for the account of the
Letter of Credit Issuer, such L/C Participant agrees to pay to the
Administrative Agent for the account of the Letter of Credit Issuer, forthwith
on demand, such amount, together with interest thereon for each day from such
date until the date such amount is paid to the Administrative Agent for the
account of the Letter of Credit Issuer at the Federal Funds Effective
Rate.  The failure of any L/C Participant
to make available to the Administrative Agent for the account of the Letter of
Credit Issuer its Revolving Credit Commitment Percentage of any payment under
any Letter of Credit shall not relieve any other L/C Participant of its
obligation hereunder to make available to the Administrative Agent for the
account of the Letter of Credit Issuer its Revolving Credit Commitment
Percentage of any payment under such Letter of Credit on the date required, as
specified above, but no L/C Participant shall be responsible for the failure of
any other L/C Participant to make available to the Administrative Agent such
other L/C Participant’s Revolving Credit Commitment Percentage of any such
payment.


 


(d)                                 Whenever
the Letter of Credit Issuer receives a payment in respect of an unpaid
reimbursement obligation as to which the Administrative Agent has received for
the account of the Letter of Credit Issuer any payments from the L/C Participants
pursuant to paragraph (c) above, the Letter of Credit Issuer shall pay to
the Administrative Agent and the Administrative Agent shall promptly pay to
each L/C Participant that has paid its Revolving Credit Commitment Percentage
of such reimbursement obligation, in Dollars and in immediately available
funds, an amount equal to such L/C Participant’s share (based upon the
proportionate aggregate amount originally funded by such L/C Participant to the
aggregate amount funded by all L/C Participants) of the principal amount of
such reimbursement obligation and interest thereon accruing after the purchase
of the respective L/C Participations.


 


(e)                                  The
obligations of the L/C Participants to make payments to the Administrative
Agent for the account of a Letter of Credit Issuer with respect to Letters of
Credit shall be irrevocable and not subject to counterclaim, set-off or other
defense or any other qualification or exception whatsoever


 


43





















 


and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including under any of the following
circumstances:


 


(i)                                     any
lack of validity or enforceability of this Agreement or any of the other Credit
Documents;


 


(ii)                                  the
existence of any claim, set-off, defense or other right that the Borrower may
have at any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such transferee
may be acting), the Administrative Agent, the Letter of Credit Issuer, any
Lender or other Person, whether in connection with this Agreement, any Letter
of Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower and the beneficiary
named in any such Letter of Credit);


 


(iii)                               any
draft, certificate or any 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)                              the
surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or


 


(v)                                 the
occurrence of any Default or Event of Default;


 


provided,
however, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its
Revolving Credit Commitment Percentage of any unreimbursed amount arising from
any wrongful payment made by the Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or
gross negligence on the part of the Letter of Credit Issuer.


 


3.4.                              Agreement to Repay
Letter of Credit Drawings.


 


(a)                                  The
Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making
payment in Dollars to the Administrative Agent in immediately available funds
for any payment or disbursement made by the Letter of Credit Issuer under any
Letter of Credit (each such amount so paid until reimbursed, an “Unpaid
Drawing”) immediately after, and in any event on the date of, such payment,
with interest on the amount so paid or disbursed by the Letter of Credit
Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on
the date of such payment or disbursement, from and including the date paid or
disbursed to but excluding the date the Letter of Credit Issuer is reimbursed
therefor at a rate per annum that shall at all times be the Applicable Rate
plus the ABR as in effect from time to time, provided that,
notwithstanding anything contained in this Agreement to the contrary, (i) unless
the Borrower shall have notified the Administrative Agent and the relevant
Letter of Credit Issuer prior to 10:00 a.m. (New York time) on the date of
such drawing that the Borrower intends to reimburse the relevant Letter of
Credit Issuer for the amount of such drawing with funds other than the proceeds
of Loans, the Borrower shall give a Notice of Borrowing requesting that the
Lenders with Revolving Credit Commitments make US Revolving Credit Loans (which
shall be ABR Loans) on the date on which such drawing is honored in an amount
equal to the amount of such drawing and (ii) the Administrative Agent
shall promptly notify each relevant L/C Participant of such drawing and the
amount of its Revolving Credit Loan to be made in respect thereof, and each L/C
Participant shall be irrevocably obligated to make a Revolving Credit Loan to
the Borrower in the manner deemed to have been requested in the amount of its
Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by
12:00 noon (New York time) on such Business Day by making the amount of such
Revolving Credit Loan available to the Administrative


 


44





















 


Agent.  Such Revolving Credit
Loans shall be made without regard to the Minimum Borrowing Amount.  The Administrative Agent shall use the
proceeds of such Revolving Credit Loans solely for purpose of reimbursing the
Letter of Credit Issuer for the related Unpaid Drawing.


 


(b)                                 The
obligations of the Borrower under this Section 3.4 to reimburse the Letter
of Credit Issuer with respect to Unpaid Drawings (including, in each case, interest
thereon) shall be absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment that the
Borrower or any other Person may have or have had against the Letter of Credit
Issuer, the Administrative Agent or any Lender (including in its capacity as an
L/C Participant), including any defense based upon the failure of any drawing
under a Letter of Credit (each a “Drawing”) to conform to the terms of
the Letter of Credit or any non-application or misapplication by the
beneficiary of the proceeds of such Drawing, provided that the Borrower
shall not be obligated to reimburse the Letter of Credit Issuer for any
wrongful payment made by the Letter of Credit Issuer under the Letter of Credit
issued by it as a result of acts or omissions constituting willful misconduct
or gross negligence on the part of the Letter of Credit Issuer.


 


3.5.                              Increased
Costs.  If after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or actual compliance by the Letter of
Credit Issuer or any L/C Participant with any request or directive made or
adopted after the date hereof (whether or not having the force of law), by any
such authority, central bank or comparable agency shall either (a) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against letters of credit issued by the Letter of Credit Issuer, or
any L/C Participant’s L/C Participation therein, or (b) impose on the
Letter of Credit Issuer or any L/C Participant any other conditions affecting
its obligations under this Agreement in respect of Letters of Credit or L/C
Participations therein or any Letter of Credit or such L/C Participant’s L/C
Participation therein, and the result of any of the foregoing is to increase
the cost to the Letter of Credit Issuer or such L/C Participant of issuing,
maintaining or participating in any Letter of Credit, or to reduce the amount
of any sum received or receivable by the Letter of Credit Issuer or such L/C
Participant hereunder (other than any such increase or reduction attributable
to taxes) in respect of Letters of Credit or L/C Participations therein, then,
promptly after receipt of written demand to the Borrower by the Letter of
Credit Issuer or such L/C Participant, as the case may be, (a copy of which
notice shall be sent by the Letter of Credit Issuer or such L/C Participant to
the Administrative Agent), the Borrower as applicable, shall pay to the Letter
of Credit Issuer or such L/C Participant such additional amount or amounts as
will compensate the Letter of Credit Issuer or such L/C Participant for such
increased cost or reduction, it being understood and agreed, however, that the
Letter of Credit Issuer or a L/C Participant shall not be entitled to such
compensation as a result of such Person’s compliance with, or pursuant to any
request or directive to comply with, any such law, rule or regulation as
in effect on the date hereof.  A
certificate submitted to the Borrower by the relevant Letter of Credit Issuer
or a L/C Participant, as the case may be, (a copy of which certificate
shall be sent by the Letter of Credit Issuer or such L/C Participant to
the Administrative Agent) setting forth in reasonable detail the basis for the
determination of such additional amount or amounts necessary to compensate the
Letter of Credit Issuer or such L/C Participant as aforesaid shall be
conclusive and binding on the Borrower absent clearly demonstrable error.


 


3.6.                              Successor
Letter of Credit Issuer.  A Letter of
Credit Issuer may resign as Letter of Credit Issuer upon 60 days’ prior written
notice to the Administrative Agent, the Lenders and the Borrower.  If the Letter of Credit Issuer shall resign
as Letter of Credit Issuer under this Agreement, then the Borrower shall
appoint from among the Lenders with Revolving Credit Commitments a successor
issuer of Letters of Credit, whereupon such successor issuer shall succeed to
the rights, powers and duties of the Letter of Credit Issuer, and the term “Letter
of Credit Issuer” shall mean such successor issuer effective upon such
appointment.  At the time such
resignation shall become effective, the Borrower shall pay to


 


45





















 


the resigning Letter of Credit Issuer all accrued and unpaid fees
pursuant to Sections 4.1(c) and (e). 
The acceptance of any appointment as the Letter of Credit Issuer
hereunder by a successor Lender shall be evidenced by an agreement entered into
by such successor, in a form satisfactory to the Borrower and the
Administrative Agent and, from and after the effective date of such agreement,
such successor Lender shall have all the rights and obligations of the previous
Letter of Credit Issuer under this Agreement and the other Credit
Documents.  After the resignation of the
Letter of Credit Issuer hereunder, the resigning Letter of Credit Issuer shall
remain a party hereto and shall continue to have all the rights and obligations
of a Letter of Credit Issuer under this Agreement and the other Credit
Documents with respect to Letters of Credit issued by it prior to such
resignation, but shall not be required to issue additional Letters of
Credit.  After any retiring Letter of
Credit Issuer’s resignation as Letter of Credit Issuer, the provisions of this
Agreement relating to the Letter of Credit Issuer shall inure to its benefit as
to any actions taken or omitted to be taken by it (a) while it was Letter
of Credit Issuer under this Agreement or (b) at any time with respect to
Letters of Credit issued by such Letter of Credit Issuer.


 


SECTION 4.                                Fees;
Commitments


 


4.1.                              Fees.


 


(a)                                  The
Borrower agrees to pay to the Administrative Agent in Dollars, for the account
of each Lender having a Revolving Credit Commitment (in each case pro rata
according to the respective Revolving Credit Commitments of all such Lenders),
a commitment fee for each day from and including the Closing Date to but
excluding the Final Date.  Such
commitment fee shall be payable in arrears (i) on the last day of each
March, June, September and December (for the three-month period (or
portion thereof) ended on such day for which no payment has been received) and (ii) on
the Final Date (for the period ended on such date for which no payment has been
received pursuant to clause (i) above), and shall be computed for
each day during such period at a rate per annum equal to the Commitment Fee in
effect on such day on the Available Commitments in effect on such day.  Notwithstanding the foregoing, the Borrower
shall not be obligated to pay any amounts to any Defaulting Lender pursuant to
this Section 4.1.


 


(b)                                 The
Borrower agrees to pay to the Administrative Agent in Dollars for the account
of the Lenders pro  rata on the basis of their respective Letter
of Credit Exposure, a fee in respect of each Letter of Credit (the “Letter
of Credit Fee”), for the period from and including the date of issuance of
such Letter of Credit to but excluding the termination date of such Letter of
Credit computed at the per annum rate for each day equal to the Applicable Rate
for Revolving Credit Loans that are Eurodollar Loans minus 0.125% per annum on
the average daily Stated Amount of such Letter of Credit.  Such Letter of Credit Fees shall be due and
payable quarterly in arrears on the last day of each March, June, September and
December and on the date upon which the Total Revolving Credit Commitment
terminates and the Letter of Credit Outstanding shall have been reduced to
zero.


 


(c)                                  The
Borrower agrees to pay to the Administrative Agent in Dollars for the account
of the Letter of Credit Issuer a fee in respect of each Letter of Credit issued
by it (the “Fronting Fee”), for the period from and including the date
of issuance of such Letter of Credit to but excluding the termination date of
such Letter of Credit, computed at the rate for each day equal to 0.125% per
annum on the average daily Stated Amount of such Letter of Credit.  Such Fronting Fees shall be due and payable
quarterly in arrears on the last day of each March, June, September and December and
on the date upon which the Total Revolving Credit Commitment terminates and the
Letter of Credit Outstandings shall have been reduced to zero.


 


(d)                                 The
Borrower agrees to pay directly to the Letter of Credit Issuer in Dollars upon
each issuance of, drawing under, and/or amendment of, a Letter of Credit issued
by it such amount as the


 


46





















 


Letter of Credit Issuer and the Borrower shall have agreed upon for
issuances of, drawings under or amendments of, letters of credit issued by it.


 


4.2.                              Voluntary
Reduction of Revolving Credit Commitments. 
Upon at least one Business Day’s prior written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent at the
Administrative Agent’s Office (which notice the Administrative Agent shall
promptly transmit to each of the Lenders), the Borrower shall have the right,
without premium or penalty, on any day, permanently to terminate or reduce the
Revolving Credit Commitments in whole or in part, provided that (a) any
such reduction shall apply proportionately and permanently to reduce the
Revolving Credit Commitment of each of the Lenders, (b) any partial
reduction pursuant to this Section 4.2 shall be in the amount of at least
$1,000,000 and (c) after giving effect to such termination or reduction
and to any prepayments of the Loans made on the date thereof in accordance with
this Agreement, the aggregate amount of the Lenders’ Revolving Credit Exposures
shall not exceed the Total Revolving Credit Commitment.


 


4.3.                              Mandatory Termination
of Commitments.


 


(a)                                  The
Total Term Loan Commitments shall terminate at 5:00 p.m. (New York
time) on the Closing Date.


 


(b)                                 The
Total Revolving Credit Commitment shall terminate at 5:00 p.m. (New York
time) on the Revolving Credit Maturity Date.


 


(c)                                  The
Swingline Commitment shall terminate at 5:00 p.m. (New York time) on the
Swingline Maturity Date.


 


(d)                                 The
New Term Loan Commitments of any Lender shall terminate at 5:00 p.m. (New
York time) on the Increased Amount Date for such Lender.


 


SECTION 5.                                Payments


 


5.1.                              Voluntary
Prepayments.  The Borrower shall have
the right to prepay Term Loans, Revolving Credit Loans and Swingline Loans,
without premium or penalty, in whole or in part from time to time on the
following terms and conditions: (a) the Borrower shall give the Administrative
Agent at the Administrative Agent’s Office written notice (or telephonic notice
promptly confirmed in writing) of its intent to make such prepayment, the
amount of such prepayment and (in the case of Eurodollar Loans) the specific
Borrowing(s) pursuant to which made, which notice shall be given by the Borrower
no later than (i) in the case of Term Loans or Revolving Credit Loans,
10:00 a.m. (New York time) one Business Day prior to, or (ii) in the
case of Swingline Loans, 10:00 a.m. (New York time) on, the date of such
prepayment and shall promptly be transmitted by the Administrative Agent to
each of the Lenders or the Swingline Lender, as the case may be; (b) each
partial prepayment of any Borrowing of Term Loans or Revolving Credit Loans
shall be in a multiple of $100,000 and in an aggregate principal amount of at
least $1,000,000 and each partial prepayment of Swingline Loans shall be in a
multiple of $100,000 and in an aggregate principal amount of at least $100,000,
provided that no partial prepayment of Eurodollar Term Loans or
Eurodollar Revolving Credit Loans made pursuant to a single Borrowing shall reduce
the outstanding Eurodollar Term Loans or Eurodollar Revolving Credit Loans made
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
for Eurodollar Term Loans or Eurodollar Revolving Credit Loans; (c) any
prepayment of Eurodollar Term Loans or Eurodollar Revolving Credit Loans
pursuant to this Section 5.1 on any day other than the last day of an
Interest Period applicable thereto shall be subject to compliance by the
Borrower with the applicable provisions of Section 2.11.  Each prepayment in respect of any tranche of
Term Loans pursuant to this Section 5.1 shall be (a) applied to Term
Loans in such manner as the Borrower may determine and (b) applied to
reduce Repayment


 


47





















 


Amounts in such order as the Borrower may determine.  At the Borrower’s election in connection with
any prepayment pursuant to this Section 5.1, such prepayment shall not be
applied to any Term Loan or Revolving Credit Loan of a Defaulting Lender.


 


Notwithstanding
the foregoing, any prepayment of Term Loans that results in the prepayment of
all, but not less than all, of the outstanding Term Loans (other than a
refinancing in full of the Obligations hereunder) prior to the one year
anniversary of the Closing Date with the proceeds of new term loans under this
Agreement that have an applicable margin that is less than the Applicable Rate
for Term Loans as of the Closing Date may only be made if each Term Lender is
paid a prepayment premium of 1% of the principal amount of such Lender’s Term
Loans.  In addition, Section 13.7(b) may
only be utilized with respect to a Non-Consenting Lender in respect of any
amendment to this Agreement after the Closing Date and prior to the one year
anniversary of the Closing Date that has the effect of reducing the Applicable
Rate for Term Loans if such Non-Consenting Lender is paid a fee equal to 1% of
the principal amount of such Lenders Term Loans being replaced and repaid.


 


5.2.                              Mandatory Prepayments.


 


(a)                                  Term
Loan Prepayments.  (i)  On each
occasion that a Prepayment Event occurs, the Borrower shall, within one
Business Day after the occurrence of a Debt Incurrence Prepayment Event and
within five Business Days after the occurrence of any other Prepayment Event,
prepay, in accordance with paragraph (c) below, the principal amount
of Term Loans in an amount equal to 100% of the Net Cash Proceeds from such
Prepayment Event; provided that, at the option of the Borrower, the Net
Cash Proceeds from any transaction permitted by Section 10.4(e) (including
pursuant to any securitization) may be applied to repay Revolving Credit Loans,
which repayment shall automatically result in the reduction of the Revolving
Credit Commitment of each Lender by an amount equal to the amount of the
Revolving Credit Loans prepaid to such Lender.


 


(ii)                                  Not
later than the date that is ninety days after the last day of any fiscal year
(commencing with the fiscal year ending December 31, 2006),  the Borrower shall prepay, in accordance with
paragraph (c) below, the principal of Term Loans in an amount equal
to 50% of Excess Cash Flow for such fiscal year (provided such percentage shall
be reduced to 25% and 0% if the Consolidated Net Debt to Consolidated EBITDA
Ratio as of the end of such fiscal year is less than 4.50 to 1.00 and 3.50 to
1.00 respectively), minus the principal amount of Term Loans voluntarily
prepaid pursuant to Section 5.1 during such fiscal year.


 


(b)                                 Repayment
of Revolving Credit Loans.  If on any
date the aggregate amount of the Lenders’ Revolving Credit Exposures (all the
foregoing, collectively, the “Aggregate Revolving Credit Outstandings”)
exceeds 100% of the Total Revolving Credit Commitment as then in effect, the
Borrower shall forthwith repay on such date the principal amount of Swingline
Loans and, after all Swingline Loans have been paid in full, Revolving Credit
Loans in an amount equal to such excess. 
If, after giving effect to the prepayment of all outstanding Swingline
Loans and Revolving Credit Loans, the Aggregate Revolving Credit Outstandings exceed
the Total Revolving Credit Commitment then in effect, the Borrower shall pay to
the Administrative Agent an amount in cash equal to such excess and the
Administrative Agent shall hold such payment for the benefit of the Lenders as
security for the obligations of the Borrower hereunder (including obligations
in respect of Letter of Credit Outstandings) pursuant to a cash collateral
agreement to be entered into in form and substance satisfactory to the
Administrative Agent (which shall permit certain investments in Permitted
Investments satisfactory to the Administrative Agent, until the proceeds are applied
to the secured obligations).


 


(c)                                  Application
to Repayment Amounts.  Each
prepayment of Term Loans required by Section 5.2(a) shall be applied
to reduce scheduled Repayment Amounts in such order as the Borrower


 


48





















 


may determine up to an amount equal to the aggregate amount of the
applicable scheduled Repayment Amounts required to be made by the Borrower
pursuant to Section 2.5(b) during the two year period immediately
following the date of the prepayment (such amount being, the “Amortization
Amount”), provided that to the extent that the amount of the
prepayment exceeds the Amortization Amount, such excess shall be applied
ratably to reduce the then remaining Repayment Amounts.  


 


(d)                                 Application
to Term Loans.  With respect to each
prepayment of Term Loans required by Section 5.2(a), the Borrower may
designate the Types of Loans that are to be prepaid and the specific
Borrowing(s) pursuant to which made, provided that (i) Eurodollar
Term Loans may be designated for prepayment pursuant to this Section 5.2
only on the last day of an Interest Period applicable thereto unless all
Eurodollar Term Loans with Interest Periods ending on such date of required
prepayment and all ABR Loans have been paid in full; and (ii) Eurodollar
Term Loans made pursuant to a single Borrowing shall reduce the outstanding
Term Loans made pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount for Eurodollar Loans such Borrowing shall immediately be
converted into ABR Loans.  In the absence
of a designation by the Borrower as described in the preceding sentence, the Administrative
Agent shall, subject to the above, make such designation in its reasonable discretion
with a view, but no obligation, to minimize breakage costs owing under Section 2.11.


 


(e)                                  Application
to Revolving Credit Loans.  With
respect to each prepayment of Revolving Credit Loans elected by the Borrower
pursuant to Section 5.2(a) or required by Section 5.2(b), the
Borrower may designate (i) the Types of Loans that are to be prepaid and
the specific Borrowing(s) pursuant to which made and (ii) the Revolving
Credit Loans to be prepaid, provided that (w) Eurodollar Revolving
Credit Loans may be designated for prepayment pursuant to this Section 5.2
only on the last day of an Interest Period applicable thereto unless all
Eurodollar Loans with Interest Periods ending on such date of required
prepayment and all ABR Loans have been paid in full; (x) if any prepayment by
the Borrower of Eurodollar Revolving Credit Loans made pursuant to a single
Borrowing shall reduce the outstanding Revolving Credit Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount for Eurodollar
Revolving Credit Loans, as the case may be, such Borrowing shall immediately be
converted into ABR Loans; (y) each prepayment of any Loans made pursuant to a
Borrowing shall be applied pro  rata among such Loans; and
(z) notwithstanding the provisions of the preceding clause (y), no
prepayment made pursuant to Section 5.2(a) or Section 5.2(b) of
Revolving Credit Loans shall be applied to the Revolving Credit Loans of any
Defaulting Lender.  In the absence of a
designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in its
reasonable discretion with a view, but no obligation, to minimize breakage
costs owing under Section 2.11.


 


(f)                                    Eurodollar
Interest Periods.  In lieu of making
any payment pursuant to this Section 5.2 in respect of any Eurodollar Loan
other than on the last day of the Interest Period therefor so long as no
Default or Event of Default shall have occurred and be continuing, the Borrower
at its option may deposit with the Administrative Agent an amount equal to the
amount of the Eurodollar Loan to be prepaid and such Eurodollar Loan shall be
repaid on the last day of the Interest Period therefor in the required
amount.  Such deposit shall be held by
the Administrative Agent in a corporate time deposit account established on
terms reasonably satisfactory to the Administrative Agent, earning interest at
the then-customary rate for accounts of such type.  Such deposit shall constitute cash collateral
for the Obligations, provided that the Borrower may at any time direct
that such deposit be applied to make the applicable payment required pursuant
to this Section 5.2.


 


(g)                                 Minimum
Amount.  No prepayment shall be
required pursuant to Section 5.2(a)(i) unless and until the amount at
any time of Net Cash Proceeds from such Prepayment Events required to be
applied at or prior to such time pursuant to such Section and not yet
applied at or prior to


 


49





















 


such time to prepay Term Loans pursuant to such Section exceeds
$15,000,000 in the aggregate for all such Prepayment Events.


 


(h)                                 Foreign
Asset Sales.  Notwithstanding any
other provisions of this Section 5.2, (i) to the extent that any of
or all the Net Cash Proceeds of any asset sale by a Restricted Foreign Subsidiary
giving rise to an Asset Sale Prepayment Event (a “Foreign Asset Sale”)
are prohibited or delayed by applicable local law from being repatriated to the
United States, the portion of such Net Cash Proceeds so affected will not be
required to be applied to repay Term Loans at the times provided in this Section 5.2
but may be retained by the applicable Restricted Foreign Subsidiary so long,
but only so long, as the applicable local law will not permit repatriation to
the United States (the Borrower hereby agreeing to cause the applicable
Restricted Foreign Subsidiary to promptly take all actions required by the
applicable local law to permit such repatriation), and once such repatriation
of any of such affected Net Cash Proceeds is permitted under the applicable
local law, such repatriation will be immediately effected and such repatriated
Net Cash Proceeds will be promptly (and in any event not later than
two Business Days after such repatriation) applied (net of additional
taxes payable or reserved against as a result thereof) to the repayment of the
Term Loans pursuant to this Section 5.2 and (ii) to the extent that
the Borrower has determined in good faith that repatriation of any of or all
the Net Cash Proceeds of any Foreign Asset Sale would have a material adverse
tax cost consequence with respect to such Net Cash Proceeds, the Net Cash
Proceeds so affected may be retained by the applicable Restricted Foreign
Subsidiary, provided that, in the case of this clause (ii), on or
before the date on which any Net Cash Proceeds so retained would otherwise have
been required to be applied to reinvestments or prepayments pursuant to Section 5.2(a),
(x) the Borrower applies an amount equal to such Net Cash Proceeds to such
reinvestments or prepayments as if such Net Cash Proceeds had been received by
the Borrower rather than such Restricted Foreign Subsidiary, less the amount of
additional taxes that would have been payable or reserved against if such Net
Cash Proceeds had been repatriated (or, if less, the Net Cash Proceeds that
would be calculated if received by such Foreign Subsidiary) or (y) such
Net Cash Proceeds are applied to the repayment of Indebtedness of a Restricted
Foreign Subsidiary.


 


5.3.                              Method and Place of
Payment.


 


(a)                                  Except
as otherwise specifically provided herein, all payments under this Agreement
shall be made by the Borrower, without set-off, counterclaim or deduction of
any kind, to the Administrative Agent for the ratable account of the Lenders entitled
thereto, the Letter of Credit Issuer or the Swingline Lender, as the case may
be, not later than 12:00 Noon (New York time) on the date when due and
shall be made in Dollars, in immediately available funds, at the Administrative
Agent’s Office or at such other office as the Administrative Agent shall
specify for such purpose by notice to the Borrower, it being understood that
written or facsimile notice by the Borrower to the Administrative Agent to make
a payment from the funds in the Borrower’s account at the Administrative Agent’s
Office shall constitute the making of such payment to the extent of such funds
held in such account.  All payments under
each Credit Document (whether of principal, interest or otherwise) shall be
made (i) in the case of the principal of and interest on each Loan, in the
currency in which such Loan is denominated, (ii) in the case of reimbursement
obligations in respect of Letters of Credit, in the currency in which such
Letter of Credit is denominated or (iii) in the case of any
indemnification or expense reimbursement payment, in Dollars, except as
otherwise expressly provided herein.  The
Administrative Agent will thereafter cause to be distributed on the same day
(if payment was actually received by the Administrative Agent prior to 2:00 p.m.
(New York time) on such day) like funds relating to the payment of principal or
interest or Fees ratably to the Lenders entitled thereto.


 


(b)                                 Any
payments by Borrower under this Agreement that are made later than 12:00 Noon
(New York time) shall be deemed to have been made on the next succeeding
Business Day.  Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business Day,
the


 


50





















 


due date thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest shall be payable during
such extension at the applicable rate in effect immediately prior to such
extension.


 


5.4.                              Net
Payments.


 


(a)                                  Subject
to the following sentence, all payments made by or on behalf of the Credit
Parties under this Agreement or any other Credit Document shall be made free
and clear of, and without deduction or withholding for or on account of, any
current or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding (i) taxes
imposed on the Administrative Agent or any Lender as a result of a current or
former connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such connection
arising solely from the Administrative Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement) and (ii) in the case of any Non-U.S. Lender, any
U.S. federal withholding tax that (A) is imposed on amounts payable to
such Non-U.S. Lender under a law that is in effect at the time such Non-U.S.
Lender becomes a party hereto (or designates a new lending office), except to
the extent that such Non-U.S. Lender (in the case of a change in lending
office) or its assignor (in the case of an assignment) was entitled, at the
time of designation of a new lending office or assignment, to receive
additional amounts from the Credit Parties with respect to such withholding tax
pursuant to this Section 5.4(a), or (B) is attributable to such
Non-U.S. Lender’s failure to comply with Section 5.4(d); provided that clause (ii)(A) shall not apply to any assignee or
new lending office pursuant to a request by the Borrower.  If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded
Taxes”) are required to be withheld from any amounts payable under this
Agreement, the Credit Parties shall increase the amounts payable to the
Administrative Agent or such Lender to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement.  Whenever
any Non-Excluded Taxes are payable by the Credit Parties as promptly as
possible thereafter the Credit Parties shall send to the Administrative Agent
for its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt (or other evidence acceptable to
such Lender, acting reasonably) received by the Credit Parties showing payment
thereof.  The agreements in this Section 5.4(a) shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.


 


(b)                                 [Reserved].


 


(c)                                  Borrower
shall indemnify and hold harmless the Administrative Agent and each Lender
within 15 Business Days after written demand therefor, for the full amount of
any Non-Excluded Taxes imposed on the Administrative Agent or such Lender as
the case may be, on or with respect to any payment by or on account of any
obligation of Borrower or any Guarantor hereunder or under any other Credit
Document (including Non-Excluded Taxes imposed or asserted on or attributable
to amounts payable under this Section 5.4) and any interest, penalties and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Non-Excluded Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority.  A
certificate as to the amount of such payment or liability delivered to Borrower
by a Lender or by the Administrative Agent on its own behalf or on behalf of a
Lender shall be conclusive absent manifest error.


 


(d)                                 Each
Non-U.S. Lender shall:


 


51





















 


(i)                                     deliver
to the Borrower and the Administrative Agent on or before the date it becomes a
Lender two copies of either (x) in the case of Non-U.S. Lender claiming
exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of “portfolio interest,”
United States Internal Revenue Service Form W-8BEN (together with a
certificate representing that such Non-U.S. Lender is not a bank for purposes
of Section 881(c) of the Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), or (y)
Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case
properly completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or reduced rate of, U.S. Federal withholding tax on payments by
the Borrower under this Agreement;


 


(ii)                                  deliver
to the Borrower and the Administrative Agent two further copies of any such
form or certification (or any applicable successor form) on or before the date
that any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrower; and


 


(iii)                               obtain
such extensions of time for filing and complete such U.S. federal withholding
tax forms or certifications as may reasonably be requested by the Borrower or
the Administrative Agent;


 


unless in any
such case any change in treaty, law or regulation has occurred prior to the
date on which any such delivery would otherwise be required that renders such
form unapplicable or would prevent such Lender from duly completing and
delivering any such form and such Lender so advises the Borrower and the
Administrative Agent.  Each Person that
shall become a Participant pursuant to Section 13.6 or a Lender pursuant
to Section 13.6 shall, upon the effectiveness of the related transfer, be
required to provide all the forms and statements required pursuant to this Section 5.4(d),
provided that in the case of a Participant such Participant shall
furnish all such required forms and statements to the Lender from which the
related participation shall have been purchased.


 


(e)                                  If
the Borrower determines in good faith that a reasonable basis exists for
contesting any taxes for which indemnification has been demanded hereunder, the
relevant Lender or the Administrative Agent, as the case may be, shall
cooperate with the Borrower in challenging such taxes at Borrower’s expense if
so reasonably requested by Borrower.  If
any Lender or the Administrative Agent, as the case may be, receives a refund
of a tax for which a payment has been made by the Credit Parties pursuant to
this Section 5.4, which refund in the good faith judgment of such Lender
or the Administrative Agent, as the case may be, is attributable to such
payment made by the Credit Parties then the Lender or the Administrative Agent,
as the case may be, shall reimburse the Credit Parties for such amount
(together with any interest received thereon) as the Lender or the
Administrative Agent, as the case may be, determines to be the proportion of
the refund as will leave it, after such reimbursement, in no better or worse
position (taking into account all reasonable out-of-pocket expenses) than it
would have been in if the payment had not been imposed in the first instance.  The Lender shall not be obliged to disclose
any information regarding its tax affairs or computations to the Borrower in connection
with this paragraph (d) or any other provision of this Section 5.4.


 


5.5.                              Computations of
Interest and Fees.


 


(a)                                  Interest
on Eurodollar Loans and, except as provided in the next succeeding sentence,
ABR Loans shall be calculated on the basis of a 360-day year for the actual
days elapsed.  Interest on ABR Loans in
respect of which the rate of interest is calculated on the basis of the Prime
Rate and interest


 


52





















 


on overdue interest shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed.


 


(b)                                 Fees
and Letter of Credit Outstanding shall be calculated on the basis of a 360-day
year for the actual days elapsed.


 


5.6.                              Limit on Rate of
Interest.


 


(a)                                  No
Payment Shall Exceed Lawful Rate. 
Notwithstanding any other term of this Agreement, the Borrower shall not
be obliged to pay any interest or other amounts under or in connection with
this Agreement in excess of the amount or rate permitted under or consistent
with any applicable law, rule or regulation.  


 


(b)                                 Payment
at Highest Lawful Rate.  If the
Borrower is not obliged to make a payment which it would otherwise be required
to make, as a result of Section 5.6(a), the Borrower shall make such
payment to the maximum extent permitted by or consistent with applicable laws, rules and
regulations.


 


(c)                                  Adjustment
if Any Payment Exceeds Lawful Rate. 
If any provision of this Agreement or any of the other Credit Documents
would obligate the Borrower to make any payment of interest or other amount
payable to any Lender in an amount or calculated at a rate which would be prohibited
by any applicable law, rule or regulation, then notwithstanding such
provision, such amount or rate shall be deemed to have been adjusted with
retroactive effect to the maximum amount or rate of interest, as the case may
be, as would not be so prohibited by law, such adjustment to be effected, to
the extent necessary, as follows:


 


(i)                                     firstly,
by reducing the amount or rate of interest required to be paid by the Borrower
to the affected Lender under Section 2.8; and


 


(ii)                                  thereafter,
by reducing any fees, commissions, premiums and other amounts required to be
paid by the Borrower to the affected Lender.


 


Notwithstanding
the foregoing, and after giving effect to all adjustments contemplated thereby,
if any Lender shall have received from the Borrower an amount in excess of the
maximum permitted by any applicable law, rule or regulation, then the
Borrower shall be entitled, by notice in writing to the Administrative Agent to
obtain reimbursement from that Lender in an amount equal to such excess, and
pending such reimbursement, such amount shall be deemed to be an amount payable
by that Lender to the Borrower.  Any
amount or rate of interest referred to in this Section 5.6(c) shall
be determined in accordance with generally accepted actuarial practices and
principles as an effective annual rate of interest over the term that any Loan
remains outstanding.


 


SECTION 6.                                Conditions
Precedent to Initial Borrowing


 


The initial
Borrowing under this Agreement is subject to the satisfaction of the following
conditions precedent, except as otherwise agreed between the Borrower and the
Administrative Agent pursuant to that certain post-closing letter dated as of
the date hereof:


 


6.1.                              Credit
Documents.  The Administrative Agent
shall have received:


 


(a)                                  this
Agreement, executed and delivered by a duly authorized officer of each of the
Holdings, the Borrower and each Lender;


 


53





















 


(b)                                 the
Guarantee, executed and delivered by a duly authorized officer of each Guarantor;


 


(c)                                  the
Pledge Agreement, executed and delivered by a duly authorized officer of each
pledgor party thereto;


 


(d)                                 the
Security Agreement, executed and delivered by a duly authorized officer of each
grantor party thereto; 


 


(e)                                  a
Mortgage in respect of each Mortgaged Property to be Mortgaged on the Closing
Date, executed and delivered by a duly authorized officer of each mortgagor
party thereto; and


 


(f)                                    the
Perfection Certificate, executed and delivered by a duly authorized officer of
each Credit Party party thereto.


 


6.2.                              Collateral.


 


(a)                                  All
outstanding equity interests in whatever form of the Borrower and each Restricted
Subsidiary owned by or on behalf of any Credit Party (other than a Restricted
Foreign Subsidiary) shall have been pledged pursuant to the Pledge Agreement
(except that the Borrower and its Restricted Subsidiaries shall not be required
to pledge more than 65% of the outstanding voting equity interests of any
Restricted Foreign Subsidiary) and the Administrative Agent shall have
received, to the extent certificated, all certificates representing securities
pledged under the Pledge Agreement, accompanied by instruments of transfer and
undated stock powers endorsed in blank.


 


(b)                                 All
Indebtedness for borrowed money in excess of $5.0 million of Holdings, the
Borrower and each Subsidiary that is owing to any Credit Party to the Pledge
Agreement shall be evidenced by one or more global promissory notes and shall
have been pledged pursuant to the Pledge Agreement, and the Administrative
Agent shall have received all such promissory notes, together with instruments
of transfer with respect thereto endorsed in blank.


 


(c)                                  All
documents and instruments, including Uniform Commercial Code or other
applicable personal property security financing statements, required by law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded to create the Liens intended to be created by the Security Agreement
or the Pledge Agreement and perfect such Liens to the extent required by, and
with the priority required by, the Security Agreement or the Pledge Agreement
shall have been filed, registered or recorded or delivered to the
Administrative Agent for filing, registration or recording.


 


(d)                                 The
Administrative Agent shall have received, in respect of each Mortgaged Property
owned by the Borrower or a Subsidiary Guarantor, a policy or policies of title
insurance issued by a nationally recognized title insurance company insuring
the Lien of each Mortgage as a valid first Lien on the Mortgaged Property
described therein, free of any other Liens except as expressly permitted by Section 10.2,
together with such endorsements, coinsurance and reinsurance as the Administrative
Agent may reasonably request.


 


6.3.                              Legal
Opinions.  The Administrative Agent
shall have received the executed legal opinions of (a) Simpson Thacher &
Bartlett LLP, special New York counsel to the Borrower, substantially in the
form of Exhibit G-1, and (b) local counsel to the Borrower in
certain jurisdictions as may be agreed upon by the Borrower and the
Administrative Agent, substantially in the form of Exhibit G-2.  The


 


54





















 


Borrower the other Credit Parties and the Administrative Agent hereby
instruct such counsel to deliver such legal opinions.


 


6.4.                              No Default.  After giving effect to the Borrowings on the
Closing Date and the other transactions contemplated hereby, no Default or Event
of Default has occurred and is continuing.


 


6.5.                              Subordinated
Notes.  The Borrower shall have
received gross proceeds of not less than $300,000,000 from the issuance of
Subordinated Notes under the Subordinated Note Indenture in a public offering
or in a Rule 144A or other private placement.  To the extent material to the interests of
the Lenders, the terms and conditions of the Subordinated Notes (including, but
not limited to, subordination, maturity, covenants, events of default,
remedies, redemption and prepayment events) shall be reasonably satisfactory to
the Joint Lead Arrangers.


 


6.6.                              Equity
Proceeds.  Prior to or simultaneously
with the initial Credit Extension, (a) the Equity Proceeds shall have been
funded in full in cash, and (b) the Borrower shall have received cash
proceeds from the Equity Proceeds in an amount equal to not less than 30% of
the pro forma capitalization of the Borrower after giving effect to the
consummation of the Transactions.


 


6.7.                              Closing
Certificates.  The Administrative Agent
shall have received a certificate of each Credit Party, dated the Closing Date,
substantially in the form of Exhibit H, with appropriate insertions,
executed by the President or any Vice President and the Secretary or any
Assistant Secretary of such Credit Party, and attaching the documents referred
to in Sections 6.8 and 6.9.


 


6.8.                              Corporate
Proceedings of Each Credit Party. 
The Administrative Agent shall have received a copy of the resolutions,
in form and substance satisfactory to the Administrative Agent, of the Board of
Directors of each Credit Party (or a duly authorized committee thereof)
authorizing (a) the execution, delivery and performance of the Credit
Documents (and any agreements relating thereto) to which it is a party and (b) in
the case of the Borrower, the extensions of credit contemplated hereunder.


 


6.9.                              Corporate
Documents.  The Administrative Agent
shall have received true and complete copies of the certificate of
incorporation and by-laws (or equivalent organizational documents) of each
Credit Party.


 


6.10.                        Fees.  The Lenders shall have received the fees in
the amounts previously agreed in writing by the Agents and such Lenders to be
received on the Closing Date and all expenses (including the reasonable fees,
disbursements and other charges of counsel) for which invoices have been
presented on or prior to the Closing Date shall have been paid.


 


6.11.                        Target
Material Adverse Effect.  On the
Closing Date, since December 31, 2004, no Target Material Adverse Effect
has occurred.


 


6.12.                        Acquisition
and Merger/Related Agreements. 
Simultaneously with the initial Credit Event on the Closing Date, the
Acquisition and Merger shall have been consummated as contemplated in the
Merger Agreement and the Administrative Agent shall have received a fully
executed or conformed copy of the Merger Agreement which shall be in full force
and effect which shall not have been amended, modified or waived in a manner
materially adverse to the Lenders.


 


6.13.                        Solvency
Certificate.  On the Closing Date,
Administrative Agent shall have received a certificate from the chief financial
officer of the Borrower in form, scope and substance satisfactory to
Administrative Agent, with appropriate attachments and demonstrating that after
giving effect to the consummation of the Transactions, the Borrower taken as a
whole with its Subsidiaries are Solvent.


 


55





















 


6.14.                        [Reserved].  


 


6.15.                        Financial
Statements.  Lenders shall have
received from the Borrower (a) the Historical Financial Statements, which
financial statements shall not reflect any Target Material Adverse Effect from
what was reflected in the financial statements previously provided to the Administrative
Agent, (b) pro forma consolidated balance sheet and related pro forma
consolidated statements of income of the Borrower as of and for the last
twelve-month period ended at least 45 days prior to the Closing Date, prepared
to give effect to the Transactions as if they had occurred as of such date (in
the case of the balance sheet) or at the beginning of such period (in the case
of such other financial statements), which financial statements shall not
reflect any Target Material Adverse Effect from what was reflected in the
projections previously provided to the Administrative Agent and (c) an
officer’s certificate with respect to the financial statements and pro forma
information in form and substance reasonably satisfactory to the Administrative
Agent. 


 


6.16.                        Tender
Offer/Refinancing.  Concurrently with
the initial Credit Event, the Administrative Agent shall have received (a) reasonably
satisfactory evidence that a Successful Tender Offer has been consummated and
that the consent to remove customary restrictive covenants from the Existing
Indenture governing the Existing Notes shall have been successfully effected
and  (b) satisfactory evidence that
all loans and commitments to lend under the Existing Credit Agreement shall
have been terminated and all liens in respect of amounts due thereunder shall
have been released or arrangements for such release satisfactory to the
Administrative Agent shall have been made.


 


SECTION 7.                                Conditions
Precedent to All Credit Events


 


The agreement
of each Lender to make any Loan requested to be made by it on any date
(including, without limitation, the Closing Date, but excluding Mandatory
Borrowings) and the obligation of the Letter of Credit Issuer to issue Letters
of Credit on any date is subject to the satisfaction of the following
conditions precedent:


 


7.1.                              No
Default; Representations and Warranties. 
At the time of each Credit Event and also after giving effect thereto (a) no
Default or Event of Default shall have occurred and be continuing and (b) all
representations and warranties made by any Credit Party contained herein or in the
other Credit Documents (other than, in the case of the initial Credit Event on
the Closing Date only, Sections 8.3, 8.4, 8.6, 8.7(b), 8.8., 8.9, 8.10, 8.11,
8.12, 8.13, 8.14, 8.15 and 8.16 of this Agreement) 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 Credit Event (except
where such representations and warranties expressly relate to an earlier date,
in which case such representations and warranties shall have been true and
correct in all material respects as of such earlier date).


 


7.2.                              Notice of Borrowing;
Letter of Credit Request.


 


(a)                                  Prior
to the making of each Term Loan, each Revolving Credit Loan (other than any
Revolving Credit Loan made pursuant to Section 3.4(a)) and each Swingline
Loan, the Administrative Agent shall have received a Notice of Borrowing
(whether in writing or by telephone) meeting the requirements of Section 2.3.


 


(b)                                 Prior
to the issuance of each Letter of Credit, the Administrative Agent and the
Letter of Credit Issuer shall have received a Letter of Credit Request meeting
the requirements of Section 3.2(a).


 


56





















 


The acceptance
of the benefits of each Credit Event shall constitute a representation and
warranty by each Credit Party to each of the Lenders that all the applicable
conditions specified above exist as of that time.


 


SECTION 8.                                Representations,
Warranties and Agreements


 


In order to
induce the Lenders to enter into this Agreement, to make the Loans and issue or
participate in Letters of Credit as provided for herein, Holdings and the
Borrower make the following representations and warranties to, and agreements
with, the Lenders, all of which shall survive the execution and delivery of
this Agreement and the making of the Loans and the issuance of the Letters of
Credit:


 


8.1.                              Corporate
Status.  Holdings and the Borrower
and each Material Subsidiary (a) is a duly organized and validly existing
corporation or other entity in good standing under the laws of the jurisdiction
of its organization and has the corporate or other organizational power and
authority to own its property and assets and to transact the business in which
it is engaged and (b) has duly qualified and is authorized to do business
and is in good standing in all jurisdictions where it is required to be so qualified,
except where the failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect.


 


8.2.                              Corporate
Power and Authority.  Each Credit
Party has the corporate or other organizational power and authority to execute,
deliver and carry out the terms and provisions of the Credit Documents to which
it is a party and has taken all necessary corporate or other organizational
action to authorize the execution, delivery and performance of the Credit
Documents to which it is a party.  Each
Credit Party has duly executed and delivered each Credit Document to which it
is a party and each such Credit Document constitutes the legal, valid and
binding obligation of such Credit Party enforceable in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors’ rights generally and subject to
general principles of equity.


 


8.3.                              No
Violation.  Neither the execution,
delivery or performance by any Credit Party of the Credit Documents to which it
is a party nor compliance with the terms and provisions thereof nor the
consummation of the Transactions and the other transactions contemplated hereby
or thereby will (a) contravene any applicable provision of any material
law, statute, rule, regulation, order, writ, injunction or decree of any court
or governmental instrumentality, (b) result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of (or the obligation to create or
impose) any Lien upon any of the property or assets of any of Holdings, the
Borrower or any of the Restricted Subsidiaries (other than Liens created under
the Credit Documents) pursuant to, the terms of any material indenture
(including the Subordinated Note Indenture), loan agreement, lease agreement,
mortgage, deed of trust, agreement or other material instrument to which
Holdings, the Borrower or any of the Restricted Subsidiaries is a party or by
which it or any of its property or assets is bound or (c) violate any
provision of the certificate of incorporation, by-laws or other constitutional
documents of Holdings, the Borrower or any of the Restricted Subsidiaries.


 


8.4.                              Litigation.  There are no actions, suits or proceedings
(including Environmental Claims) pending or, to the knowledge of Holdings or
the Borrower, threatened with respect to Holdings, the Borrower or any of its
Subsidiaries that could reasonably be expected to result in a Material Adverse
Effect.


 


8.5.                              Margin
Regulations.  Neither the making of
any Loan hereunder nor the use of the proceeds thereof will violate the
provisions of Regulation T, U or X of the Board.


 


8.6.                              Governmental
Approvals.  No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any Governmental Authority is


 


57





















 


required to authorize or is required in connection with (a) the
execution, delivery and performance of any Credit Document or (b) the legality,
validity, binding effect or enforceability of any Credit Document, except any
of the foregoing the failure to obtain or make could not reasonably be expected
to have a Material Adverse Effect.


 


8.7.                              Investment
Company Act/Public Utility Holding Company Act.  Neither Holdings nor the Borrower is (a) an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended, or (b) is a “holding company,” or a “subsidiary company” of a “holding
company,” or an “affiliate” of a “holding company” or of a “subsidiary company”
of a “holding company,” within the meaning of the Public Utility Holding
Company Act of 1935. 


 


8.8.                              True and Complete
Disclosure.


 


(a)                                  None
of the factual information and data (taken as a whole) heretofore or contemporaneously
furnished by any of Holdings, the Borrower any of the Subsidiaries or any of their
respective authorized representatives in writing to the Joint Lead Arrangers,
Administrative Agent and/or any Lender on or before the Closing Date (including
(i) the Confidential Information Memorandum and (ii) all information
contained in the Credit Documents) for purposes of or in connection with this
Agreement or any transaction contemplated herein contained any untrue statement
or omitted to state any material fact necessary to make such information and
data (taken as a whole) not misleading at such time in light of the
circumstances under which such information or data was furnished, it being
understood and agreed that for purposes of this Section 8.8(a), such
factual information and data shall not include projections and pro forma
financial information.


 


(b)                                 The
projections and pro forma financial information contained in the information
and data referred to in paragraph (a) above were based on good faith
estimates and assumptions believed by such Persons to be reasonable at the time
made, it being recognized by the 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.


 


8.9.                              Financial
Condition; Financial Statements.  The
(a) unaudited historical consolidated financial information of the
Borrower as set forth in the Confidential Information Memorandum, and (b) the
Historical Financial Statements, in each case present or will, when provided,
present fairly in all material respects the combined financial position of the
Borrower at the respective dates of said information, statements and results of
operations for the respective periods covered thereby.  The financial statements referred to in
clause (b) of this Section 8.9 have been prepared in accordance
with GAAP consistently applied except to the extent provided in the notes to
said financial statements.  There has
been no Material Adverse Change since December 31, 2004.


 


8.10.                        Tax
Returns and Payments.  Each of
Holdings, the Borrower and the Subsidiaries has filed all federal income tax
returns and all other material tax returns, domestic and foreign, required to
be filed by it and has paid all material taxes and assessments payable by it
that have become due, other than those not yet delinquent or contested in good
faith and for which adequate reserves have been established in accordance with
GAAP.  Each of Holdings, the Borrower and
each of the Subsidiaries have paid, or have provided adequate reserves (in the
good faith judgment of the management of the Borrower) in accordance with GAAP
for the payment of, all material federal, state, provincial and foreign income
taxes applicable for all prior fiscal years and for the current fiscal year to
the Closing Date.


 


58





















 


8.11.                        Compliance with ERISA.


 


(a)                                  Each
Plan is in compliance with ERISA, the Code and any applicable Requirement of
Law; no Reportable Event has occurred (or is reasonably likely to occur) with
respect to any Plan; no Plan is insolvent or in reorganization (or is reasonably
likely to be insolvent or in reorganization), and no written notice of any such
insolvency or reorganization has been given to any of Holdings, the Borrower,
any Subsidiary or any ERISA Affiliate; no Plan (other than a multiemployer
plan) has an accumulated or waived funding deficiency (or is reasonably likely
to have such a deficiency); none of Holdings, the Borrower, any Subsidiary or
any ERISA Affiliate has incurred (or is reasonably likely expected to incur)
any liability to or on account of a Plan pursuant to Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Code or has been notified in writing that it will incur any
liability under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted (or are reasonably likely to be instituted) to
terminate or to reorganize any Plan or to appoint a trustee to administer any
Plan, and no written notice of any such proceedings has been given to any of
Holdings, the Borrower, any Subsidiary or any ERISA Affiliate; and no lien
imposed under the Code or ERISA on the assets of any of Holdings, the Borrower
or any Subsidiary or any ERISA Affiliate exists (or is reasonably likely to
exist) nor has Holdings, the Borrower, any Subsidiary or any ERISA Affiliate
been notified in writing that such a lien will be imposed on the assets of any
of Holdings, the Borrower, any Subsidiary or any ERISA Affiliate on account of
any Plan, except to the extent that a breach of any of the representations,
warranties or agreements in this Section 8.11(a) would not result,
individually or in the aggregate, in an amount of liability that would be
reasonably likely to have a Material Adverse Effect or relates to any matter
disclosed in the financial statements of the Borrower contained in the
Confidential Information Memorandum.  No
Plan (other than a multiemployer plan) has an Unfunded Current Liability that
would, individually or when taken together with any other liabilities
referenced in this Section 8.11(a), be reasonably likely to have a
Material Adverse Effect.  With respect to
Plans that are multiemployer plans (as defined in Section 3(37) of ERISA),
the representations and warranties in this Section 8.11(a), other than any
made with respect to (i) liability under Section 4201 or 4204 of
ERISA or (ii) liability for termination or reorganization of such Plans
under ERISA, are made to the best knowledge of the Borrower.


 


(b)                                 Except
where noncompliance would not reasonably be expected to result in a Material
Adverse Effect, (i) each Foreign Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities, and (ii) neither
Holdings, the Borrower nor any Subsidiary have incurred any material obligation
in connection with the termination of or withdrawal from any Foreign Plan.  All contributions or other payments which are
due with respect to each Foreign Plan have been made in full and there are no
funding deficiencies thereunder, except to the extent any such event or
deficiency would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.


 


8.12.                        Subsidiaries.  On the Closing Date, Holdings does not have
any Subsidiaries other than the Borrower and its Subsidiaries.  Schedule 8.12 lists each Subsidiary
of the Borrower (and the direct and indirect ownership interest of the Borrower
therein), in each case existing on the Closing Date.  To the knowledge of the Borrower, after due
enquiry, each Material Subsidiary as of the Closing Date has been so designated
on Schedule 8.12.


 


8.13.                        Patents,
etc.  Holdings, the Borrower and each
of the Restricted Subsidiaries have obtained all patents, trademarks, servicemarks,
trade names, copyrights, licenses and other rights, free from burdensome
restrictions, that are necessary for the operation of their respective
businesses as currently conducted and as proposed to be conducted, except where
the failure to obtain any such rights could not reasonably be expected to have
a Material Adverse Effect.


 


59





















 


8.14.                        Environmental Laws.


 


(a)                                  Except
as could not reasonably be expected to have a Material Adverse Effect: (i) each
of Holdings, the Borrower and each of the Subsidiaries are in compliance with
all Environmental Laws in all jurisdictions in which Holdings, the Borrower and
each of the Subsidiaries are currently doing business (including having
obtained all material permits required under Environmental Laws); (ii) each
of Holdings, the Borrower will comply and cause each of the Subsidiaries to
comply with all such Environmental Laws (including all permits required under
Environmental Laws); and (iii) none of Holdings, the Borrower and each of
the Subsidiaries has become subject to any Environmental Claim or any other
liability under any Environmental Law.


 


(b)                                 None
of Holdings, the Borrower or any of the Subsidiaries has treated, stored,
transported, released or disposed of Hazardous Materials at or from any
currently or formerly owned Real Estate or facility relating to its business in
a manner that could reasonably be expected to have a Material Adverse Effect.


 


8.15.                        Properties.


 


(a)                                  Each
of Holdings, the Borrower and each of the Subsidiaries have good and marketable
title to or a valid leasehold interest in all properties that are necessary for
the operation of their respective businesses as currently conducted and as proposed
to be conducted, free and clear of all Liens (other than any Liens permitted by
this Agreement) and except where the failure to have such good title could not
reasonably be expected to have a Material Adverse Effect. 


 


(b)                                 No
Mortgage encumbers improved Real Estate that is located in an area that has
been identified by the Secretary of Housing and Urban Development as an area
having specified flood hazards within the meaning of the National Flood Insurance
Act of 1968 unless flood insurance available under such Act has been obtained
in accordance with Section 9.3.


 


8.16.                        Solvency.  On the Closing Date after giving effect to
the Transactions, the Borrower and its Subsidiaries, on a consolidated basis,
are Solvent.  


 


SECTION 9.                                Affirmative
Covenants


 


Each of
Holdings and the Borrower hereby covenants and agrees that on the Closing Date
and thereafter, until the Commitments, the Swingline Commitment and each Letter
of Credit have terminated and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder, are paid in full:


 


9.1.                              Information
Covenants.  Holdings or the Borrower
will furnish to each Lender and the Administrative Agent:


 


(a)                                  Annual
Financial Statements.  As soon as available and in any event on or before the date on
which such financial statements are required to be filed with the SEC (or,
if such financial statements are not required to be filed with the SEC, on or
before the date that is 90 days after the end of each such fiscal year),
the consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal year, and the related consolidated statement of operations
and cash flows for such fiscal year, setting forth comparative consolidated
figures for the preceding fiscal year (including a note which reconciles the
differences between the balance sheet, statement of operations and statement of
cash flows of Borrower and its Subsidiaries and the balance sheet, statement of
operations and statement of cash flows of Borrower and its Restricted 


 


60





















 


Subsidiaries),
certified by independent certified public accountants of recognized national
standing whose opinion shall not be qualified as to the scope of audit or as to
the status of the Borrower or any of the Material Subsidiaries (or group of
Subsidiaries that together would constitute a Material Subsidiary) as a going
concern, together in any event with a certificate of such accounting firm
stating that in the course of its regular audit of the business of the Borrower
and the Material Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm has obtained no
knowledge of any Default or Event of Default relating to Section 10.9 or
10.10 that has occurred and is continuing or, if in the opinion of such
accounting firm such a Default or Event of Default has occurred and is continuing,
a statement as to the nature thereof.  


 


(b)                                 Quarterly
Financial Statements.  As soon as
available and in any event on or before the date on which such financial
statements are required to be filed with the SEC with respect to each of the
first three quarterly accounting periods in each fiscal year of the Borrower
(or, if such financial statements are not required to be filed with the SEC, on
or before the date that is 45 days after the end of each such quarterly
accounting period), the consolidated balance sheet of the Borrower and the
Subsidiaries, as at the end of such quarterly period and the related
consolidated statement of operations for such quarterly accounting period and
for the elapsed portion of the fiscal year ended with the last day of such
quarterly period, and the related consolidated statement of cash flows for the
elapsed portion of the fiscal year ended with the last day of such quarterly
period, and setting forth comparative consolidated figures for the related periods
in the prior fiscal year or, in the case of such consolidated balance sheet,
for the last day of the prior fiscal year (including a note which reconciles
the differences between the balance sheet, statement of operations and
statement of cash flows of Borrower and its Subsidiaries and the balance sheet,
statement of operations and statement of cash flows of Borrower and its
Restricted Subsidiaries), all of which shall be certified by an Authorized
Officer of the Borrower, subject to changes resulting from audit and normal
year-end audit adjustments. 


 


(c)                                  Budgets.  Within 60 days after the commencement of
each fiscal year of the Borrower, budgets of the Borrower in reasonable detail
for the fiscal year as customarily prepared by management of the Borrower for
their internal use consistent in scope with the financial statements provided
pursuant to Section 9.1(a), setting forth the principal assumptions upon
which such budgets are based.


 


(d)                                 Officer’s
Certificates.  At the time of the
delivery of the financial statements provided for in Sections 9.1(a) and
(b), a certificate of an Authorized Officer of the Borrower to the effect that
no Default or Event of Default exists or, if any Default or Event of Default
does exist, specifying the nature and extent thereof, which certificate shall
set forth (i) the calculations required to establish whether the Borrower
and the Subsidiaries were in compliance with the provisions of Sections 10.9
and 10.10 as at the end of such fiscal year or period, as the case may be, (ii) a
specification of any change in the identity of the Restricted Subsidiaries,
Unrestricted Subsidiaries and Foreign Subsidiaries as at the end of such fiscal
year or period, as the case may be, from the Restricted Subsidiaries,
Unrestricted Subsidiaries and Foreign Subsidiaries, respectively, provided to
the Lenders on the Closing Date or the most recent fiscal year or period, as
the case may be, (iii) the then applicable Consolidated Net Debt to
Consolidated EBITDA Ratio and (iv) the amount of any Pro Forma Adjustment
not previously set forth in a Pro Forma Adjustment Certificate or any change in
the amount of a Pro Forma Adjustment set forth in any Pro Forma Adjustment
Certificate previously provided and, in either case, in reasonable detail, the
calculations and basis therefore and, if such certificate demonstrates an Event
of Default of any covenant under Section 10.9 or 10.10, any of the
Permitted Holders may deliver, together with such certificate, notice of their
intent to cure (a “Notice of Intent to Cure”) such Event of Default
pursuant to


 


61





















 


Section 11.14;
provided that the delivery of a Notice of Intent to Cure shall in no way
affect or alter the occurrence, existence or continuation of any such Event of
Default or the rights, benefits, powers and remedies of the Administrative
Agent and the Lenders under any Credit Document.  At the time of the delivery of the financial
statements provided for in Section 9.1(a), (i) a certificate of an
Authorized Officer of the Borrower setting forth in reasonable detail the
Available Amount as at the end of the fiscal year to which such financial
statements relate and (ii) a certificate of an Authorized Officer and the
chief legal officer of the Borrower (x) setting forth the information
required pursuant to Section 2 of the Perfection Certificate or confirming
that there has been no change in such information since the Closing Date or the
date of the most recent certificate delivered pursuant to this subsection (d)(ii),
as the case may be, and (y) certifying that all Uniform Commercial Code
financing statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations, including all refilings,
rerecordings and reregistrations, containing a description of the Collateral
have been filed of record in each governmental, municipal or other appropriate
office in each jurisdiction identified pursuant to clause (x) above
to the extent necessary to protect and perfect the security interests under the
Security Documents.


 


(e)                                  Notice
of Default or Litigation.  Promptly
after an Authorized Officer of any of Holdings, the Borrower or any of the
Subsidiaries obtains knowledge thereof, notice of (i) the occurrence of
any event that constitutes a Default or Event of Default, which notice shall
specify the nature thereof, the period of existence thereof and what action
Holdings or the Borrower proposes to take with respect thereto, and (ii) any
litigation or governmental proceeding pending against Holdings or the Borrower
or any of the Subsidiaries that could reasonably be expected to result in a
Material Adverse Effect.


 


(f)                                    Environmental
Matters.  Holdings and the Borrower
will promptly advise the Lenders in writing after obtaining knowledge of any
one or more of the following environmental matters, unless such environmental
matters would not, individually or when aggregated with all other such matters,
be reasonably expected to result in a Material Adverse Effect:


 


(i)                                     Any
pending or threatened Environmental Claim against Holdings or the Borrower or
any of the Subsidiaries or any Real Estate;


 


(ii)                                  Any
condition or occurrence on any Real Estate that (x) results in noncompliance by
Holdings or the Borrower or any of the Subsidiaries with any applicable Environmental
Law or (y) could reasonably be anticipated to form the basis of an
Environmental Claim against Holdings or the Borrower or any of the Subsidiaries
or any Real Estate;


 


(iii)                               Any
condition or occurrence on any Real Estate that could reasonably be anticipated
to cause such Real Estate to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Estate under any Environmental
Law; and


 


(iv)                              The
taking of any removal or remedial action in response to the actual or alleged
presence of any Hazardous Material on any Real Estate.


 


All such
notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
response thereto.  The term “Real Estate”
shall mean land, buildings and improvements owned or leased by Holdings or the
Borrower or any of the Subsidiaries, but excluding all operating fixtures and
equipment, whether or not incorporated into improvements.


 


62





















 


(g)                                 Other
Information.  Promptly upon filing
thereof, copies of any filings (including on Form 10-K, 10-Q or 8-K) or
registration statements with, and reports to, the SEC or any analogous
Government Authority in any relevant jurisdiction by Holdings, the Borrower or
any of the Subsidiaries (other than amendments to any registration statement
(to the extent such registration statement, in the form it becomes effective,
is delivered to the Lenders), exhibits to any registration statement and, if
applicable, any registration statements on Form S-8) and copies of all
financial statements, proxy statements, notices and reports that Holdings, the
Borrower or any of the Subsidiaries shall send to the holders of any publicly
issued debt of Holdings, the Borrower and/or any of the Subsidiaries (including
any Subordinated Notes (whether publicly issued or not)) in their capacity as
such holders (in each case to the extent not theretofore delivered to the
Lenders pursuant to this Agreement) and, with reasonable promptness, such other
information (financial or otherwise) as the Administrative Agent on its own
behalf or on behalf of any Lender may reasonably request in writing from time
to time.


 


(h)                                 Pro
Forma Adjustment Certificate.  Not
later than the consummation of the acquisition of any Acquired Entity or
Business by the Borrower or any Restricted Subsidiary for which there shall be
a Pro Forma Adjustment or not later than any date on which financial statements
are delivered with respect to any four-quarter period in which a Pro Forma Adjustment
is made as a result of the consummation of the acquisition of any Acquired
Entity or Business by the Borrower or any Restricted Subsidiary for which there
shall be a Pro Forma Adjustment, a certificate of an Authorized Officer of the
Borrower setting forth the amount of such Pro Forma Adjustment and, in
reasonable detail, the calculations and basis therefor.


 


(i)                                     Perfection
Certificate.  The Borrower shall
deliver to the Administrative Agent on the Closing Date a completed Perfection
Certificate dated the Closing Date and signed by an Authorized Officer and the
chief legal officer of the Borrower, together with all attachments contemplated
thereby.


 


9.2.                              Books,
Records and Inspections.  Each of
Holdings and the Borrower will, and will cause each of the Subsidiaries
to,  permit officers and designated
representatives of the Administrative Agent or the Required Lenders to visit
and inspect any of the properties or assets Holdings, the Borrower and any such
Subsidiary in whomsoever’s possession to the extent that it is within such
party’s control to permit such inspection, and to examine the books and records
of Holdings, the Borrower and any such Subsidiary and discuss the affairs,
finances and accounts of Holdings, the Borrower and of any such Subsidiary
with, and be advised as to the same by, its and their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent or the Required Lenders may desire.


 


9.3.                              Maintenance
of Insurance.  Each of Holdings and
the Borrower will, and will cause each of the Material Subsidiaries to, at all
times maintain in full force and effect, with insurance companies that the
Borrower believes (in the good faith judgment of the management of the
Borrower) are financially sound and responsible at the time the relevant
coverage is placed or renewed, insurance in at least such amounts and against
at least such risks (and with such risk retentions) as are usually insured
against in the same general area by companies engaged in the same or a similar
business; and will furnish to the Lenders, upon written request from the
Administrative Agent, information presented in reasonable detail as to the
insurance so carried.


 


9.4.                              Payment
of Taxes.  Each of Holdings and the
Borrower will pay and discharge, and will cause each of the Subsidiaries to pay
and discharge, all material taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any properties belonging
to it, prior to the date on which material penalties attach thereto, and all
lawful material claims that, if unpaid,


 


63





















 


could reasonably be expected to become a material Lien upon any
properties of the Borrower or any of the Restricted Subsidiaries, provided
that neither Holdings, the Borrower nor any of the Subsidiaries shall be required
to pay any such tax, assessment, charge, levy or claim that is being contested
in good faith and by proper proceedings if it has maintained adequate reserves
(in the good faith judgment of the management of the Borrower) with respect
thereto in accordance with GAAP.


 


9.5.                              Consolidated
Corporate Franchises.  Each of
Holdings and the Borrower will do, and will cause each Material Subsidiary to
do, or cause to be done, all things necessary to preserve and keep in full
force and effect its existence, corporate rights and authority, except to the
extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect; provided, however, that the Borrower and
its Subsidiaries may consummate any transaction permitted under Section 10.3,
10.4 or 10.5.


 


9.6.                              Compliance
with Statutes, Obligations, etc. 
Each of Holdings and the Borrower will, and will cause each Subsidiary
to, comply with all applicable laws, rules, regulations and orders, except to
the extent the failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


9.7.                              ERISA.  Promptly after Holdings, the Borrower or any
Subsidiary or any ERISA Affiliate knows or has reason to know of the occurrence
of any of the following events that, individually or in the aggregate
(including in the aggregate such events previously disclosed or exempt from disclosure
hereunder, to the extent the liability therefor remains outstanding), would be
reasonably likely to have a Material Adverse Effect, Holdings or the Borrower
will deliver to each of the Lenders a certificate of an Authorized Officer or
any other senior officer of the Borrower setting forth details as to such occurrence
and the action, if any, that Holdings, the Borrower, such Subsidiary or such
ERISA Affiliate is required or proposes to take, together with any notices
(required, proposed or otherwise) given to or filed with or by Holdings, the Borrower,
such Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant (other than
notices relating to an individual participant’s benefits) or the Plan
administrator with respect thereto: that a Reportable Event has occurred; that
an accumulated funding deficiency has been incurred or an application is to be
made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code with
respect to a Plan; that a Plan having an Unfunded Current Liability has been or
is to be terminated, reorganized, partitioned or declared insolvent under Title
IV of ERISA (including the giving of written notice thereof); that a Plan has
an Unfunded Current Liability that has or will result in a lien under ERISA or
the Code; that proceedings will be or have been instituted to terminate a Plan
having an Unfunded Current Liability (including the giving of written notice
thereof); that a proceeding has been instituted against the Borrower, a
Subsidiary or an ERISA Affiliate pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Plan; that the PBGC has notified Holdings,
the Borrower, any Subsidiary or any ERISA Affiliate of its intention to appoint
a trustee to administer any Plan; that Holdings, the Borrower, any Subsidiary
or any ERISA Affiliate has failed to make a required installment or other
payment pursuant to Section 412 of the Code with respect to a Plan; or
that Holdings, the Borrower, any Subsidiary or any ERISA Affiliate has incurred
or will incur (or has been notified in writing that it will incur) any
liability (including any contingent or secondary liability) to or on account of
a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code.


 


9.8.                              Good
Repair.  Each of Holdings and the
Borrower will, and will cause each of the Restricted Subsidiaries to, ensure
that its properties and equipment used or useful in its business in whomsoever’s
possession they may be to the extent that it is within the control of such
party to cause same, are kept in good repair, working order and condition,
normal wear and tear excepted, and that from time to time there are made in
such properties and equipment all needful and proper repairs, renewals,


 


64





















 


replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner customary for companies in similar
businesses and consistent with third party leases, except in each case to the
extent the failure to do so could not be reasonably expected to have a Material
Adverse Effect.


 


9.9.                              Transactions
with Affiliates.  Each of Holdings
and the Borrower will conduct, and cause each of the Restricted Subsidiaries to
conduct, all transactions with any of its Affiliates on terms that are
substantially as favorable to the Borrower or such Restricted Subsidiary as it
would obtain in a comparable arm’s-length transaction with a Person that is not
an Affiliate, provided that the foregoing restrictions shall not apply
to (a) the payment of customary annual fees to KKR and/or its Affiliates
and Bain and/or its Affiliates for management, consulting and financial
services rendered to Holdings, the Borrower and the Subsidiaries; (b) customary
investment banking fees paid to KKR and/or its Affiliates and Bain and/or its
Affiliates for services rendered to Holdings, the Borrower and the Subsidiaries
in connection with the divestitures, acquisitions, financings and other
transactions; (c) customary fees paid to members of the board of directors
of the Borrower and the Subsidiaries and (d) transactions permitted by Section 10.6.


 


9.10.                        End
of Fiscal Years; Fiscal Quarters. 
Holdings and the Borrower will, for financial reporting purposes, cause (a) each
of its, and each of its Subsidiaries’, fiscal years to end on December 31
of each year and (b) each of its, and each of its Subsidiaries’, fiscal
quarters to end on dates consistent with such fiscal year-end and Holdings and
the Borrower’s past practice; provided, however, that Holdings
and the Borrower may, upon written notice to the Administrative Agent, change
the financial reporting convention specified above to any other financial
reporting convention reasonably acceptable to the Administrative Agent, in
which case Holdings and the Borrower and the Administrative Agent will, and are
hereby authorized by the Lenders to, make any adjustments to this Agreement
that are necessary in order to reflect such change in financial reporting.


 


9.11.                        Additional
Guarantors, Grantors and Pledgors. 
Except as provided in Section 10.1(A)(j) or (k), each of Holdings
and the Borrower will cause (i) any direct or indirect Domestic Subsidiary
(other than any Unrestricted Subsidiary) formed or otherwise purchased or
acquired after the date hereof (including pursuant to a Permitted Acquisition),
(ii) any Subsidiary (other than any Unrestricted Subsidiary) that is not a
Domestic Subsidiary on the date hereof but subsequently becomes a Domestic
Subsidiary (other than any Unrestricted Subsidiary) and (iii) any inactive
Subsidiary listed on Schedule 1.1(d) (unless such Subsidiary
is designated an Unrestricted Subsidiary in accordance with terms of this
Agreement) which acquires any material assets or is otherwise no longer deemed
inactive, in each case to execute a supplement to each of the Guarantee, the
Security Agreement and the Pledge Agreement, substantially in the form of Annex
B or Annex 1, as applicable, to the respective agreement in order to become a
Guarantor under the Guarantee, a grantor under the Security Agreement and a
pledgor under the Pledge Agreement.


 


9.12.                        Pledges of Additional Stock
and Evidence of Indebtedness.


 


(a)                                  Except
as provided in Section 10.1(A)(j) or (k), the Borrower will deliver, and,
if applicable, will cause each Domestic Subsidiary to deliver, to the
Administrative Agent, for the benefit of the Secured Parties, (i) all
certificates representing the capital stock of each Domestic Subsidiary (other
than any Unrestricted Subsidiary) and each Foreign Subsidiary (other than an
Unrestricted Subsidiary or any capital stock representing in excess of 65% of
the issued and outstanding capital stock in any Foreign Subsidiary) held by the
Borrower or a Domestic Subsidiary, in each case, formed or otherwise purchased
or acquired after the date hereof, in each case together with a letter or schedule identifying
such certificates in reasonable detail and otherwise reasonably satisfactory to
the Administrative Agent, (ii) all evidences of Indebtedness in excess of
$5,000,000 received by the Borrower or any of the Domestic Subsidiaries (other
than any Unrestricted Subsidiary) in connection with any disposition of assets
pursuant to 


 


65





















 


Section 10.4(b), in each case together with a letter or schedule identifying
such evidences of Indebtedness in reasonable detail and otherwise reasonably
satisfactory to the Administrative Agent and (iii) any global promissory
notes executed after the date hereof evidencing Indebtedness of any of
Holdings, the Borrower and each Subsidiary that is owing to any of the Borrower
or any Domestic Subsidiary (other than any Unrestricted Subsidiary), in each
case together with a letter or schedule identifying such evidences of
Indebtedness in reasonable detail and otherwise reasonably satisfactory to the
Administrative Agent.


 


(b)                                 Holdings
will pledge to the Administrative Agent, for the benefit of the Lenders, all
capital stock of the Borrower acquired by it after the Closing Date (including
any capital stock issued in connection with (i) loans and advances made
pursuant to Section 10.5(c)(i) and (ii) dividends paid by the
Borrower solely in its capital stock pursuant to Section 10.6).


 


(c)                                  Holdings
and the Borrower agree that all Indebtedness in excess of $5,000,000 of any of
Holdings, the Borrower and each Subsidiary that is owing to any Credit Party to
the Pledge Agreement shall be evidenced by one or more global promissory notes.


 


9.13.                        Use
of Proceeds.  The Borrower will use
the Letters of Credit and the proceeds of all Loans for the purposes set forth
in the recitals to this Agreement.


 


9.14.                        Changes
in Business.  Holdings, the Borrower
and the Subsidiaries, taken as a whole, will not fundamentally and
substantively alter the character of their business, taken as a whole, from the
business conducted by Holdings, the Borrower and the Subsidiaries, taken as a
whole, on the Closing Date and other business activities incidental or related
to any of the foregoing.


 


9.15.                        Further
Assurances.


 


(a)                                  Each
of Holdings and the Borrower will, and will cause each other Credit Party to,
execute any and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements, fixture filings, mortgages, deeds of trust
and other documents), which may be required under any applicable law, or which
the Administrative Agent or the Required Lenders may reasonably request, in
order to grant, preserve, protect and perfect the validity and priority of the
security interests created or intended to be created by the Security Agreement,
the Pledge Agreement or any Mortgage, all at the expense of Holdings, the
Borrower and the Restricted Subsidiaries.


 


(b)                                 If
any assets (including any real estate or improvements thereto or any interest
therein) with a book value or fair market value in excess of $1,000,000 are
acquired by the Borrower or any other Credit Party after the Closing Date
(other than assets constituting Collateral under the Security Agreement that
become subject to the Lien of the Security Agreement upon acquisition thereof)
that are of the nature secured by the Security Agreement or any Mortgage, as
the case may be, the Borrower will notify the Administrative Agent and the
Lenders thereof, and, if requested by the Administrative Agent or the Required
Lenders, the Borrower will cause such assets to be subjected to a Lien securing
the Obligations and will take, and cause the other Credit Parties to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens consistent with the applicable
requirements of the Security Documents, including actions described in
paragraph (a) of this Section, all at the expense of the Credit
Parties.  Any Mortgage delivered to the
Administrative Agent in accordance with the preceding sentence shall be accompanied
by (x) a policy or policies of title insurance issued by a nationally
recognized title insurance company insuring the Lien of each Mortgage as a
valid first Lien on the Mortgaged Property described therein, free of any other
Liens except as expressly permitted by Section 10.2, together with such
endorsements, coinsurance and reinsurance as the Administrative


 


66





















 


Agent may reasonably request and (y) an opinion of local counsel to the
Borrower (or in the event a Subsidiary of the Borrower is the Mortgagor, to
such Subsidiary) substantially in the form of Exhibit G-2.


 


9.16.                        Ratings.  Holdings and the Borrower shall use their
commercially reasonable efforts to provide that the Indebtedness under this
Agreement remains rated by each of S&P and Moody’s at all times and to
promptly deliver to the Administrative Agent written notice of any change in
the rating thereof by S&P or Moody’s.


 


9.17.                        Post-Closing
Matters.  Holdings and the Borrower
shall execute and deliver the documents and complete the tasks set forth on Schedule 5.15,
in each case within the time limits specified on such schedule.


 


SECTION 10.                          Negative
Covenants


 


Each of
Holdings and the Borrower hereby covenants and agrees that on the Closing Date
and thereafter, until the Commitments, the Swingline Commitment and each Letter
of Credit have terminated and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder, are paid in full:


 


10.1.                        Limitation
on Indebtedness.  (A)  The
Borrower will not, and will not permit any of the Restricted Subsidiaries to,
create, incur, assume or suffer to exist any Indebtedness, except:


 


(a)                                  Indebtedness
arising under the Credit Documents;


 


(b)                                 Indebtedness
of (i) the Borrower that is advanced by any Restricted Subsidiary of the
Borrower and (ii) subject to compliance with Section 10.5, any
Restricted Subsidiary that is advanced by the Borrower or any other Restricted
Subsidiary of the Borrower; provided that all such Indebtedness of any
Credit Party owed to any Person that is not a Credit Party shall be
subordinated to the Obligations on customary terms;


 


(c)                                  Indebtedness
in respect of any bankers’ acceptance, letter of credit, warehouse receipt or
similar facilities entered into in the ordinary course of business;


 


(d)                                 except
as provided in clauses (j) and (k) below but subject to compliance with Section 10.5,
Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect
of Indebtedness of the Borrower or other Restricted Subsidiaries that is
permitted to be incurred under this Agreement and (ii) the Borrower in
respect of Indebtedness of the Restricted Subsidiaries that is permitted to be
incurred under this Agreement, provided that there shall be no Guarantee
(a) by a Restricted Foreign Subsidiary or another Restricted Subsidiary
that is not a Guarantor of any Indebtedness of the Borrower and (b) in
respect of the Permitted Subordinated Debt and Permitted Additional
Subordinated Notes and Permitted Senior Notes, unless such Guarantee is made by
a Guarantor and is unsecured and, if such Guarantee is of Permitted
Subordinated Debt or Permitted Additional Subordinated Debt, is subordinated to
the Obligations to the same extent as the applicable Permitted Subordinated
Debt or Permitted Additional Subordinated Notes, as the case may be;


 


(e)                                  Guarantee
Obligations incurred in the ordinary course of business in respect of
obligations of suppliers, customers, franchisees, lessors and licensees;


 


(f)                                    (i) Indebtedness
(including Indebtedness arising under Capital Leases) incurred within
270 days of the acquisition, construction or improvement of fixed or
capital assets to finance


 


67





















 


the
acquisition, construction or improvement of such fixed or capital assets or
otherwise incurred in respect of Capital Expenditures permitted by Section 10.11,
(ii) Indebtedness arising under Capital Leases entered into in connection
with Permitted Sale Leasebacks (provided that Section 5.2 shall be
complied with in respect of such Permitted Sale Leaseback) and (iii) Indebtedness
arising under Capital Leases, other than Capital Leases in effect on the date
hereof and Capital Leases entered into pursuant to subclauses (i) and
(ii) above, provided that the aggregate amount of Indebtedness incurred
pursuant to this clause (iii) shall not exceed $25,000,000 at any
time outstanding, and (iv) any refinancing, refunding, renewal or
extension of any Indebtedness specified in subclause (i), (ii) or (iii) above,
provided that the principal amount thereof is not increased above the
principal amount thereof outstanding immediately prior to such refinancing,
refunding, renewal or extension;


 


(g)                                 Indebtedness
outstanding on the date hereof and listed on Schedule 10.1 and any
refinancing, refunding, renewal or extension thereof, provided that (i) the
principal amount thereof is not increased above the principal amount thereof
outstanding immediately prior to such refinancing, refunding, renewal or
extension, except to the extent otherwise permitted hereunder and (ii) the
direct and contingent obligors with respect to such Indebtedness are not
changed;


 


(h)                                 Indebtedness
in respect of Hedge Agreements;


 


(i)                                     Indebtedness
in respect of Permitted Subordinated Debt;


 


(j)                                     (i) Indebtedness
of a Person or Indebtedness attaching to assets of a Person that, in either
case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that
are acquired by the Borrower or any Restricted Subsidiary, in each case after
the Closing Date as the result of a Permitted Acquisition, provided
that:


 


(w)                            such
Indebtedness existed at the time such Person became a Restricted Subsidiary or
at the time such assets were acquired and, in each case, was not created in
anticipation thereof,


 


(x)                                such
Indebtedness is not guaranteed in any respect by the Borrower or any Restricted
Subsidiary (other than any such person that so becomes a Restricted
Subsidiary),


 


(y)                              (A) the
capital stock of such Person is pledged to the Administrative Agent to the
extent required under Section 9.12 and (B) such Person executes a
supplement to each of the Guarantee, the Security Agreement and the Pledge
Agreement (or alternative guarantee and security arrangements in relation to
the Obligations) to the extent required under Sections 9.11 or 9.12, as
applicable, provided that the requirements of this subclause (y)
shall not apply to an aggregate amount of Indebtedness subject to this Section 10.1(A)(j)
at any time outstanding of up to (and including) the difference of (1) the
Guarantee and Collateral Exception Amount at such time minus (2) all
Indebtedness as to which the proviso to clause (k)(i)(y) below then applies,
and


 


(z)                                the Borrower
shall be in pro forma compliance with the financial covenants in Section 10.9
and 10.10 after giving effect to the incurrence of such Indebtedness and the
consummation of the related Permitted Acquisition,


 


68





















 


and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified in
subclause (i) above, provided that, except to the extent
otherwise permitted hereunder, (x) the principal amount of any such
Indebtedness is not increased above the principal amount thereof outstanding
immediately prior to such refinancing, refunding, renewal or extension and
(y) the direct and contingent obligors with respect to such Indebtedness
are not changed;


 


(k)                                  (i) Indebtedness
of the Borrower or any Restricted Subsidiary (including any Permitted
Additional Notes) incurred to finance a Permitted Acquisition, provided
that:


 


(x)                                except in the
case of Permitted Additional Notes, such Indebtedness is not guaranteed in any
respect by any Restricted Subsidiary (other than any Person acquired (the “acquired
Person”) as a result of such Permitted Acquisition or the Restricted
Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of
any Restricted Subsidiary, by the Borrower;


 


(y)                              (A) the
Borrower pledges the capital stock of such acquired Person to the
Administrative Agent to the extent required under Section 9.12 and (B) such
acquired Person executes a supplement to the Guarantee, the Security Agreement
and the Pledge Agreement (or alternative guarantee and security arrangements in
relation to the Obligations) to the extent required under Sections 9.11 or
9.12, as applicable, provided that the requirements of this
subclause (y) shall not apply to an aggregate amount of Indebtedness
subject to this Section 10.1(A)(k) at any time outstanding of up to (and
including) the difference of (1) the amount of the Guarantee and
Collateral Exception Amount at such time minus (2) all Indebtedness
as to which the proviso to clause (j)(i)(y) above then applies; and


 


(z)                                (A) such
Indebtedness matures after, and does not require any scheduled amortization or
other scheduled payments of principal prior to, the Term Loan Maturity Date, (B) such
Indebtedness has terms and conditions (other than interest rate, redemption
premiums and subordination terms), taken as a whole, that are not materially
less favorable to the Borrower as the terms of the Subordinated Notes (it being
understood that with respect to any senior Indebtedness, customary differences
from the Subordinated Indebtedness to reflect that such Indebtedness is senior
shall be permitted) and (C) the Borrower shall be in pro forma compliance
with the financial covenants in Section 10.9 and 10.10 after giving effect
to the incurrence of such Indebtedness and the consummation of the related
Permitted Acquisition;


 


and (ii) any refinancing, refunding,
renewal or extension of any Indebtedness specified in subclause (i) above,
provided that (w) the principal amount of any such Indebtedness is not
increased above the principal amount thereof outstanding immediately prior to
such refinancing, refunding, renewal or extension, (x) the direct and
contingent obligors with respect to such Indebtedness are not changed, except
to the extent otherwise permitted hereunder, and (y) any Permitted
Additional Notes may only be refinanced or replaced with Permitted Additional
Notes;


 


(l)                                     Indebtedness
of Restricted Foreign Subsidiaries in an aggregate amount at any time
outstanding not to exceed the dollar equivalent of (i) $20,000,000 (which
amount shall include the aggregate outstanding amount at any time of any
Indebtedness of Restricted Foreign Subsidiaries existing at the Closing Date)
minus (ii) the amount, if any, by which the aggregate


 


69





















 


amount of
Indebtedness incurred and outstanding at such time pursuant to
clause (n) below exceeds  $60,000,000;


 


(m)                               (i) Indebtedness
incurred in connection with any Permitted Sale Leaseback (provided that Section 5.2
shall be complied with in respect of such Permitted Sale Leaseback), and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified in
subclause (i) above, provided that, except to the extent
otherwise permitted hereunder, (x) the principal amount of any such
Indebtedness is not increased above the principal amount thereof outstanding
immediately prior to such refinancing, refunding, renewal or extension and
(y) the direct and contingent obligors with respect to such Indebtedness
are not changed;


 


(n)                                 (i) additional
Indebtedness, provided that the aggregate amount of Indebtedness
incurred and remaining outstanding pursuant to this clause (n) shall not
at any time exceed the sum of (x) $60,000,000 and (y) the amount, if
any, by which the aggregate amount of Indebtedness then outstanding under clause (l)
above is less than $20,000,000, and (ii) any refinancing, refunding,
renewal or extension of any Indebtedness specified in subclause (i) above;
provided, further, at no time shall Indebtedness of Restricted
Foreign Subsidiaries in an aggregate amount at any time outstanding pursuant to
subclause (l) above and this subclause (n) exceed the aggregate amount permitted
by subclause (l) above; and


 


(o)                                 (i) Indebtedness
in respect of Permitted Additional Notes to the extent that the Net Cash
Proceeds therefrom are, immediately after the receipt thereof, applied to the
prepayment of Term Loans in accordance with Section 5.2 and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified in
subclause (i) above with other Permitted Additional Notes, provided that (x) the direct and
contingent obligors with respect to such Indebtedness are not changed, except
to the extent otherwise permitted hereunder, and (y) the principal amount
of any such Indebtedness is not increased above the principal amount thereof
outstanding immediately prior to such refinancing, refunding, renewal or
extension.


 


(B)                                Holdings
will not create, incur, assume or suffer to exist any Indebtedness except (1) Qualified
PIK Securities and (2) its obligations under the Credit Documents.  Neither Holdings nor the Borrower will, nor
will they permit any Subsidiary to, issue any preferred stock or other
preferred equity interests other than, in the case of Holdings, Qualified PIK
Securities.


 


10.2.                        Limitation
on Liens.  The Borrower will not, and
will not permit any of the Restricted Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon any property or assets of any kind (real or
personal, tangible or intangible) of the Borrower or any Restricted Subsidiary,
whether now owned or hereafter acquired, except:


 


(a)                                  Liens
arising under the Credit Documents;


 


(b)                                 Permitted
Liens;


 


(c)                                  (i) Liens
securing Indebtedness permitted pursuant to Section 10.1(A)(f), provided
that such Liens attach at all times only to the assets so financed, and (ii) Liens
on the assets of Foreign Subsidiaries securing Indebtedness permitted pursuant
to Section 10.1(A)(l);


 


(d)                                 Liens
existing on the date hereof and listed on Schedule 10.2;


 


(e)                                  the
replacement, extension or renewal of any Lien permitted by clauses (a) through
(d) above and clauses (f) and (g) of this Section 10.2 upon
or in the same assets theretofore


 


70





















 


subject to
such Lien or the replacement, extension or renewal (without increase in the amount
or change in any direct or contingent obligor except to the extent otherwise
permitted hereunder) of the Indebtedness secured thereby;


 


(f)                                    Liens
existing on the assets of any Person that becomes a Restricted Subsidiary, or
existing on assets acquired, pursuant to a Permitted Acquisition to the extent
the Liens on such assets secure Indebtedness permitted by Section 10.1(A)(j),
provided that such Liens attach at all times only to the same assets
that such Liens attached to, and secure only the same Indebtedness that such
Liens secured, immediately prior to such Permitted Acquisition;


 


(g)                                 (i) Liens
placed upon the capital stock of any Restricted Subsidiary acquired pursuant to
a Permitted Acquisition to secure Indebtedness of the Borrower or any other Restricted
Subsidiary incurred pursuant to Section 10.1(A)(k) in connection with such
Permitted Acquisition and in an aggregate amount at any time outstanding not to
exceed the amount provided in the proviso to clause (y) of such Section 10.1(A)(k)
and (ii) Liens placed upon the assets of such Restricted Subsidiary to
secure a guarantee by such Restricted Subsidiary incurred pursuant to Section 10.1(A)(k)
in connection with such Permitted Acquisition of any such Indebtedness of the
Borrower or any other Restricted Subsidiary in an aggregate amount at any time
outstanding not to exceed the amount provided in the proviso to clause (y) of
such Section 10.1(A)(k); and


 


(h)                                 additional
Liens so long as the aggregate principal amount of the obligations so secured
does not exceed $20,000,000 at any time outstanding.


 


(B)                                Holdings
will not create, incur, assume or suffer to exist any Lien on any property or
asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect thereof, except (a) liens
of the nature set forth in clauses (a), (c) and (h) of the definition
of the term “Permitted Liens” and (b) Liens created under the Pledge
Agreement.


 


10.3.                        Limitation
on Fundamental Changes.  (A) Except
as expressly permitted by Section 10.4 or 10.5, each of Holdings and the
Borrower will not, and will not permit any of the Restricted Subsidiaries to,
enter into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, assign, transfer or otherwise dispose of, all or substantially all its
business units, assets or other properties, except that:


 


(a)                                  any
Subsidiary of the Borrower or any other Person may be merged or consolidated
with or into the Borrower, provided that (i) the Borrower shall be
the continuing or surviving corporation or the Person formed by or surviving
any such merger or consolidation (if other than the Borrower) shall be an
entity organized or existing under the laws of the United States, any state
thereof, the District of Columbia or any territory thereof (the Borrower or
such Person, as the case may be, being herein referred to as the “Successor
Borrower”), (ii) the Successor Borrower (if other than the Borrower)
shall expressly assume all the obligations of the Borrower under this Agreement
and the other Credit Documents pursuant to a supplement hereto or thereto in
form reasonably satisfactory to the Administrative Agent, (iii) no Default
or Event of Default would result from the consummation of such merger or
consolidation, (iv) the Successor Borrower shall be in compliance, on a
pro forma basis after giving effect to such merger or consolidation, with the
covenants set forth in Sections 10.9 and 10.10, as such covenants are
recomputed as at the last day of the most recently ended Test Period under such
Section as if such merger or consolidation had occurred on the first day
of such Test Period, (v) each Guarantor, unless it is the other party to
such merger or consolidation, shall have by a supplement to the Guarantee confirmed
that its Guarantee shall apply to the Successor Borrower’s obligations under
this Agreement, (vi) each Subsidiary grantor and each Subsidiary pledgor,
unless it is the other party to such


 


71





















 


merger or
consolidation, shall have by a supplement to the Security Agreement or the
Pledge Agreement, as applicable, confirmed that its obligations thereunder
shall apply to the Successor Borrower’s obligations under this Agreement, (vii) each
mortgagor of a Mortgaged Property, unless it is the other party to such merger
or consolidation, shall have by an amendment to or restatement of the
applicable Mortgage confirmed that its obligations thereunder shall apply to
the Successor Borrower’s obligations under this Agreement, and (viii) the
Borrower shall have delivered to the Administrative Agent an officer’s
certificate and an opinion of counsel, each stating that such merger or
consolidation and such supplement to this Agreement or any Security Document
comply with this Agreement; provided  further that if the
foregoing are satisfied, the Successor Borrower (if other than the Borrower)
will succeed to, and be substituted for, the Borrower under this Agreement;


 


(b)                                 any
Subsidiary of the Borrower or any other Person may be merged, amalgamated or
consolidated with or into any one or more Subsidiaries of the Borrower, provided
that (i) in the case of any merger, amalgamation or consolidation involving
one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be
the continuing or surviving corporation or (B) the Borrower shall take all
steps necessary to cause the Person formed by or surviving any such merger,
amalgamation or consolidation (if other than a Restricted Subsidiary) to become
a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or
consolidation involving one or more Guarantors, a Guarantor shall be the
continuing or surviving corporation or the Person formed by or surviving any
such merger, amalgamation or consolidation (if other than a Guarantor) shall
execute a supplement to the Guarantee Agreement, the Pledge Agreement and the
Security Agreement and any applicable Mortgage in form and substance reasonably
satisfactory to the Administrative Agent in order to become a Guarantor and
pledgor, mortgagor and grantor of Collateral for the benefit of the Secured
Parties, (iii) no Default or Event of Default would result from the
consummation of such merger, amalgamation or consolidation, (iv) the
Borrower shall be in compliance, on a pro forma basis after giving effect to
such merger, amalgamation or consolidation, with the covenants set forth in
Sections 10.9 and 10.10, as such covenants are recomputed as at the last
day of the most recently ended Test Period under such Section as if such
merger or consolidation had occurred on the first day of such Test Period, and (v) the
Borrower shall have delivered to the Administrative Agent an Officers’
Certificate stating that such merger, amalgamation or consolidation and such
supplements to any Security Document comply with this Agreement;


 


(c)                                  any
Restricted Subsidiary that is not a Guarantor may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise)
to the Borrower, a Guarantor, or any other Restricted Subsidiary of the
Borrower;


 


(d)                                 any
Guarantor may sell, lease, transfer or otherwise dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or any other
Guarantor; and


 


(e)                                  any
Restricted Subsidiary may liquidate or dissolve if (x) the Borrower determines
in good faith that such liquidation or dissolution is in the best interests of
the Borrower and is not materially disadvantageous to the Lenders and (y) to
the extent such Restricted Subsidiary is a Credit Party, any assets or business
not otherwise disposed of or transferred in accordance with Section 10.4
or 10.5, or, in the case of any such business, discontinued, shall be
transferred to, or otherwise owned or conducted by, another Credit Party after
giving effect to such liquidation or dissolution.


 


10.4.                        Limitation
on Sale of Assets.  Each of Holdings
and the Borrower will not, and will not permit any of the Restricted Subsidiaries
to, (i) convey, sell, lease, assign, transfer or otherwise


 


72





















 


dispose of any of its property, business or assets (including
receivables and leasehold interests), whether now owned or hereafter acquired
(other than any such sale, transfer, assignment or other disposition resulting
from any casualty or condemnation, of any assets of the Borrower or the
Restricted Subsidiaries) or (ii) sell to any Person (other than the Borrower
or a Guarantor) any shares owned by it or newly issued shares of any Restricted
Subsidiary’s capital stock, except that:


 


(a)                                  the
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise dispose
of used or surplus equipment, vehicles, inventory and other personal property
assets;


 


(b)                                 the
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise
dispose of other assets (other than accounts receivable) for fair value, provided
that 


 


(i)                                     any
consideration in excess of $5,000,000 received by the Borrower or any Guarantor
in connection with such sales, transfers and other dispositions of assets
pursuant to this clause (b) that is in the form of Indebtedness shall
be pledged to the Administrative Agent pursuant to Section 9.12, 


 


(ii)                                  with
respect to any such sale, transfer or disposition (or series of related sales,
transfers or dispositions) in an aggregate amount in excess of $5,000,000, (x)
the Borrower or a Restricted Subsidiary shall receive not less than 75% of such
consideration in the form of each or Permitted Investments and (y) the Borrower
shall be in compliance, on a pro forma basis after giving effect to such sale,
transfer or disposition, with the covenants set forth in Sections 10.9 and
10.10, as such covenants are recomputed as at the last day of the most recently
ended Test Period under such Sections as if such sale, transfer or disposition
had occurred on the first day of such Test Period, provided that for
purposes of subclause (x) of this clause (ii):


 


(A)                               any
liabilities (as shown in the Borrower’s or such Restricted Subsidiary’s most
recent balance sheet or in the footnotes thereto) of the Borrower or such
Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Obligations), which are assumed by the transferee of any
such assets and for which the Borrower and all of its Restricted Subsidiaries
have been validly released by all creditors in writing,


 


(B)                                 any
securities received by the Borrower or such Restricted Subsidiary from such
transferee that are converted by the Borrower or such Restricted Subsidiary
into cash (to the extent of the cash received) within 180 days following the
closing of such sale, transfer or disposal, and


 


(C)                                 any
Designated Non-cash Consideration received by the Borrower or such Restricted
Subsidiary in such sale, transfer or disposal having an aggregate fair market
value, taken together with all other Designated Non-cash Consideration received
pursuant to this clause (C) that is at the time outstanding, not to exceed
1.5% of Total Assets at the time of the receipt of such Designated Non-cash
Consideration, with the fair market value of each item of Designated Non-cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value, 


 


shall be deemed to be cash for purposes of
this provision and for no other purpose; and 


 


73





















 


(iii)                               after
giving effect to any such sale, transfer or disposition, no Default or Event of
Default shall have occurred and be continuing;


 


(c)                                  the
Borrower and the Restricted Subsidiaries may make sales of assets to the
Borrower or to any Restricted Subsidiary, provided that any such sales
by Borrower or a Guarantor to Restricted Subsidiaries that are not Guarantors
shall be for fair value and, assuming such transaction constitutes an
Investment, such transaction is permitted under Section 10.5(m);


 


(d)                                 any
Restricted Subsidiary may effect any transaction permitted by Section 10.3;
and


 


(e)                                  in
addition to selling or transferring accounts receivable pursuant to the other
provisions hereof, the Borrower and the Restricted Subsidiaries may (i) sell
or discount without recourse accounts receivable arising in the ordinary course
of business in connection with the compromise or collection thereof and (ii) sell
or transfer accounts receivable and related rights pursuant to customary
receivables financing facilities so long as, in the case of clauses (i) and
(ii), the Net Cash Proceeds thereof to the Borrower and its Restricted Subsidiaries
(except in the case of transactions permitted by Section 10.4(e)(i) to
the extent the Net Cash Proceeds of any such transaction do not exceed $10,000)
are promptly applied to the prepayment and/or commitment reductions as provided
for in Section 5.2.


 


10.5.                        Limitation
on Investments.  Holdings and the
Borrower will not, and will not permit any of the Restricted Subsidiaries to,
make any advance, loan, extensions of credit or capital contribution to,
guarantee any obligations of, purchase any stock, bonds, notes, debentures or
other securities of or any assets of, or purchase or otherwise acquire (in one
transaction or a series of transactions) all or substantially all of the
property and assets or business of another Person or assets constituting a business
unit, line of business or division of such Person, or make any other investment
in, any Person (each, an “Investment”), except:


 


(a)                                  extensions
of trade credit and asset purchases in the ordinary course of business;


 


(b)                                 Permitted
Investments;


 


(c)                                  loans
and advances to officers, directors and employees of Holdings or any of its
Subsidiaries (i) to finance the purchase of capital stock of Holdings (provided
that the amount of such loans and advances used to acquire such capital stock
shall be contributed by Holdings to the Borrower in cash as common equity) and (ii) for
additional purposes not contemplated by subclause (i) above in an
aggregate principal amount at any time outstanding with respect to this
clause (ii) not exceeding $10,000,000;


 


(d)                                 Investments
existing on the date hereof and listed on Schedule 10.5 and any
extensions, renewals or reinvestments thereof, so long as the aggregate amount
of all Investments pursuant to this clause (d) is not increased at
any time above the amount of such Investments existing on the date hereof;


 


(e)                                  Investments
in Hedge Agreements permitted by Section 10.1(A)(h);


 


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


 


74





















 


(g)                                 Investments
to the extent that payment for such Investments is made solely with capital
stock of Holdings;


 


(h)                                 Investments
constituting non-cash proceeds of sales, transfers and other dispositions of
assets to the extent permitted by Section 10.4(b);


 


(i)                                     Investments
in any Guarantor (other than Holdings) or the Borrower;


 


(j)                                     (A) Investments
constituting Permitted Acquisitions and (B) Investments in Restricted
Foreign Subsidiaries, provided that the aggregate amount of any such
Investments in clauses (A) and (B), as valued at the fair market value of
such Investment at the time each such Investment is made, made by the Borrower
or any Restricted Subsidiary in any Restricted Foreign Subsidiary, shall not
exceed the 20% of Total Assets at the time of such Investment plus an amount
equal to any repayments, interest, returns, profits, distributions, income and
similar amounts actually received in cash in respect of any such Investment
(which amount shall not exceed the amount of such Investment valued at the fair
market value of such Investment at the time such Investment was made);


 


(k)                                  Capital
Expenditures permitted under Section 10.11;


 


(l)                                     Investments
made to repurchase or retire common stock of Holdings owned by an employee
stock ownership plan or key employee stock ownership plan of Holdings or the Borrower;


 


(m)                               additional
Investments (including Investments in Minority Investments and Unrestricted
Subsidiaries, but excluding Investments in Restricted Foreign Subsidiaries), as
valued at the fair market value of such Investment at the time each such
Investment is made, in an aggregate amount at the time of such Investment not
in excess of the Available Amount at such time plus an amount equal to any
repayments, interest, returns, profits, distributions, income and similar
amounts actually received in cash in respect of any such Investment (which
amount shall not exceed the amount of such Investment valued at the fair market
value of such Investment at the time such Investment was made); and


 


(n)                                 Investments
permitted under Section 10.6.


 


10.6.                        Limitation
on Dividends.  Neither Holdings nor
the Borrower will declare or pay any dividends (other than, (a) in respect
of Holdings, dividends payable solely in its capital stock or rights, warrants
or options to purchase its capital stock and (b) in respect of the
Borrower, dividends payable solely in its capital stock) or return any capital
to its stockholders or make any other distribution, payment or delivery of
property or cash to its stockholders as such, or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for consideration, any shares of any
class of its capital stock or the capital stock of any direct or indirect
parent now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued with respect to any of its capital stock), or set
aside any funds for any of the foregoing purposes, or permit any of the
Restricted Subsidiaries to purchase or otherwise acquire for consideration
(other than in connection with an Investment permitted by Section 10.5)
any shares of any class of the capital stock of Holdings or the Borrower, now
or hereafter outstanding (or any options or warrants or stock appreciation
rights issued with respect to any of its capital stock) (all of the foregoing “Dividends”),
provided that, so long as no Default or Event of Default exists or would
exist after giving effect thereto, 


 


75





















 


(a)                                  Holdings
or the Borrower may redeem in whole or in part any of its capital stock (or pay
dividends with such proceeds) for another class of capital stock or rights to
acquire its capital stock or with proceeds from substantially concurrent equity
contributions or issuances of new shares of its capital stock, provided
that such other class of capital stock contains terms and provisions at least
as advantageous to the Lenders in all respects material to their interests as
those contained in the capital stock redeemed thereby;


 


(b)                                 Holdings
or the Borrower may pay Dividends to Parent to repurchase shares of its or
Parent’s capital stock (or any options or warrants or stock appreciation rights
issued with respect to any of its or Parent’s capital stock) held by officers
and employees of Parent, Holdings and its Subsidiaries, with the proceeds of
dividends from, seriatim, the Borrower and Holdings, as applicable, which shall
also be permitted, so long as such repurchase is pursuant to, and in accordance
with the terms of, management and/or employee stock plans, stock subscription
agreements or shareholder agreements;


 


(c)                                  the
Borrower and the Restricted Subsidiaries may make Investments permitted by Section 10.5;


 


(d)                                 Holdings
may declare and pay dividends on its capital stock, with the proceeds of
dividends from, seriatim, the Borrower, which shall also be permitted, provided
that (i) the aggregate amount of such dividends paid by the Borrower to
Holdings pursuant to this clause (d) and/or paid by Holdings pursuant to
this clause (d) shall not at any time exceed the Available Amount; and


 


(e)                                  the
Borrower and Holdings may declare and pay dividends and/or make distributions
on its capital stock, as applicable, the proceeds of which will be used by
Parent, Holdings or any direct or indirect parent solely to pay (i) (x)
franchise taxes (other than income taxes) and other fees, taxes and expenses
required to maintain their corporate existence or arising as a result of their
ownership of Holdings or the Borrower, respectively and (y) federal, state and
local income taxes, to the extent such income taxes are attributable to the
income of the Borrower and the Restricted Subsidiaries and, to the extent of
the amount actually received from the Unrestricted Subsidiaries, in amounts
required to pay such taxes to the extent attributable to the income of such
Unrestricted Subsidiaries; provided that in each case the amount of such
payments in any fiscal year does not exceed the amount that the Borrower, the
Restricted Subsidiaries and the Unrestricted Subsidiaries (to the extent
described above) would be required to pay in respect of federal, state and
local taxes for such fiscal year were the Borrower, the Restricted Subsidiaries
and the Unrestricted Subsidiaries (to the extent described above) to pay such
taxes separately from any such parent entity and (ii) administrative and
similar expenses related to its existence and ownership of the Borrower, as applicable,
provided that, in the case of this clause (ii), the amount of such
dividends does not exceed in any fiscal year the amount of such expenses
payable for such fiscal year (it being understood that such expenses shall in
no event exceed $1,000,000 in the aggregate per fiscal year).


 


10.7.                        Limitations on Debt Payments
and Amendments.


 


(a)                                  Holdings
and the Borrower will not prepay, repurchase or redeem or otherwise defease any
Permitted Subordinated Notes, any Permitted Additional Subordinated Notes or any
Permitted Senior Notes; provided, however, that so long as no
Default or Event of Default has occurred and is continuing, the Borrower may
prepay, repurchase or redeem Permitted Subordinated Notes, any Permitted
Additional Subordinated Notes or any Permitted Senior Notes (x) for an
aggregate price not in excess of the Available Amount at the time of such
prepayment, repurchase or redemption, or (y)(A) in the case of


 


76





















 


Subordinated Notes, with the proceeds of a substantially
contemporaneous issuance of Permitted Additional Subordinated Notes and (B) in
the case of Permitted Additional Notes, with the proceeds of a substantially
contemporaneous issuance of Permitted Additional Notes that is permitted by Section 10.1(A).


 


(b)                                 The
Borrower will not waive, amend, modify, terminate or release the Subordinated
Note Indenture, any Permitted Additional Subordinated Notes Indenture or any
Permitted Senior Notes Indenture to the extent that any such waiver, amendment,
modification, termination or release would be adverse to the Lenders in any
material respect.


 


10.8.                        Limitations
on Sale Leasebacks.  Holdings and the
Borrower will not, and will not permit any of the Restricted Subsidiaries to,
enter into or effect any Sale Leasebacks, other than Permitted Sale Leasebacks
otherwise permitted hereunder.


 


10.9.                        Consolidated
Net Debt to Consolidated EBITDA Ratio. 
The Borrower will not permit the Consolidated Net Debt to Consolidated
EBITDA Ratio for any Test Period ending on the last day of the fiscal quarter
set forth below to be greater than the ratio set forth below opposite such
period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  January 1, 2006 to March 31, 2006

  	
   

  	
  7.75 to 1.00

  	
   

  
	
  April 1, 2006 to June 30, 2006

  	
   

  	
  7.75 to 1.00

  	
   

  
	
  July 1, 2006 to September 30,
  2006

  	
   

  	
  7.75 to 1.00

  	
   

  
	
  October 1, 2006 to December 31,
  2006

  	
   

  	
  7.25 to 1.00

  	
   

  
	
  January 1, 2007 to March 31, 2007

  	
   

  	
  7.25 to 1.00

  	
   

  
	
  April 1, 2007 to June 30, 2007

  	
   

  	
  7.25 to 1.00

  	
   

  
	
  July 1, 2007 to September 30,
  2007

  	
   

  	
  7.25 to 1.00

  	
   

  
	
  October 1, 2007 to December 31,
  2007

  	
   

  	
  6.50 to 1.00

  	
   

  
	
  January 1, 2008 to March 31, 2008

  	
   

  	
  6.50 to 1.00

  	
   

  
	
  April 1, 2008 to June 30, 2008

  	
   

  	
  6.50 to 1.00

  	
   

  
	
  July 1, 2008 to September 30,
  2008

  	
   

  	
  6.50 to 1.00

  	
   

  
	
  October 1, 2008 to December 31,
  2008

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  January 1, 2009 to March 31, 2009

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  April 1, 2009 to June 30, 2009

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  July 1, 2009 to September 30,
  2009

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  October 1, 2009 to December 31,
  2009

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  January 1, 2010 to March 31, 2010

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  April 1, 2010 to June 30, 2010

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  July 1, 2010 to September 30,
  2010

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  October 1, 2010 to December 31,
  2010

  	
   

  	
  3.75 to 1.00

  	
   

  
	
  January 1, 2011 to March 31, 2011

  	
   

  	
  3.75 to 1.00

  	
   

  
	
  April 1, 2011 to June 30, 2011

  	
   

  	
  3.75 to 1.00

  	
   

  
	
  July 1, 2011 to September 30,
  2011

  	
   

  	
  3.75 to 1.00

  	
   

  
	
  October 1, 2011 and thereafter

  	
   

  	
  3.00 to 1.00

  	
   

  



 


10.10.                  Consolidated EBITDA to
Consolidated Interest Expense Ratio. 
The Borrower will not permit the Consolidated EBITDA to
Consolidated Interest Expense Ratio for any Test Period ending on the last day
of the fiscal quarter set forth below to be less than the ratio set forth below
opposite such period:


 


77





















 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  January 1, 2006 to March 31, 2006

  	
   

  	
  1.50 to 1.00

  	
   

  
	
  April 1, 2006 to June 30, 2006

  	
   

  	
  1.50 to 1.00

  	
   

  
	
  July 1, 2006 to September 30,
  2006

  	
   

  	
  1.50 to 1.00

  	
   

  
	
  October 1, 2006 to December 31,
  2006

  	
   

  	
  1.50 to 1.00

  	
   

  
	
  January 1, 2007 to March 31, 2007

  	
   

  	
  1.50 to 1.00

  	
   

  
	
  April 1, 2007 to June 30, 2007

  	
   

  	
  1.50 to 1.00

  	
   

  
	
  July 1, 2007 to September 30,
  2007

  	
   

  	
  1.50 to 1.00

  	
   

  
	
  October 1, 2007 to December 31,
  2007

  	
   

  	
  1.60 to 1.00

  	
   

  
	
  January 1, 2008 to March 31, 2008

  	
   

  	
  1.60 to 1.00

  	
   

  
	
  April 1, 2008 to June 30, 2008

  	
   

  	
  1.60 to 1.00

  	
   

  
	
  July 1, 2008 to September 30,
  2008

  	
   

  	
  1.60 to 1.00

  	
   

  
	
  October 1, 2008 to December 31,
  2008

  	
   

  	
  1.75 to 1.00

  	
   

  
	
  January 1, 2009 to March 31, 2009

  	
   

  	
  1.75 to 1.00

  	
   

  
	
  April 1, 2009 to June 30, 2009

  	
   

  	
  1.75 to 1.00

  	
   

  
	
  July 1, 2009 to September 30,
  2009

  	
   

  	
  1.75 to 1.00

  	
   

  
	
  October 1, 2000 to December 31,
  2009

  	
   

  	
  2.25 to 1.00

  	
   

  
	
  January 1, 2010 to March 31, 2010

  	
   

  	
  2.25 to 1.00

  	
   

  
	
  April 1, 2010 to June 30, 2010

  	
   

  	
  2.25 to 1.00

  	
   

  
	
  July 1, 2010 to September 30,
  2010

  	
   

  	
  2.25 to 1.00

  	
   

  
	
  October 1, 2010 to December 31,
  2010

  	
   

  	
  2.75 to 1.00

  	
   

  
	
  January 1, 2011 to March 31, 2011

  	
   

  	
  2.75 to 1.00

  	
   

  
	
  April 1, 2011 to June 30, 2011

  	
   

  	
  2.75 to 1.00

  	
   

  
	
  July 1, 2011 to September 30,
  2011

  	
   

  	
  2.75 to 1.00

  	
   

  
	
  October 1, 2011 and thereafter

  	
   

  	
  3.00 to 1.00

  	
   

  



 


10.11.                  Capital
Expenditures.  The Borrower will not,
and will not permit any of the Restricted Subsidiaries to, make any Capital
Expenditures (other than Permitted Acquisitions that constitute Capital
Expenditures) that would cause the aggregate amount of such Capital Expenditures
made by the Borrower and the Restricted Subsidiaries in any fiscal year of the
Borrower to exceed the greater of (x) the amount set forth in the table below
opposite such fiscal year (the “Scheduled Capital Expenditure Amount”)  and (y) commencing with the fiscal year
ending December 31, 2006, an amount equal to 6.00% multiplied by
Consolidated Net Sales for such fiscal year (such greater amount, the “Permitted
Capital Expenditure Amount”).


 


	
  Period

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Closing Date to December 31, 2006

  	
   

  	
  $

  	
  39,000,000

  	
   

  
	
  January 1, 2007 to December 31,
  2007

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  January 1, 2008 to December 31,
  2008

  	
   

  	
  $

  	
  42,500,000

  	
   

  
	
  January 1, 2009 to December 31,
  2009

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  January 1, 2010 to December 31,
  2010

  	
   

  	
  $

  	
  47,500,000

  	
   

  
	
  January 1, 2011 to December 31,
  2011

  	
   

  	
  $

  	
  52,500,000

  	
   

  
	
  January 1, 2012 to Maturity Date

  	
   

  	
  $

  	
  55,000,000

  	
   

  



 


To the extent
that Capital Expenditures (other than Permitted Acquisitions that constitute
Capital Expenditures) made by the Borrower and the Restricted Subsidiaries
during any fiscal year are less than the Permitted Capital Expenditure Amount
for such fiscal year, 100% of such unused amount (each such amount, a “carry-forward
amount”) may be carried forward to the immediately succeeding fiscal year
and utilized to make such Capital Expenditures in such succeeding fiscal year
in the event the amount set forth above for such succeeding fiscal year has
been used (it being understood and agreed that (a) no carry-forward amount
may be carried forward beyond the first two fiscal years immediately succeeding


 


78





















 


the fiscal
year in which it arose and (b) no portion of the carry-forward amount
available for any fiscal year may be used until the entire amount of the
Permitted Capital Expenditure Amount for such fiscal year (without giving
effect to such carry-forward amount) shall have been used to make Capital
Expenditures).


 


If Capital
Expenditures (other than Permitted Acquisitions that constitute Capital
Expenditures) made by the Borrower and the Restricted Subsidiaries during any
fiscal year exceed the sum of (x) the Permitted Capital Expenditure Amount for
such fiscal year plus (y) the sum of all carry-forward amounts available
in such fiscal year, if any, an amount equal to 25% of the Scheduled Capital
Expenditure Amount for the next succeeding fiscal year (each such amount, a “carry-back
amount”) may be carried back to the immediately prior fiscal year and
utilized to make such Capital Expenditures in such prior fiscal year (it being
understood and agreed that (a) no carry-back amount may be carried back
beyond the fiscal year immediately prior to the fiscal year of such Scheduled
Capital Expenditure Amount and (b) the portion of the carry-back amount
actually utilized in any fiscal year shall be deducted from the Permitted
Capital Expenditure Amount in the fiscal year from which it was carried back).


 


10.12.                  Limitation
on Activities of Holdings.  Holdings
will not engage in any business or activity other than (a) the ownership
of all the outstanding shares of capital stock of the Borrower, (b) maintaining
its corporate existence, (c) participating in tax, accounting and other
administrative matters as a member of the consolidated group of Holdings and
Borrower, (d) the performance of the Credit Documents to which it is a
party, (e) making any Dividend permitted by Section 10.6 or holding
any cash received in connection with Dividends made by the Borrower in
accordance with Section 10.6 pending application thereof by Holdings in
the manner contemplated by Section 10.6, (f) issuance of Qualified
PIK Securities, and (g) activities incidental to the businesses or
activities described in clauses (a) to (f) of this Section 10.12.  Holdings will not own or acquire any assets
(other than shares of capital stock of the Borrower, cash and Permitted
Investments) or incur any liabilities (other than liabilities under the Credit
Documents, liabilities in respect of Qualified PIK Securities and liabilities
imposed by law, including tax liabilities, and other liabilities incidental to
its existence and business and activities by this Agreement).


 


SECTION 11.                          Events
of Default


 


Upon the occurrence
of any of the following specified events (each an “Event of Default”):


 


11.1.                        Payments.  The Borrower shall (a) default in the
payment when due of any principal of the Loans or (b) default, and such default
shall continue for five or more days, in the payment when due of any interest
or stamping fees on the Loans or any Fees or any Unpaid Drawings or of any
other amounts owing hereunder or under any other Credit Document; or


 


11.2.                        Representations,
etc.  Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any Credit
Document or any certificate delivered or required to be delivered pursuant
hereto or thereto shall prove to be untrue in any material respect on the date
as of which made or deemed made; or


 


11.3.                        Covenants.  Any Credit Party shall (a) default in
the due performance or observance by it of any term, covenant or agreement
contained in Section 9.1(e), or Section 10 or (b) default in the
due performance or observance by it of any term, covenant or agreement (other
than those referred to in Section 11.1 or 11.2 or clause (a) of this Section 11.3)
contained in this Agreement, or any Security Document and (in the case of
clause (b) only) such default shall continue unremedied for a period of at
least 30 days after receipt of written notice by the Borrower from the
Administrative Agent or the Required Lenders; or


 


79





















 


11.4.                        Default
Under Other Agreements.  (a) The
Borrower or any of the Restricted Subsidiaries shall (i) default in any
payment with respect to any Indebtedness (other than the Obligations) in excess
of $15,000,000 in the aggregate, for the Borrower and such Subsidiaries, beyond
the period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created or (ii) default in the observance or
performance of any agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist (other than, with
respect to Indebtedness consisting of any Hedge Agreements, termination events
or equivalent events pursuant to the terms of such Hedge Agreements), the
effect of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness (or a trustee or agent on behalf of
such holder or holders) to cause, any such Indebtedness to become due prior to
its stated maturity; or (b) without limiting the provisions of
clause (a) above, any such Indebtedness shall be declared to be due
and payable, or required to be prepaid other than by a regularly scheduled
required prepayment or as a mandatory prepayment (and, with respect to Indebtedness
consisting of any Hedge Agreements, other than due to a termination event or
equivalent event pursuant to the terms of such Hedge Agreements), prior to the
stated maturity thereof; or


 


11.5.                        Bankruptcy,
etc.  Holdings, the Borrower or any
Specified Subsidiary shall commence a voluntary case, proceeding or action concerning
itself under (a) Title 11 of the United States Code entitled “Bankruptcy,”
or (b) in the case of any Foreign Subsidiary that is a Specified
Subsidiary, any domestic or foreign law relating to bankruptcy, insolvency
reorganization or relief of debtors legislation of its jurisdiction of
incorporation, in each case as now or hereafter in effect, or any successor
thereto (collectively, the “Bankruptcy Code”); or an involuntary case,
proceeding or action is commenced against any of Holdings, the Borrower or any
Specified Subsidiary and the petition is not controverted within 10 days after
commencement of the case, proceeding or action; or an involuntary case, proceeding
or action is commenced against any of Holdings, the Borrower or any Specified
Subsidiary and the petition is not dismissed within 60 days after commencement
of the case, proceeding or action; or a custodian (as defined in the Bankruptcy
Code) receiver, receiver manager, trustee or similar person is appointed for,
or takes charge of, all or substantially all of the property of any of Holdings,
the Borrower or any Specified Subsidiary; or any of Holdings, the Borrower or
any Specified Subsidiary commences any other proceeding or action under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to any of Holdings, the Borrower or
any Specified Subsidiary; or there is commenced against any of Holdings, the
Borrower or any Specified Subsidiary any such proceeding or action that remains
undismissed for a period of 60 days; or any of Holdings, the Borrower or any
Specified Subsidiary is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding or action is
entered; or any of Holdings, the Borrower or any Specified Subsidiary suffers
any appointment of any custodian receiver, receiver manager, trustee or the
like for it or any substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or any of Holdings, the Borrower or any
Specified Subsidiary makes a general assignment for the benefit of creditors;
or any corporate action is taken by any of Holdings, the Borrower or any
Specified Subsidiary for the purpose of effecting any of the foregoing; or


 


11.6.                        ERISA.  (a) Any Plan shall fail to satisfy the
minimum funding standard required for any plan year or part thereof or a waiver
of such standard or extension of any amortization period is sought or granted
under Section 412 of the Code; any Plan is or shall have been terminated
or is the subject of termination proceedings under ERISA (including the giving
of written notice thereof); an event shall have occurred or a condition shall
exist in either case entitling the PBGC to terminate any Plan or to appoint a
trustee to administer any Plan (including the giving of written notice
thereof); any Plan shall have an accumulated funding deficiency (whether or not
waived); any of Holdings, the Borrower or any Subsidiary or any ERISA Affiliate
has incurred or is likely to incur a liability to or on account of a Plan under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of
ERISA or Section 4971


 


80





















 


or 4975 of the Code (including the giving of written notice thereof);
or termination, withdrawal or noncompliance with applicable law or plan terms
with respect to Foreign Plans shall have occurred; (b) there could result
from any event or events set forth in clause (a) of this Section 11.6
the imposition of a lien, the granting of a security interest, or a liability,
or the reasonable likelihood of incurring a lien, security interest or
liability; and (c) such lien, security interest or liability will or would
be reasonably likely to have a Material Adverse Effect; or


 


11.7.                        Guarantee.  The Guarantees or any material provision
thereof shall cease to be in full force or effect or any Guarantor thereunder
or any Credit Party shall deny or disaffirm in writing any Guarantor’s
obligations under the Guarantee; or


 


11.8.                        Pledge
Agreement.  The Pledge Agreements or
any material provision thereof shall cease to be in full force or effect (other
than pursuant to the terms hereof or thereof or as a result of acts or
omissions of the Administrative Agent or any Lender) or any pledgor thereunder
or any Credit Party shall deny or disaffirm in writing any pledgor’s
obligations under the Pledge Agreement; or


 


11.9.                        Security
Agreement.  The Security Agreements
or any material provision thereof shall cease to be in full force or effect
(other than pursuant to the terms hereof or thereof or as a result of acts or
omissions of the Administrative Agent or any Lender) or any grantor thereunder
or any Credit Party shall deny or disaffirm in writing any grantor’s
obligations under the Security Agreement; or


 


11.10.                  Mortgages.  Any Mortgage or any material provision of any
Mortgage relating to any material portion of the Collateral shall cease to be
in full force or effect (other than pursuant to the terms hereof or thereof or
as a result of acts or omissions of the Administrative Agent or any Lender) or
any Mortgagor thereunder or any Credit Party shall deny or disaffirm in writing
any Mortgagor’s obligations under any Mortgage; or


 


11.11.                  Subordination.  The Obligations of the Borrower or the
obligations of Holdings or any Subsidiaries pursuant to the Guarantee, shall
cease to constitute senior indebtedness under the subordination provisions of
any document or instrument evidencing the Subordinated Notes or any other
permitted subordinated Indebtedness or such subordination provisions shall be
invalidated or otherwise cease to be legal, valid and binding obligations of
the parties thereto, enforceable in accordance with their terms; or


 


11.12.                  Judgments.  One or more judgments or decrees shall be
entered against Holdings, the Borrower or any of the Restricted Subsidiaries
involving a liability of $15,000,000 or more in the aggregate for all such
judgments and decrees Holdings, for the Borrower and the Restricted
Subsidiaries (to the extent not paid or fully covered by insurance provided by
a carrier not disputing coverage) and any such judgments or decrees shall not
have been satisfied, vacated, discharged or stayed or bonded pending appeal
within 60 days from the entry thereof; or


 


11.13.                  Change of Control.  A Change of Control shall occur;


 


then, and in
any such event, and at any time thereafter, if any Event of Default shall then
be continuing, the Administrative Agent shall, upon the written request of the
Required Lenders, by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of the Administrative Agent
or any Lender to enforce its claims against the Borrower, except as otherwise
specifically provided for in this Agreement (provided that, if an Event
of Default specified in Section 11.5 shall occur with respect to Holdings,
the Borrower or any Specified Subsidiary, the result that would occur upon the
giving of written notice by the Administrative Agent as specified in clauses
(i), (ii) and (iv) below shall occur automatically without the giving
of any such notice):  (i) declare
the Total Revolving Credit Commitment


 


81





















 


terminated,
whereupon the Commitments and Swingline Commitment, if any, of each Lender or
the Swingline Lender, as the case may be, shall forthwith terminate immediately
and any Fees theretofore accrued shall forthwith become due and payable without
any other notice of any kind; (ii) declare the principal of and any
accrued interest and fees in respect of all Loans and all Obligations owing
hereunder and thereunder to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; (iii) terminate any Letter
of Credit that may be terminated in accordance with its terms; and/or (iv) direct
the Borrower to pay (and the Borrower agrees that upon receipt of such notice,
or upon the occurrence of an Event of Default specified in Section 11.5
with respect to Holdings, the Borrower or any Specified Subsidiary, it will
pay) to the Administrative Agent, as applicable, at its Administrative Agent’s
Office such additional amounts of cash, to be held as security for the Borrower’s
respective reimbursement obligations for (x) Drawings that may subsequently
occur thereunder, equal to the aggregate Stated Amount of all Letters of Credit
issued and then outstanding.


 


11.14.                  Borrower’s Right to Cure.


 


(a)                                  Notwithstanding
anything to the contrary contained in Section 11, in the event of any
Event of Default under any covenant set forth in Section 10.9 and 10.10
and until the expiration of the tenth (10th) day after the date on which
financial statements are required to be delivered with respect to the
applicable fiscal quarter hereunder, Holdings may engage in an issuance of
Equity Interests that constitutes a Permitted Equity Issuance to any of the
Permitted Holders and contribute such amount to the common equity capital of
the Borrower and apply the amount of the Net Cash Proceeds thereof to increase
Consolidated EBITDA with respect to such applicable quarter; provided
that such Net Cash Proceeds (i) are actually received by the Borrower (including
through capital contribution of such Net Cash Proceeds by Holdings to the
Borrower) no later than ten (10) days after the date on which financial
statements are required to be delivered with respect to such fiscal quarter
hereunder, (ii) are not included in clause (iii) of the definition of
Available Amount and (iii) do not exceed the aggregate amount necessary to
cure such Event of Default under Section 10.9 and 10.10 for any applicable
period.  The parties hereby acknowledge
that this Section 11.14(a) may not be relied on for purposes of
calculating any financial ratios other than as applicable to Section 10.9
and 10.10 and shall not result in any adjustment to any amounts other than the
amount of the Consolidated EBITDA referred to in the immediately preceding
sentence.


 


(b)                                 In
each period of four fiscal quarters, there shall be at least two (2) 
consecutive fiscal quarters in which no cure set forth in Section 11.14(a) is
made.


 


SECTION 12.                          The
Administrative Agent


 


12.1.                        Appointment.  Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Credit Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Credit Documents, together with such other powers as are reasonably
incidental thereto.  Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Credit Document or otherwise exist
against the Administrative Agent.  The
Syndication Agent in its capacity as such, shall not have any obligations,
duties or responsibilities under this Agreement but shall be entitled to all
benefits of this Section 12.


 


82





















 


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


 


12.3.                        Exculpatory
Provisions.  Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (a) liable for any action lawfully taken or omitted
to be taken by it or such Person under or in connection with this Agreement or
any other Credit Document (except for its or such Person’s own gross negligence
or willful misconduct) or (b) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made by the
Borrower, any Guarantor, any other Credit Party or any officer thereof
contained in this Agreement or any other Credit Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or
for any failure of the Borrower any Guarantor or any other Credit Party to
perform its obligations hereunder or thereunder.  The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Credit Document, or to inspect the properties, books or
records of the Borrower.


 


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


 


12.5.                        Notice
of Default.  The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless the Administrative Agent has
received notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a “notice
of default”.  In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give notice
thereof to the Lenders.  The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders, provided
that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
or Event of Default as it shall deem advisable in the best interests of the
Lenders (except to the extent that this Agreement requires that such action be
taken only with the approval of the Required Lenders or each of the Lenders, as
applicable).


 


83





















 


12.6.                        Non-Reliance
on Administrative Agent and Other Lenders. 
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Borrower, any Guarantor or any other Credit Party, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Lender.  Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower, any Guarantor, and any other
Credit Party and made its own decision to make its Loans hereunder and enter
into this Agreement.  Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents, and to make such investigation
as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the Borrower,
any Guarantor and any other Credit Party. 
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, assets,
operations, properties, financial condition, prospects or creditworthiness of
the Borrower, any Guarantor or any other Credit Party that may come into the
possession of the Administrative Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.


 


12.7.                        Indemnification.  The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective portions of the Total Credit Exposure in
effect on the date on which indemnification is sought (or, if indemnification
is sought after the date upon which the Commitments shall have terminated and
the Loans shall have been paid in full, ratably in accordance with their
respective portions of the Total Credit Exposure in effect immediately prior to
such date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever that may at any time (including at any time following the
payment of the Loans) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of, the Commitments,
this Agreement, any of the other Credit Documents or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing, provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent’s gross negligence or willful
misconduct.  The agreements in this Section 12.7
shall survive the payment of the Loans and all other amounts payable hereunder.


 


12.8.                        Administrative
Agent in its Individual Capacity. 
The Administrative Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower,
any Guarantor and any other Credit Party as though the Administrative Agent
were not the Administrative Agent hereunder and under the other Credit
Documents.  With respect to the Loans
made by it, the Administrative Agent shall have the same rights and powers
under this Agreement and the other Credit Documents as any Lender and may
exercise the same as though it were not the Administrative Agent, and the terms
“Lender” and “Lenders” shall include the Administrative Agent in its individual
capacity.


 


12.9.                        Successor
Agent.  The Administrative Agent may
resign as Administrative Agent upon 20 days’ prior written notice to the
Lenders and the Borrower.  If the
Administrative Agent shall


 


84





















 


resign as Administrative Agent under this Agreement and the other
Credit Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrower (which approval shall not be unreasonably withheld),
whereupon such successor agent shall succeed to the rights, powers and duties
of the Administrative Agent, and the term “Administrative Agent” shall mean
such successor agent effective upon such appointment and approval, and the
former Administrative Agent’s rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans.  After any retiring
Administrative Agent’s resignation as Administrative Agent, the provisions of
this Section 12 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Credit Documents.


 


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


 


SECTION 13.                          Miscellaneous


 


13.1.                        Amendments
and Waivers.  Neither this Agreement
nor any other Credit Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this Section 13.1.  The Required Lenders may, or, with the
written consent of the Required Lenders, the Administrative Agent may, from
time to time, (a) enter into with the relevant Credit Party or Credit
Parties written amendments, supplements or modifications hereto and to the
other Credit Documents for the purpose of adding any provisions to this
Agreement or the other Credit Documents or changing in any manner the rights of
the Lenders or of the Credit Parties hereunder or thereunder or (b) waive,
on such terms and conditions as the Required Lenders or the Administrative
Agent, as the case may be, may specify in such instrument, any of the
requirements of this Agreement or the other Credit Documents or any Default or
Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall directly (i) forgive
any portion of any Loan or extend the final scheduled maturity date of any Loan
or reduce the stated rate, or forgive any portion, or extend the date for the
payment, of any interest or fee payable hereunder (other than as a result of
waiving the applicability of any post-default increase in interest rates), or
extend the final expiration date of any Lender’s Commitment or extend the final
expiration date of any Letter of Credit beyond the L/C Maturity Date, or
increase the aggregate amount of the Commitments of any Lender, or amend or
modify any provisions of Section 5.3(a) (with respect to the ratable
allocation of payments only) or Section 13.8(a), in each case without the
written consent of each Lender directly and adversely affected thereby, or (ii) amend,
modify or waive any provision of this Section 13.1 or reduce the
percentages specified in the definitions of the terms “Required Revolving
Credit Lenders”, “Required Lenders” and “Required Term Lenders” or consent to
the assignment or transfer by the Borrower of its rights and obligations under
any Credit Document to which it is a party (except as permitted pursuant to Section 10.3),
in each case without the written consent of each Lender directly and adversely
affected thereby, or (iii) amend, modify or waive any provision of Section 12
without the written consent of the then-current Administrative Agent, or (iv) amend,
modify or waive any provision of Section 3 without the written consent of
the Letter of Credit Issuer, or (v) amend, modify or waive any provisions
hereof relating to Swingline


 


85





















 


Loans without the written consent of the Swingline Lender, or (vi) change
any Revolving Credit Commitment to a Term Loan Commitment, or change any Term
Loan Commitment to a Revolving Credit Commitment, in each case without the
prior written consent of each Lender directly and adversely affected thereby,
or (vii) release all or substantially all of the Guarantors under the
Guarantee (except as expressly permitted by the Guarantee) or release all or
substantially all of the Collateral under the Pledge Agreement, the Security
Agreement and the Mortgages, in each case without the prior written consent of
each Lender, or (viii) amend Section 2.9(a) so as to permit
Interest Period intervals greater than six months without regard to
availability to Lenders, without the written consent of each Lender directly
and adversely affected thereby, or (ix) decrease any Repayment Amount,
extend any scheduled Repayment Date or decrease the amount or allocation of any
mandatory prepayment to be received by any Lender holding any Term Loans, in
each case without the written consent of the Required Term Lenders.  Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the affected Lenders
and shall be binding upon the Borrower, such Lenders, the Administrative Agent
and all future holders of the affected Loans. 
In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Credit Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing, it being
understood that no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon.


 


13.2.                        Notices.  All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered, or three days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth on Schedule 1.1(c) in
the case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto:


 


	
  The Borrower:

  	
   

  	
  Accellent Inc.

  200 West 7th Avenue

  Collegeville, PA  19426-0992

  Attention:  Stewart A. Fisher

  Fax:  (610) 409-2217

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Kohlberg Kravis Roberts & Co.,
  L.P.

  2800 Sand Hill Road, 

  Suite 200

  Menlo Park, CA  94025

  Attention:  James C. Momtazee

  Fax:  (650) 233-6584

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Simpson Thacher & Bartlett LLP

  425 Lexington Avenue

  New York, NY  10017-3954

  Attention:  James D. Cross, Esq.

  Fax:  (212) 455-2502

  



 


86





















 


	
  The Administrative

  Agent:

  	
   

  	
  JPMorgan Chase Bank, N.A.

  Agent Bank Services Group

  1111 Fannin, 10th Floor

  Houston, TX  77002

  Attention:  Katie Rose/Vikki Toler

  Fax:  (713) 750-2782

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMorgan Chase Bank, N.A.

  270 Park Avenue, 4th Floor

  New York, NY  10017

  Attention:  Dawn Lee Lum

  Fax:  (212) 270-3279/6637

  



 


provided
that any notice, request or demand to or upon the Administrative Agent or the
Lenders pursuant to Sections 2.3, 2.6, 2.9, 4.2 and 5.1 shall not be
effective until received.


 


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


 


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


 


13.5.                        Payment
of Expenses and Taxes.  The Borrower
agrees (a) to pay or reimburse the Agents for all their reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Credit Documents and any other documents prepared
in connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including the reasonable
fees, disbursements and other charges of counsel to the Agents, (b) to pay
or reimburse each Lender and the Administrative Agent for all its reasonable
and documented costs and expenses incurred in connection with the enforcement
or preservation of any rights under this Agreement, the other Credit Documents
and any such other documents, including the reasonable fees, disbursements and
other charges of counsel to each Lender and of counsel to the Administrative
Agent, (c) to pay, indemnify, and hold harmless each Lender and the
Administrative Agent from any and all recording and filing fees and any stamp,
excise, property or other similar taxes and any and all liabilities with
respect to, or resulting from any delay in paying such fees or taxes, that may
be payable or determined to be payable in connection with the registration,
execution, delivery or enforcement of, or consummation or administration of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this Agreement
(including any payments hereunder), the other Credit Documents and any such
other documents, and (d) to pay, indemnify, and hold harmless each Lender
and the Administrative Agent and their respective directors, officers,
employees, trustees and agents from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever, including
reasonable


 


87





















 


and documented fees, disbursements and other charges of counsel, with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Credit Documents and any such other documents,
including any of the foregoing relating to the violation of, noncompliance with
or liability under, any Environmental Law or any actual or alleged presence of
Hazardous Materials applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Real Estate (all the foregoing in this clause (d),
collectively, the “indemnified liabilities”), provided that the
Borrower shall have no obligation hereunder to the Administrative Agent or any
Lender nor any of their respective directors, officers, employees and agents with
respect to indemnified liabilities arising from (i) the gross negligence
or willful misconduct of the party to be indemnified to the extent determined
in a final, non-appealable judgment of a court of competent jurisdiction to
have resulted primarily form its gross negligence or willful misconduct or
material breach of its obligations hereunder or under any other Credit Document
or (ii) disputes among the Administrative Agent, the Lenders and/or their
transferees.  The agreements in this Section 13.5
shall survive repayment of the Loans and all other amounts payable hereunder.


 


13.6.                        Successors and Assigns;
Participations and Assignments.


 


(a)                                  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of the Letter of Credit Issuer that issues any Letter
of Credit), except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Lender
may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section.  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 (including any Affiliate of the Letter of Credit Issuer that
issues any Letter of Credit), Participants (to the extent provided in paragraph
(c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the Letter of Credit
Issuer and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.


 


(b)                                 (i) 
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans at the time owing to it) with the prior written consent (such
consent not be unreasonably withheld or delayed; it being understood that,
without limitation, the Borrower shall have the right to withhold its consent
to any assignment if, in order for such assignment to comply with applicable
law, the Borrower would be required to obtain the consent of, or make any
filing or registration with, any Governmental Authority) of:


 


(A)                          the Borrower, provided
that no consent of the Borrower shall be required for an assignment to a
Lender, an Affiliate of a Lender (unless increased costs would result therefrom
except if an Event of Default under Section 11.1 or Section 11.5 has
occurred and is continuing), an Approved Fund or, if an Event of Default under Section 11.1
or Section 11.5 has occurred and is continuing, any other assignee; and


 


(B)                            the Administrative Agent,
and, in the case of Revolving Credit Commitments or Revolving Credit Loans
only, the Swingline Lender and the applicable Letter of Credit Issuer, provided
that no consent of the Administrative Agent or the Swingline Lender shall be
required for an assignment of (1) any Commitment to an assignee that is a
Lender with a Commitment of the same Class immediately prior to giving
effect to such assignment or (2) any Term Loan to a Lender, an Affiliate
of a Lender or an Approved Fund.


 


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


 


88





















 


(A)                          except in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment
of the entire remaining amount of the assigning Lender’s Commitment or Loans of
any Class, the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1,000,000 or, in the case of a Term Loan
Commitment or Term Loan, $1,000,000 unless each of the Borrower and the
Administrative Agent otherwise consents, provided that no such consent
of the Borrower shall be required if an Event of Default under Section 11.1
or Section 11.5 has occurred and is continuing; provided  further
that contemporaneous assignments to a single assignee made by Affiliate Lenders
shall be aggregated for purposes of meeting the minimum assignment amount
requirements stated above;


 


(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, provided that this
clause shall not be construed to prohibit the assignment of a proportionate
part of all the assigning Lender’s rights and obligations in respect of one Class of
Commitments or Loans;


 


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


 


(D)                           the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire in a form approved by the Administrative Agent.


 


For the
purpose of this Section 13.6(b), the term “Approved Fund” has the
following meaning:


 


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


 


(iii)                               Subject
to acceptance and recording thereof pursuant to paragraph (b)(v) of
this Section, from and after the effective date specified in each Assignment
and Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.10, 2.11, 3.5, 5.4 and 13.5).  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 13.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.


 


(iv)                              The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at the Administrative Agent’s Office a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amount of
the Loans and any payment made by the Letter of Credit Issuer under any Letter
of Credit owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”).  Further, the
Register shall contain the name and address of the


 


89





















 


Administrative Agent and the lending office through which each acts
under this Agreement.  The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent, the
Letter of Credit Issuer and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower, the Letter of Credit Issuer and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


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


 


(c)                                  (i) 
Any Lender may, without the consent of the Borrower, the Administrative Agent,
the Letter of Credit Issuer or the Swingline Lender, sell participations to one
or more banks or other entities (each, a “Participant”) in all or a
portion of such Lender’s rights and obligations under this Agreement (including
all or a portion of its Commitments and the Loans owing to it), provided
that (A) such Lender’s obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent, the Letter of Credit Issuer and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement or any other Credit
Document, provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section 13.1
that affects such Participant.  Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.10, 2.11 and 5.4 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 13.8(b) as
though it were a Lender, provided such Participant agrees to be subject
to Section 13.8(a) as though it were a Lender.


 


(ii)                                  A Participant shall
not be entitled to receive any greater payment under Section 2.10
or 5.4 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of Section 5.4
unless the Borrower is notified of the participation sold to such Participant
and such Participant complies with Section 5.4(c) as though it were a
Lender.


 


(d)                                 Any
Lender may, without the consent of the Borrower or the Administrative Agent, at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank, and in
the case of any Lender that is an Approved Fund, any pledge or assignment to
any holders of obligations owed, or securities issued by such Lender, including
to any trustee for, or any other representative of, such holders, and this Section shall
not apply to any such pledge or assignment of a security interest, provided
that no such pledge or assignment of a security interest shall release a


 


90





















 


Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.  In order to facilitate such pledge or assignment,
the Borrower hereby agrees that, upon request of any Lender at any time and
from time to time after the Borrower has made its initial borrowing hereunder,
the Borrower shall provide to such Lender, at the Borrower’s own expense, a
promissory note, substantially in the form of Exhibit J-1 or J-2,
as the case may be, evidencing the Term Loans and Revolving Credit Loans and
Swingline Loans, respectively, owing to such Lender.


 


(e)                                  Subject
to Section 13.16, the Borrower authorizes each Lender to disclose to any
Participant, secured creditor of such Lender or assignee (each, a “Transferee”)
and any prospective Transferee any and all financial information in such Lender’s
possession concerning the Borrower and its Affiliates that has been delivered
to such Lender by or on behalf of the Borrower and its Affiliates pursuant to
this Agreement or which has been delivered to such Lender by or on behalf of
the Borrower and its Affiliates in connection with such Lender’s credit
evaluation of the Borrower and its Affiliates prior to becoming a party to this
Agreement.


 


13.7.                        Replacements of Lenders
under Certain Circumstances/Non-Consenting Lenders.


 


(a)                                  The
Borrower shall be permitted to replace any Lender that (i) requests reimbursement
for amounts owing pursuant to Section 2.10, 2.12, 3.5 or 5.4, (ii) is
affected in the manner described in Section 2.10(a)(iii) and as a
result thereof any of the actions described in such Section is required to
be taken or (iii) becomes a Defaulting Lender, with a replacement bank or
other financial institution, provided that (A) such replacement
does not conflict with any Requirement of Law, (B) no Event of Default
shall have occurred and be continuing at the time of such replacement, (C) the
Borrower shall repay (or the replacement bank or institution shall purchase, at
par) all Loans and other amounts (other than any disputed amounts), pursuant to
Section 2.10, 2.11, 2.12, 3.5 or 5.4, as the case may be) owing to such
replaced Lender prior to the date of replacement, (iv) the replacement
bank or institution, if not already a Lender, and the terms and conditions of
such replacement, shall be reasonably satisfactory to the Administrative Agent,
(D) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 13.6 (provided that the
Borrower shall be obligated to pay the registration and processing fee referred
to therein) and (E) any such replacement shall not be deemed to be a
waiver of any rights that the Borrower, the Administrative Agent or any other
Lender shall have against the replaced Lender.


 


(b)                                 If
any Lender (such Lender, a “Non-Consenting Lender”) has failed to
consent to a proposed amendment, waiver, discharge or termination which
pursuant to the terms of Section 13.1 requires the consent of all of the
Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then provided no Event of Default then exists, the Borrower
shall have the right (unless such Non-Consenting Lender grants such consent) to
replace such Non-Consenting Lender by requiring such Non-Consenting Lender to
assign its Loans, and its Commitments hereunder to one or more assignees
reasonably acceptable to the Administrative Agent, provided that:  (a) all Obligations of the Borrower
owing to such Non-Consenting Lender being replaced shall be paid in full to
such Non-Consenting Lender concurrently with such assignment, and (b) the
replacement Lender shall purchase the foregoing by paying to such
Non-Consenting Lender a price equal to the principal amount thereof plus
accrued and unpaid interest thereon.  In
connection with any such assignment, the Borrower, Administrative Agent, such
Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 13.6.


 


13.8.                        Adjustments; Set-off.


 


(a)                                  If
any Lender (a “benefited Lender”) shall at any time receive any payment
of all or part of its Loans, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or


 


91





















 


involuntarily, by set-off, pursuant to events or proceedings of the
nature referred to in Section 11.5, or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender’s Loans, or interest thereon, such benefited
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender’s Loan, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefited Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.


 


(b)                                 After
the occurrence and during the continuance of an Event of Default, in addition
to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, upon any
amount becoming due and payable by the Borrower hereunder (whether at the
stated maturity, by acceleration or otherwise) to set-off and appropriate and
apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits, indebtedness
or claims, in any currency, in each case whether direct or indirect, absolute
or contingent, matured or unmatured, at any time held or owing by such Lender
or any branch or agency thereof to or for the credit or the account of the
Borrower.  Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such set-off and application.


 


13.9.                        Counterparts.  This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by facsimile or other electronic transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.  A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.


 


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


 


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


 


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


 


13.13.                  Submission to Jurisdiction;
Waivers.  The Borrower hereby
irrevocably and unconditionally:


 


(a)                                  submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Credit Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of


 


92





















 


the State of
New York, the courts of the United States of America for the Southern
District of New York and appellate courts from any thereof;


 


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


 


(c)                                  agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Borrower at its address set
forth in Section 13.2 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto;


 


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


 


(e)                                  waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 13.13
any special, exemplary, punitive or consequential damages.


 


13.14.                  Acknowledgments.  The Borrower and hereby acknowledges that:


 


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


 


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


 


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


 


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


 


13.16.                  Confidentiality.  The Administrative Agent and each Lender
shall hold all non-public information furnished by or on behalf of the Borrower
in connection with such Lender’s evaluation of whether to become a Lender
hereunder or obtained by such Lender or the Administrative Agent pursuant to
the requirements of this Agreement (“Confidential Information”),
confidential in accordance with its customary procedure for handling
confidential information of this nature and (in the case of a Lender that is a
bank) in accordance with safe and sound banking practices and in any event may
make disclosure as required or requested by any governmental agency or
representative thereof or pursuant to legal process or to such Lender’s or the
Administrative Agent’s attorneys, professional advisors or independent auditors
or Affiliates, provided that unless specifically prohibited by applicable
law or court order, each Lender and the Administrative Agent shall notify the
Borrower of any request by any governmental


 


93





















 


agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender by
such governmental agency) for disclosure of any such non-public information
prior to disclosure of such information, and provided  further
that in no event shall any Lender or the Administrative Agent be obligated or
required to return any materials furnished by the Borrower or any Subsidiary of
the Borrower.  Each Lender and the
Administrative Agent agrees that it will not provide to prospective Transferees
or to prospective direct or indirect contractual counterparties in swap
agreements to be entered into in connection with Loans made hereunder any of
the Confidential Information unless such Person is advises of and agrees to be
bound by the provisions of this Section 13.16.


 


13.17.                  USA
PATRIOT Act.  Each Lender hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot
Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower
and other information that will allow such Lender to identify the Borrower in accordance
with the Patriot Act.


 


13.18.                  Electronic Communications.


 


(a)                                  (i) 
Notices and other communications to the Lenders and the Letter of Credit Issuer
hereunder may (subject to Section 13.2(b)) be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to
notices to any Lender or the Letter of Credit Issuer pursuant to Section 2
if such Lender or the Letter of Credit Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Section by
electronic communication.  The Administrative
Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it (including as set forth in Section 13.2(b)); provided that approval of such procedures may
be limited to particular notices or communications.


 


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


 


(b)                                 Posting.  (i)  Each Credit Party hereby agrees
that it may provide to the Administrative Agent all information, documents and
other materials that it is obligated to furnish to the Administrative Agent
pursuant to this Agreement and any other Credit Document, including all
notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such
communication that (A) relates to a request for a new, or a conversion of
an existing, Loan or other extension of credit (including any election of an
interest rate or interest period relating thereto), (B) relates to the
payment of any principal or other amount due under this Agreement prior to the
scheduled date therefor, (C) provides notice of any Default under this
Agreement or (D) is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any borrowing or other
extension of credit hereunder (all such non-excluded communications,
collectively, the “Communications”), by transmitting the Communications
in an electronic/soft medium in a format reasonably acceptable to the
Administrative Agent at dawn.leelum@jpmorgan.com and/or
rhonda.x.elhosseiny@jpmorgan.com or at such other e-mail address(es) provided
to the Borrower from


 


94





















 


time to time or in such other form, including hard copy delivery
thereof, as specified in Section 13.2 of this Agreement or as otherwise
specified in this Agreement or any other Credit Document.  Nothing in this Section 13.18 shall
prejudice the right of the Agents, any Lender or any Credit Party to give any notice
or other communication pursuant to this Agreement or any other Credit Document
in any other manner specified in this Agreement or any other Credit Document.


 


(ii)                                  To
the extent consented to by the Administrative Agent in writing from time to
time, Administrative Agent agrees that receipt of the Communications by the
Administrative Agent at its e-mail address(es) set forth above shall constitute
effective delivery of the Communications to the Administrative Agent for
purposes of the Credit Documents; provided that the Borrower shall also
deliver to the Administrative Agent an executed original of each certificate required
to be delivered pursuant to Section 9.1(d) hereunder. 


 


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


 


95





















 


IN WITNESS
WHEREOF, each of the parties hereto has caused a counterpart of this Agreement
to be duly executed and delivered as of the date first above written.


 


	
   

  	
  ACCELLENT
  MERGER SUB INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James C. Momtazee

  	
   

  
	
   

  	
   

  	
  Name:  James C. Momtazee

  	
   

  
	
   

  	
   

  	
  Title:  Vice President, Treasurer
  and Assistant

  Secretary

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ACCELLENT
  INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stewart A. Fisher

  	
   

  
	
   

  	
   

  	
  Name:  Stewart A. Fisher

  	
   

  
	
   

  	
   

  	
  Title: Chief Financial Officer, Executive Vice

  President, Treasurer and Secretary

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ACCELLENT
  ACQUISITION CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James C. Momtazee

  	
   

  
	
   

  	
   

  	
  Name:  James C. Momtazee

  	
   

  
	
   

  	
   

  	
  Title:  Treasurer and Assistant
  Secretary

  	
   

  



 


[Credit Agreement Signature
Page]


 





















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as Administrative

  
	
   

  	
  Agent and as
  a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce Borden

  	
   

  
	
   

  	
   

  	
  Name:  Bruce Borden

  	
   

  
	
   

  	
   

  	
  Title:  Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  J.P. MORGAN
  SECURITIES INC., as Joint Lead

  	
   

  
	
   

  	
  Arranger and
  Joint Bookrunner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel M. Hochstadt

  	
   

  
	
   

  	
   

  	
  Name:  Daniel M. Hochstadt

  	
   

  
	
   

  	
   

  	
  Title:  Vice President

  	
   

  



 


[Credit Agreement Signature
Page]


 


2





















 


	
   

  	
  CREDIT
  SUISSE, acting through its Cayman Islands

  Branch, as Joint Lead Arranger and Joint Bookrunner,

  Syndication Agent and as a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bill O’Daly

  	
   

  
	
   

  	
   

  	
  Name:  Bill O’Daly

  	
   

  
	
   

  	
   

  	
  Title:  Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Rianka Mohan

  	
   

  
	
   

  	
   

  	
  Name:  Rianka Mohan

  	
   

  
	
   

  	
   

  	
  Title:  Associate

  	
   

  
					



 


[Credit Agreement Signature
Page]


 


3





















 


	
   

  	
  LEHMAN
  COMMERCIAL PAPER INC., as

  	
   

  
	
   

  	
  Documentation
  Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Craig Malloy

  	
   

  
	
   

  	
   

  	
  Name:  Craig Malloy

  	
   

  
	
   

  	
   

  	
  Title:  Authorized Signatory

  	
   

  
					



 


[Credit Agreement Signature
Page]


 


4





















 


	
   

  	
  LEHMAN
  COMMERCIAL PAPER INC., as

  	
   

  
	
   

  	
  a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Craig Malloy

  	
   

  
	
   

  	
   

  	
  Name:  Craig Malloy

  	
   

  
	
   

  	
   

  	
  Title:  Authorized Signatory

  	
   

  
					



 


[Credit Agreement Signature
Page]


 


5





















 


	
   

  	
  THE
  NORINCHUKIN TRUST & BANKING CO.,

  LTD. ACTING AS TRUSTEE FOR TRUST

  	
   

  
	
   

  	
  ACCOUNT NO.
  430000-86, as a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Seiji Kuramoto

  	
   

  
	
   

  	
   

  	
  Name:  Seiji Kuramoto

  	
   

  
	
   

  	
   

  	
  Title:  Chief Manager

  	
   

  
					



 


[Credit Agreement Signature
Page]


 


6





















 


	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION, as

  
	
   

  	
  a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David R. Campbell

  	
   

  
	
   

  	
   

  	
  Name:  David R. Campbell

  	
   

  
	
   

  	
   

  	
  Title:  Its Duly Authorized Signatory

  	
   

  
					



 


[Credit Agreement Signature
Page]


 


7





















 


	
   

  	
  Firstrust
  Bank, as a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kent D. Nelson

  	
   

  
	
   

  	
   

  	
  Name:  Kent D. Nelson

  	
   

  
	
   

  	
   

  	
  Title:  Senior Vice President

  	
   

  
					



 


[Credit Agreement Signature
Page]


 


8





















 


	
   

  	
  Bear Stearns
  Corporate Lending Inc., as

  	
   

  
	
   

  	
  a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Victor Bulzacchelli

  	
   

  
	
   

  	
   

  	
  Name:  Victor Bulzacchelli

  	
   

  
	
   

  	
   

  	
  Title:  Vice President

  	
   

  
					



 


[Credit Agreement Signature
Page]


 


9





















 


	
   

  	
  NATIONAL
  CITY BANK, as a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Frank Byrne

  	
   

  
	
   

  	
   

  	
  Name:  Frank Byrne

  	
   

  
	
   

  	
   

  	
  Title:  AVP

  	
   

  
					



 


[Credit Agreement Signature Page]


 


10





















 


	
   

  	
  MIZUHO
  CORPORATE BANK, LTD., as

  	
   

  
	
   

  	
  a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James Fayen

  	
   

  
	
   

  	
   

  	
  Name:  James Fayen

  	
   

  
	
   

  	
   

  	
  Title:  Deputy General Manager

  	
   

  
					



 


[Credit Agreement Signature
Page]


 


11





















 


	
   

  	
  The Governor
  and Company of the Bank of Ireland, as

  	
   

  
	
   

  	
  a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark McGoldrick

  	
   

  
	
   

  	
   

  	
  Name:  Mark McGoldrick

  	
   

  
	
   

  	
   

  	
  Title:  Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Cameron

  	
   

  
	
   

  	
   

  	
  Name:  Richard Cameron

  	
   

  
	
   

  	
   

  	
  Title:  Authorized Signatory

  	
   

  
					



 


[Credit Agreement Signature
Page]


 


12