Exhibit 10.1



 






Exhibit 10.1




EXECUTION COPY




CREDIT AND GUARANTY AGREEMENT




dated as of December 5, 2005




among




DAY INTERNATIONAL, INC.,

as Borrower,




DAY INTERNATIONAL GROUP, INC.




CERTAIN SUBSIDIARIES OF DAY INTERNATIONAL, INC.,

as Guarantors,




VARIOUS LENDERS,




GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Sole Lead Arranger and Sole Syndication Agent,




GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Administrative Agent and Collateral Agent,




and




JPMORGAN CHASE BANK, N.A.

PNC BANK, NATIONAL ASSOCIATION,

as Joint Documentation Agents




 






$300,000,000 Senior Secured First Lien Credit Facilities




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	SECTION 1. DEFINITIONS AND INTERPRETATION
	 	 	2	 
	1.1. Definitions
	 	 	2	 
	1.2. Accounting Terms
	 	 	32	 
	1.3. Interpretation, etc.
	 	 	32	 
	 
	 	 	 	 
	SECTION 2. LOANS AND LETTERS OF CREDIT
	 	 	32	 
	2.1. First Lien Term Loans
	 	 	32	 
	2.2. Revolving Loans
	 	 	33	 
	2.3. Swing Line Loans
	 	 	34	 
	2.4. Issuance of Letters of Credit and Purchase of Participations Therein
	 	 	37	 
	2.5. Pro Rata Shares; Availability of Funds
	 	 	40	 
	2.6. Use of Proceeds
	 	 	41	 
	2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes.
	 	 	41	 
	2.8. Interest on Loans
	 	 	42	 
	2.9. Conversion/Continuation
	 	 	44	 
	2.10. Default Interest
	 	 	45	 
	2.11. Fees
	 	 	45	 
	2.12. Scheduled Payments/Commitment Reductions
	 	 	46	 
	2.13. Voluntary Prepayments/Commitment Reductions
	 	 	46	 
	2.14. Mandatory Prepayments/Commitment Reductions
	 	 	48	 
	2.15. Application of Prepayments/Reductions
	 	 	49	 
	2.16. General Provisions Regarding Payments
	 	 	51	 
	2.17. Ratable Sharing
	 	 	52	 
	2.18. Making or Maintaining Eurocurrency Rate Loans
	 	 	53	 
	2.19. Increased Costs; Capital Adequacy
	 	 	54	 
	2.20. Taxes; Withholding, etc.
	 	 	56	 
	2.21. Obligation to Mitigate
	 	 	58	 
	2.22. Defaulting Lenders
	 	 	59	 
	2.23. Removal or Replacement of a Lender
	 	 	59	 
	2.24. Incremental Facilities
	 	 	60	 
	 
	 	 	 	 
	SECTION 3. CONDITIONS PRECEDENT
	 	 	62	 
	3.1. Closing Date
	 	 	62	 
	3.2. Conditions to Each Credit Extension
	 	 	66	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	68	 
	4.1. Organization; Requisite Power and Authority; Qualification.
	 	 	68	 
	4.2. Capital Stock and Ownership
	 	 	68	 
	4.3. Due Authorization
	 	 	68	 
	4.4. No Conflict
	 	 	68	 
	4.5. Governmental Consents
	 	 	69	 
	4.6. Binding Obligation
	 	 	69	 
	4.7. Historical Financial Statements
	 	 	69	 
	4.8. Projections
	 	 	69	 






ii









 






	 	 	 	 	 
	 	 	Page
	4.9. No Material Adverse Change
	 	 	69	 
	4.10. Adverse Proceedings, etc.
	 	 	69	 
	4.11. Payment of Taxes.
	 	 	70	 
	4.12. Properties
	 	 	70	 
	4.13. Environmental Matters
	 	 	70	 
	4.14. No Defaults
	 	 	71	 
	4.15. Material Contracts
	 	 	71	 
	4.16. Governmental Regulation
	 	 	71	 
	4.17. Margin Stock
	 	 	71	 
	4.18. Employee Matters
	 	 	72	 
	4.19. Employee Benefit Plans
	 	 	72	 
	4.20. Certain Fees
	 	 	73	 
	4.21. Solvency
	 	 	73	 
	4.22. Compliance with Statutes, etc.
	 	 	73	 
	4.23. Disclosure
	 	 	73	 
	4.24. Patriot Act
	 	 	73	 
	 
	 	 	 	 
	SECTION 5. AFFIRMATIVE COVENANTS
	 	 	74	 
	5.1. Financial Statements and Other Reports
	 	 	74	 
	5.2. Existence
	 	 	78	 
	5.3. Payment of Taxes and Claims
	 	 	78	 
	5.4. Maintenance of Properties
	 	 	78	 
	5.5. Insurance
	 	 	78	 
	5.6. Inspections
	 	 	79	 
	5.7. Lenders Meetings
	 	 	79	 
	5.8. Compliance with Laws
	 	 	79	 
	5.9. Environmental
	 	 	79	 
	5.10. Subsidiaries
	 	 	81	 
	5.11. Additional Material Real Estate Assets
	 	 	81	 
	5.12. Interest Rate Protection
	 	 	82	 
	5.13. Further Assurances
	 	 	82	 
	5.14. Miscellaneous Business Covenants
	 	 	82	 
	 
	 	 	 	 
	SECTION 6. NEGATIVE COVENANTS
	 	 	83	 
	6.1. Indebtedness
	 	 	83	 
	6.2. Liens
	 	 	85	 
	6.3. No Further Negative Pledges
	 	 	87	 
	6.4. Restricted Junior Payments
	 	 	87	 
	6.5. Restrictions on Subsidiary Distributions
	 	 	88	 
	6.6. Investments
	 	 	88	 
	6.7. Financial Covenants
	 	 	90	 
	6.8. Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	92	 
	6.9. Disposal of Subsidiary Interests
	 	 	93	 
	6.10. Sales and Lease-Backs
	 	 	93	 
	6.11. Transactions with Shareholders and Affiliates.
	 	 	93	 
	6.12. Conduct of Business
	 	 	94	 
	6.13. Restrictions Affecting Holdings
	 	 	94	 






iii









 






	 	 	 	 	 
	 	 	Page
	6.14. Limitation on Voluntary Payments and Amendments or Waivers of the
Second Lien Term Facility 
	 	 	95	 
	6.15. Fiscal Year
	 	 	95	 
	 
	 	 	 	 
	SECTION 7. GUARANTY
	 	 	95	 
	7.1. Guaranty of the Obligations
	 	 	95	 
	7.2. Contribution by Guarantors
	 	 	95	 
	7.3. Payment by Guarantors
	 	 	96	 
	7.4. Liability of Guarantors Absolute
	 	 	96	 
	7.5. Waivers by Guarantors
	 	 	98	 
	7.6. Guarantors’ Rights of Subrogation, Contribution, etc.
	 	 	99	 
	7.7. Subordination of Other Obligations
	 	 	99	 
	7.8. Continuing Guaranty
	 	 	99	 
	7.9. Authority of Guarantors or the Company
	 	 	100	 
	7.10. Financial Condition of the Company
	 	 	100	 
	7.11. Bankruptcy, etc.
	 	 	100	 
	7.12. Discharge of Guaranty Upon Sale of Guarantor
	 	 	101	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	101	 
	8.1. Events of Default
	 	 	101	 
	 
	 	 	 	 
	SECTION 9. AGENTS
	 	 	104	 
	9.1. Appointment of Agents.
	 	 	104	 
	9.2. Powers and Duties
	 	 	104	 
	9.3. General Immunity
	 	 	104	 
	9.4. Agents Entitled to Act as Lender
	 	 	106	 
	9.5. Lenders’ Representations, Warranties and Acknowledgment
	 	 	106	 
	9.6. Right to Indemnity
	 	 	107	 
	9.7. Successor Administrative Agent, Collateral Agent and Swing Line Lender.

	 	 	107	 
	
9.8. Collateral Documents and Guaranty
	 	 	108	 
	9.9. Intercreditor Agreement
	 	 	109	 
	9.10. Withholding Tax
	 	 	109	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	109	 
	10.1. Notices
	 	 	109	 
	10.2. Expenses
	 	 	110	 
	10.3. Indemnity
	 	 	111	 
	10.4. Set-Off
	 	 	111	 
	10.5. Amendments and Waivers
	 	 	112	 
	10.6. Successors and Assigns; Participations
	 	 	114	 
	10.7. Independence of Covenants
	 	 	118	 
	10.8. Survival of Representations, Warranties and Agreements
	 	 	118	 
	10.9. No Waiver; Remedies Cumulative
	 	 	118	 
	10.10. Marshalling; Payments Set Aside
	 	 	118	 
	10.11. Severability
	 	 	118	 
	10.12. Obligations Several; Independent Nature of Lenders’ Rights
	 	 	119	 






iv









 






	 	 	 	 	 
	 	 	Page
	10.13. Headings
	 	 	119	 
	10.14. APPLICABLE LAW
	 	 	119	 
	10.15. CONSENT TO JURISDICTION
	 	 	119	 
	10.16. WAIVER OF JURY TRIAL
	 	 	119	 
	10.17. Confidentiality
	 	 	120	 
	10.18. Judgment Currency
	 	 	121	 
	10.19. Usury Savings Clause
	 	 	121	 
	10.20. Counterparts
	 	 	122	 
	10.21. Effectiveness
	 	 	122	 
	10.22. Patriot Act
	 	 	122	 
	10.23. Electronic Execution of Assignments
	 	 	122	 






v









 






	 	 	 	 	 
	APPENDICES:

	 	A-1
	 	First Lien US Term Loan Commitments
	 

	 	A-2
	 	First Lien European Term Loan Commitments
	 

	 	A-3
	 	Revolving Commitments
	 

	 	B
	 	Notice Addresses
	 
	 	 	 	 
	SCHEDULES:

	 	3.1(h)
	 	Closing Date Mortgaged Properties
	 

	 	3.1(i)
	 	Landlord Personal Property Collateral Access Agreements
	 

	 	3.1(j)
	 	Environmental Reports
	 

	 	4.1
	 	Jurisdictions of Organization and Qualification
	 

	 	4.2
	 	Capital Stock and Ownership
	 

	 	4.12
	 	Real Estate Assets
	 

	 	4.15
	 	Material Contracts
	 

	 	6.1
	 	Certain Indebtedness
	 

	 	6.2
	 	Certain Liens
	 

	 	6.5
	 	Certain Restrictions on Subsidiary Distributions
	 

	 	6.6
	 	Certain Investments
	 

	 	6.11
	 	Certain Affiliate Transactions
	 
	 	 	 	 
	EXHIBITS:

	 	A-1
	 	Funding Notice
	 

	 	A-2
	 	Conversion/Continuation Notice
	 

	 	A-3
	 	Issuance Notice
	 

	 	B-1
	 	First Lien US Term Loan Note
	 

	 	B-2
	 	First Lien European Term Loan Note
	 

	 	B-3
	 	Revolving Loan Note
	 

	 	B-4
	 	Swing Line Note
	 

	 	C
	 	Compliance Certificate
	 

	 	D
	 	Opinions of Counsel
	 

	 	E
	 	Assignment Agreement
	 

	 	F
	 	Certificate Re Non-bank Status
	 

	 	G-1
	 	Closing Date Certificate
	 

	 	G-2
	 	Solvency Certificate
	 

	 	H
	 	Counterpart Agreement
	 

	 	I
	 	Pledge and Security Agreement
	 

	 	J
	 	Mortgage
	 

	 	K
	 	Landlord Waiver and Consent Agreement
	 

	 	L
	 	Intercreditor Agreement
	 

	 	M
	 	Joinder Agreement






vi









 






CREDIT AND GUARANTY AGREEMENT




          This CREDIT AND GUARANTY AGREEMENT, dated as of December 5, 2005, is entered into by and among
DAY INTERNATIONAL, INC., a Delaware corporation (“the
Company”), DAY INTERNATIONAL GROUP, INC., a
Delaware corporation (“Holdings”) and CERTAIN SUBSIDIARIES OF THE COMPANY, as Guarantors, the
Lenders party hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”), as Sole Lead
Arranger, Sole Book Runner, and as Sole Syndication Agent (in such capacities, “Syndication
Agent”), GOLDMAN SACHS CREDIT PARTNERS L.P., as Administrative Agent (together with its permitted
successors in such capacity, “Administrative Agent”) and as Collateral Agent (together with its
permitted successor in such capacity, “Collateral Agent”), and JPMORGAN CHASE BANK (“JPM”) and PNC
BANK, NATIONAL ASSOCIATION (“PNC”), as Joint Documentation Agents (in such capacity, “Documentation
Agents”).




RECITALS:




     WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;



     WHEREAS, Lenders have agreed to extend certain credit facilities to the Company, in an
aggregate principal amount not to exceed $300,000,000, consisting of $205,000,000 aggregate
principal amount of First Lien US Term Loans denominated in Dollars, the Euro equivalent of
$70,000,000 aggregate principal amount of First Lien European Term Loans denominated in Euro, and
up to $25,000,000 aggregate principal amount of Revolving Commitments denominated in Dollars, the
proceeds of which (i) in the case of First Lien Term Loans, shall be used to consummate the
Recapitalization and to pay Transaction Costs, and (ii) in the case of the Revolving Commitments,
will be used to provide financing for permitted capital expenditures and permitted acquisitions and
the payment of transaction fees and expenses related thereto, working capital requirements and
general corporate purposes of the Company and its Subsidiaries after the Closing Date;



     WHEREAS, the Company has agreed to secure all of its Obligations by granting to Collateral
Agent, for the benefit of Secured Parties, a First Priority Lien on substantially all of its
assets, including a pledge of all of the Capital Stock of each of its Domestic Subsidiaries and 65%
of all the Capital Stock of each of its Foreign Subsidiaries; and



     WHEREAS, Guarantors have agreed to guarantee the Obligations of the Company hereunder, and
Guarantors have agreed to secure their respective Obligations by granting to Collateral Agent, for
the benefit of Secured Parties, a First Priority Lien on substantially all of their respective
assets, including a pledge of all of the Capital Stock of each of their respective Domestic
Subsidiaries (including the Company) and 65% of all the Capital Stock of each of their respective
Foreign Subsidiaries.



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



 









 





SECTION 1. DEFINITIONS AND INTERPRETATION




     1.1. Definitions. The following terms used herein, including in the preamble, recitals,
exhibits and schedules hereto, shall have the following meanings:



          “Adjusted Eurocurrency Rate” means, for any Interest Rate Determination Date with respect to
an Interest Period for a Eurocurrency Rate Loan, the rate per annum obtained by dividing (and
rounding upward to the next whole multiple of 1/16 of 1%) (i) (a) in the case of a Eurocurrency
Rate Loan denominated in Dollars, the rate per annum (rounded to the nearest 1/100 of 1%) equal to
the rate determined by Administrative Agent to be the offered rate which appears on the page of the
Telerate Screen which displays an average British Bankers Association Interest Settlement Rate
(such page currently being page number 3740 or 3750, as applicable) for deposits (for delivery on
the first day of such period) with a term equivalent to such period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, (b) in
the case of a Eurocurrency Rate Loan denominated in Euro, the offered quotation which appears on
the page of the Telerate Screen which displays an average rate of the Banking Federation of the EMU
for the Euro (being currently page 248) for deposits (for delivery on the first day of such period)
with a term equivalent to such period in Euro, determined as of approximately 11:00 a.m. (London,
England time) on such Interest Rate Determination Date, (c) in the event the rate referenced in the
preceding clause (a) or (b), as applicable, does not appear on such page or service or if such page
or service shall cease to be available, the rate per annum (rounded to the nearest 1/100 of 1%)
equal to the rate determined by Administrative Agent to be the offered rate on such other page or
other service which displays, in the case of Eurocurrency Rate Loans in Dollars, an average British
Bankers Association Interest Settlement Rate for deposits (for delivery on the first day of such
period) with a term equivalent to such period in Dollars, or in the case of Eurocurrency Rate Loans
in Euro, the average rate of the Banking Federation of the EMU for deposits (for delivery on the
first day of such period) with a term equivalent to such period in Euros, in each case determined
as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, and
(d) in the event the rates referenced in the preceding clauses (a), (b) and (c) are not available,
the rate per annum (rounded to the nearest 1/100 of 1%) equal to the offered quotation rate to
first class banks in the London interbank market or the European interbank market, as applicable,
by the Issuing Bank for deposits (for delivery on the first day of the relevant period) in Dollars
or Euro, as applicable, of amounts in same day funds comparable to the principal amount of the
applicable Loan of Administrative Agent, in its capacity as a Lender, for which the Adjusted
Eurocurrency Rate is then being determined with maturities comparable to such period as of
approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii)
an amount equal to (a) one minus (b) the Applicable Reserve Requirement.




          “Administrative Agent” as defined in the preamble hereto.




          “Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration at law or in equity, or before or by any
Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending
or, to the knowledge of Holdings or any of its
Subsidiaries, threatened against Holdings or any of its Subsidiaries or any property of
Holdings or any of its Subsidiaries.




2









 








          “Affected Lender” as defined in Section 2.18(b).




          “Affected Loans” as defined in Section 2.18(b).




          “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, such Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 5% or more of the Securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities or by contract or
otherwise.




          “Agent” means each of Administrative Agent, Syndication Agent, Collateral Agent and the
Documentation Agents.




          “Aggregate Amounts Due” as defined in Section 2.17.




          “Aggregate Payments” as defined in Section 7.2.




          “Agreement” means this Credit and Guaranty Agreement, dated as of December 5, 2005, as it may
be amended, supplemented or otherwise modified from time to time.




          “Applicable Margin’’ and “Applicable Revolving Commitment Fee Percentage’’ mean (i) with
respect to Revolving Loans that are Eurocurrency Rate Loans and the Applicable Revolving Commitment
Fee Percentage, (a) from the Closing Date until the date of delivery of the Compliance Certificate
and the financial statements for the period ending June 30, 2006, a percentage, per annum,
determined by reference to the following table as if the Leverage Ratio then in effect were
5.50:1.00; and (b) thereafter, a percentage, per annum, determined by reference to the Leverage
Ratio in effect from time to time as set forth below:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Revolving
	 	 	Applicable Margin for	 	Commitment Fee
	Leverage Ratio	 	Revolving Loans	 	Percentage
	3 4.50:1.00
	 	 	2.50	%	 	 	0.50	%
	< 4.50:1.00
	 	 	 	 	 	 	 	 
	> 3.50:1.00
	 	 	2.25	%	 	 	0.50	%
	£ 3.50:1.00
	 	 	2.00	%	 	 	0.375	%





and (ii) with respect to Swing Line Loans and Revolving Loans that are Base Rate Loans, an amount
equal to (a) the Applicable Margin for Eurocurrency Rate Loans as set forth in clause (i)(a) or
(i)(b) above, as applicable, minus (b) 1.00% per annum. No change in the Applicable Margin or the
Applicable Revolving Commitment Fee Percentage shall be effective until the Business Day after the
date on which Administrative Agent shall have received the applicable
financial statements and a Compliance Certificate pursuant to Section 5.1(d) calculating the
Leverage Ratio. At any time the Company has not submitted to Administrative Agent the applicable
information as and when required under Section 5.1(d), the Applicable Margin and




3









 







the Applicable Revolving Commitment Fee Percentage shall be determined as if the Leverage Ratio were in excess of
5.50:1.00. Within one Business Day of receipt of the applicable information under Section 5.1(d),
Administrative Agent shall give each Lender telefacsimile or telephonic notice (confirmed in
writing) of the Applicable Margin and the Applicable Revolving Commitment Fee Percentage in effect
from such date.




          “Applicable Reserve Requirement” means, at any time, for any Eurocurrency Rate Loan, the
maximum rate, expressed as a decimal, at which reserves (including, without limitation, any basic
marginal, special, supplemental, emergency or other reserves) are required to be maintained with
respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under
regulations issued from time to time by the Board of Governors or other applicable banking
regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall
reflect any other reserves required to be maintained by such member banks with respect to (i) any
category of liabilities owed to the Company which includes deposits by reference to which the
applicable Adjusted Eurocurrency Rate or any other interest rate of a Loan is to be determined, or
(ii) any category of extensions of credit or other assets owed to the Company which include
Eurocurrency Rate Loans, including a percentage rate per annum determined by the Administrative
Agent to reflect the requirements of the Bank of England and/or the Financial Services Authority
and/or the European Central Bank in respect of monetary control, liquidity or otherwise. A
Eurocurrency Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be
deemed subject to reserve requirements without benefits of credit for proration, exceptions or
offsets that may be available from time to time to the applicable Lender. The rate of interest on
Eurocurrency Rate Loans shall be adjusted automatically on and as of the effective date of any
change in the Applicable Reserve Requirement.




          “Applicable Revolving Commitment Fee Percentage” as defined in the definition of “Applicable
Margin” above.




          “Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, transfer or other disposition to, or any exchange of property with, any
Person (other than the Company or any Guarantor Subsidiary), in one transaction or a series of
transactions, of all or any part of Holdings’ or any of its Subsidiaries’ businesses, assets or
properties of any kind, whether real, personal, or mixed and whether tangible or intangible,
whether now owned or hereafter acquired, including, without limitation, the Capital Stock of any of
Holdings’ Subsidiaries, other than (i) inventory (or other assets) sold or leased in the ordinary
course of business (excluding any such sales by operations or divisions discontinued or as of the
time of such disposition, scheduled to be discontinued), and (ii) sales of other assets for
aggregate consideration of less than $250,000 with respect to any transaction or series of related
transactions and less than $1,000,000 in the aggregate during any Fiscal Year.




          “Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit E, with such amendments or modifications as may be approved by Administrative Agent.




          “Assignment Effective Date” as defined in Section 10.6(b).




4









 








          “Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president or one of its vice
presidents (or the equivalent thereof), and such Person’s chief financial officer or treasurer.




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




          “Base Rate” means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in
effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective on the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.




          “Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base
Rate.




          “Beneficiary” means each Agent, Issuing Bank, Lender and Lender Counterparty.




          “Board of Governors” means the Board of Governors of the United States Federal Reserve System,
or any successor thereto.




          “Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close, (ii) with
respect to all notices, determinations, fundings and payments in connection with the Adjusted
Eurocurrency Rate or any Eurocurrency Rate Loans denominated in Dollars, the term “Business Day”
shall mean any day which is a Business Day described in clause (i) and which is also a day for
trading by and between banks in Dollar deposits in the London interbank market, and (iii) with
respect to all notices, determinations, fundings and payments in connection with the Adjusted
Eurocurrency Rate or any Eurocurrency Rate Loans denominated in Euro, the term “Business Day” shall
mean any day which is a Business Day described in clause (i) and which is also a TARGET Day.




          “Capital Lease” means, 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 should be
accounted for as a capital lease on the balance sheet of that Person.




          “Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other arrangements
or rights to acquire any of the foregoing.




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




5









 








          “Cash Equivalents” means, as at any date of determination, (i) marketable securities (a)
issued or directly and unconditionally guaranteed as to interest and principal by the United States
Government or (b) issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within one year after such
date; (ii) marketable direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof, in each case
maturing within one year after such date and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of
deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by
any Lender or by any commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as
defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as
defined in such regulations) of not less than $100,000,000; and (v) shares of any money market
mutual fund that (a) has substantially all of its assets invested continuously in the types of
investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P or Moody’s.




          “Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit F.




          "Change of Control” means, at any time, (i) Sponsors shall cease to beneficially own and
control at least 51% on a fully diluted basis of the economic and voting interests in the Capital
Stock of Holdings; (ii) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under
the Exchange Act) other than Sponsors shall have obtained the power (whether or not exercised) to
elect a majority of the members of the board of directors (or similar governing body) of Holdings;
(iii) Holdings shall cease to beneficially own and control 100% on a fully diluted basis of the
economic and voting interest in the Capital Stock of the Company; (iv) the majority of the seats
(other than vacant seats) on the board of directors (or similar governing body) of the Company
cease to be occupied by Persons who either (a) were members of the board of directors of the
Company on the Closing Date or (b) were nominated for election by the board of directors of the
Company, a majority of whom were directors on the Closing Date or whose election or nomination for
election was previously approved by a majority of such directors; or (v) any “change of control” or
similar event occurs under the Second Lien Term Facility.




          “Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a)
Lenders having First Lien US Term Loan Exposure, (b) Lenders having First Lien European Term Loan
Exposure, (c) Lenders having Revolving Exposure (including Swing Line Lender) and (d) Lenders
having New First Lien Term Loan Exposure of each applicable Series, and (ii) with respect to Loans,
each of the following classes of Loans: (a) First Lien US Term
Loans, (b) First Lien European Term Loans, (c) Revolving Loans (including Swing Line Loans)
and (d) each Series of New First Lien Term Loans.




          “Closing Date” means the date on which the First Lien Term Loans are made.




6









 








          “Closing Date Certificate” means a Closing Date Certificate substantially in the form of
Exhibit G-1.




          “Closing Date Mortgaged Property” as defined in Section 3.1(h).




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




          “Collateral Agent” as defined in the preamble hereto.




          “Collateral Documents” means the Pledge and Security Agreement, the Mortgages, the Landlord
Personal Property Collateral Access Agreements, if any, and all other instruments, documents and
agreements delivered by any Credit Party pursuant to this Agreement or any of the other Credit
Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any
real, personal or mixed property of that Credit Party as security for the Obligations.




          “Collateral Questionnaire” means a certificate in form satisfactory to Collateral Agent that
provides information with respect to the personal or mixed property of each Credit Party.




          “Commitment” means any Revolving Commitment, the First Lien Term Loan Commitment, or New First
Lien Term Loan Commitment.




          “Company” as defined in the preamble hereto.




          “Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit
C.




          “Consolidated Adjusted EBITDA” means, for any period, an amount determined for Holdings and
its Subsidiaries on a consolidated basis equal to (i) the sum, without duplication, of the amounts
for such period of (a) Consolidated Net Income, (b) Consolidated Interest Expense, (c) provisions
for taxes based on income, (d) total depreciation expense, (e) total amortization expense, (f) the
amount of cash payments made to the Sponsors or members of the board of directors of Holdings as
permitted by Section 6.4 for the rendering of management, consulting or financial advisory
services, to the extent reducing Consolidated Net Income for such period, (g) other adjustments
described on a schedule previously provided to the Administrative Agent in an amount not to exceed
$500,000, (h) other non-Cash items reducing Consolidated Net Income (excluding any such non-Cash
item to the extent that it represents an accrual or reserve for potential Cash items in any future
period or amortization of a prepaid Cash item that was paid in a prior period), and (i) any
extraordinary, unusual or non-recurring expenses or losses, minus (ii) other non-Cash items
increasing Consolidated Net Income for such period (excluding any such non-Cash item to the extent it
represents the reversal of an accrual or reserve for potential Cash item in any prior period) and
any extraordinary, unusual or non-recurring gains.




7









 








          “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures
of the Company and its Subsidiaries during such period determined on a consolidated basis that, in
accordance with GAAP, are or should be included in “purchase of property and equipment” or similar
items reflected in the consolidated statement of cash flows of the Company and its Subsidiaries.




          “Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense for
such period, excluding any amount not payable in Cash.




          “Consolidated Current Assets” means, as at any date of determination, the total assets of the
Company and its Subsidiaries on a consolidated basis that may properly be classified as current
assets in conformity with GAAP, excluding Cash and Cash Equivalents.




          “Consolidated Current Liabilities” means, as at any date of determination, the total
liabilities of the Company and its Subsidiaries on a consolidated basis that may properly be
classified as current liabilities in conformity with GAAP, excluding the current portion of long
term debt.




          “Consolidated Excess Cash Flow” means, for any period, an amount (if positive) equal to: (i)
the sum, without duplication, of the amounts for such period of (a) Consolidated Adjusted EBITDA,
plus (b) the Consolidated Working Capital Adjustment, minus (ii) the sum, without
duplication, of the amounts for such period of (a) scheduled repayments of Consolidated Total Debt,
(b) Consolidated Capital Expenditures (net of any proceeds of (y) any related financings with
respect to such expenditures and (z) any sales of assets used to finance such expenditures), (c)
Consolidated Cash Interest Expense, and (d) provisions for current taxes based on income of the
Company and its Subsidiaries and payable in cash with respect to such period.




          “Consolidated Interest Expense” means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of the
Company and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness
of the Company and its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and net costs under Interest Rate Agreements and any
write-offs of debt discount and other debt issuance costs and commission, but excluding, however,
any amounts referred to in Section 2.11(d) payable on or before the Closing Date.




          “Consolidated Net Income” means, for any period, (i) the net income (or loss) of the Company
and its Subsidiaries on a consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP, minus (ii) (a) the income (or loss) of any Person
(other than a Subsidiary of the Company) in which any other Person (other than the Company or any
of its Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to the Company or any of its Subsidiaries by such
Person during such period, (b) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of the Company or is merged into or consolidated with the Company or any of
its Subsidiaries or that Person’s assets are acquired by the Company or any of its Subsidiaries,
(c) the income of any Subsidiary of the Company to the extent that the declaration




8









 







or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted
by operation of the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary, and (d) any after-tax gains
or losses attributable to Asset Sales or returned surplus assets of any Pension Plan.




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




          “Consolidated Working Capital” means, as at any date of determination, the excess of
Consolidated Current Assets over Consolidated Current Liabilities.




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




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




          “Contributing Guarantors” as defined in Section 7.2.




          “Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.




          “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.




          “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Credit Party pursuant to Section 5.10.




          “Credit Date” means the date of a Credit Extension.




          “Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents,
the Intercreditor Agreement, any documents or certificates executed by the Company in favor of
Issuing Bank relating to Letters of Credit, and all other documents, instruments or agreements
executed and delivered by a Credit Party for the benefit of any Agent, Issuing Bank or any Lender
in connection herewith.




          “Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.




          “Credit Party” means each Person (other than any Agent, Issuing Bank or any Lender or any
representative thereof) from time to time party to a Credit Document.




9









 








          “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement, each of which
is for the purpose of hedging the foreign currency risk associated with Holdings’ and its
Subsidiaries’ operations and not for speculative purposes.




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




          “Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Loans of all
Lenders (calculated as if all Defaulting Lenders (other than such Defaulting Lender) had funded all
of their respective Defaulted Loans) over the aggregate outstanding principal amount of all Loans
of such Defaulting Lender.




          “Default Period” means, with respect to any Defaulting Lender, the period commencing on the
date of the applicable Funding Default and ending on the earliest of the following dates: (i) the
date on which all Commitments are cancelled or terminated and/or the Obligations are declared or
become immediately due and payable, (ii) the date on which (a) the Default Excess with respect to
such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata application of any
voluntary or mandatory prepayments of the Loans in accordance with the terms of Section 2.13 or
Section 2.14 or by a combination thereof) and (b) such Defaulting Lender shall have delivered to
the Company and Administrative Agent a written reaffirmation of its intention to honor its
obligations hereunder with respect to its Commitments, and (iii) the date on which the Company,
Administrative Agent and Requisite Lenders waive all Funding Defaults of such Defaulting Lender in
writing.




          “Defaulted Loan” as defined in Section 2.22.




          “Defaulting Lender” as defined in Section 2.22.




          “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.




          “Documentation Agents” as defined in the preamble hereto.




          “Dollar Equivalent” means with respect to an amount denominated in Euro on any date, the
amount of Dollars that may be purchased with such amount of Euro at the Spot Exchange Rate on such
date and, with respect to an amount denominated in Dollars on any date, the principal amount
thereof.




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




          “Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of
America, any State thereof or the District of Columbia.




10









 








          “Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Related Fund
(any two or more Related Funds being treated as a single Eligible Assignee for all purposes
hereof), and (ii) any commercial bank, insurance company, investment or mutual fund or other entity
that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which
extends credit or buys loans as one of its businesses; provided, neither the Sponsors nor
any Affiliate of Holdings or the Sponsors other than a Sponsor Affiliated Lender shall be an
Eligible Assignee; provided further, that Sponsor Affiliated Lenders shall not at any time
hold, in the aggregate, more than 10% of the Loans and Commitments outstanding hereunder.




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




          “EMU” means the Economic and Monetary Union as contemplated in the Treaty on European Union.




          “EMU Legislation” means legislative measures of the European Council for the introduction of,
changeover to or operation of a single or unified European currency (whether known as the euro or
otherwise), being in part the implementation of the third stage of EMU.




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




          “Environmental Laws” means any and all current or future foreign or domestic, federal or state
(or any subdivision of either of them), statutes, ordinances, orders, rules, regulations,
judgments, Governmental Authorizations, or any other requirements of Governmental Authorities
relating to (i) environmental matters, including those relating to any Hazardous Materials
Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or
(iii) occupational safety and health, industrial hygiene, land use or the protection of human,
plant or animal health or welfare, in any manner applicable to Holdings or any of its Subsidiaries
or any Facility.




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




          “ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is
a member of a group of trades or businesses under common control
within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning of Section




11









 







414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (i)
above or any trade or business described in clause (ii) above is a member. Any former ERISA
Affiliate of Holdings or any of its Subsidiaries shall continue to be considered an ERISA Affiliate
of Holdings or any such Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of Holdings or such Subsidiary and with respect to liabilities
arising after such period for which Holdings or such Subsidiary could be liable under the Internal
Revenue Code or ERISA.




          “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 412(m) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by Holdings, any of its Subsidiaries or
any of their respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in liability to Holdings, any of its
Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v)
the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any
event or condition which might constitute grounds under ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in a
complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefore, or the receipt by Holdings, any
of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer
Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that
it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the
occurrence of an act or omission which could give rise to the imposition on Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, taxes or related
charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or
(l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a
material claim (other than routine claims for benefits) against any Employee Benefit Plan other
than a Multiemployer Plan or the assets thereof, or against Holdings, any of its Subsidiaries or
any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt
from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other
Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code)
to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming
part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of
the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.




12









 








          “Euro” and “€” means the single currency of participating member states of the EMU and as
referred to in EMU Legislation.




          “Eurocurrency Rate Loan” means a Loan bearing interest at a rate determined by reference to
the Adjusted Eurocurrency Rate.




          “Event of Default” means each of the conditions or events set forth in Section 8.1.




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




          “Existing Exchangeable Preferred Stock” means Holdings’ existing 121/4% Senior Exchangeable
Preferred Stock Due 2010, par value $0.01 per share.




          "Existing Indebtedness” means (i) Indebtedness and other obligations outstanding under that
certain Second Amended and Restated Senior Secured Credit Agreement dated as of September 16, 2003
between Holdings, the lenders party thereto and Lehman Commercial Paper Inc., as administrative
agent, as amended prior to the Closing Date and (ii) the Existing Subordinated Notes.




          “Existing Letters of Credit” means (i) the letter of credit provided by JPMorgan Chase Bank,
N.A. to Holdings in favor of Citibank Costa Rica dated November 9, 2005 (No. CPCS213086) and (ii)
the letter of credit provided by JPMorgan Chase Bank, N.A. to Holdings in favor of American
Casualty Co. dated February 15, 2004 (No. CLS348888).




          “Existing Subordinated Notes” means Holding’s existing 91/2% Senior Subordinated Notes due 2008
issued pursuant to that certain indenture dated March 18, 1998 between the Company, as note
guarantor and The Bank of New York, as Trustee.




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




          “Fair Share” as defined in Section 7.2.




          “Fair Share Contribution Amount” as defined in Section 7.2.




          “Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal,
rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided, (i) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business
Day, and (ii) if no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate charged to Administrative Agent, in its
capacity as a Lender, on such day on such transactions as determined by Administrative Agent.




13









 








          “Financial Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of the chief financial officer of the Company
that such financial statements fairly present, in all material respects, the financial condition of
the Company and its Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from audit and normal
year-end adjustments.




          “Financial Plan” as defined in Section 5.1(i).




          “First Lien European Term Loan” means a First Lien European Term Loan made by a Lender to the
Company pursuant to Section 2.1(a)(ii).




          “First Lien European Term Loan Commitment” means the commitment of a Lender to make or
otherwise fund a First Lien European Term Loan and “First Lien European Term Loan Commitments”
means such commitments of all Lenders in the aggregate. The amount of each Lender’s First Lien
European Term Loan Commitment, if any, is set forth on Appendix A-2 or in the applicable Assignment
Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The
aggregate principal amount of the First Lien European Term Loan Commitments as of the Closing Date
is the Euro equivalent of $70,000,000 denominated in Euro.




          “First Lien European Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the First Lien European Term Loans of such
Lender; provided, at any time prior to the making of the First Lien European Term Loans,
the First Lien European Term Loan Exposure of any Lender shall be equal to such Lender’s First Lien
European Term Loan Commitment.




          “First Lien European Term Loan Maturity Date” means the earlier of (i) the seventh anniversary
of the Closing Date, and (ii) the date that all First Lien European Term Loans shall become due and
payable in full hereunder, whether by acceleration or otherwise.




          “First Lien European Term Loan Note” means a promissory note in the form of Exhibit B-2, as it
may be amended, supplemented or otherwise modified from time to time.




          “First Lien Term Loan” means a First Lien US Term Loan or a First Lien European Term Loan.




          “First Lien Term Loan Commitment” means the First Lien US Term Loan Commitment or the First
Lien European Term Loan Commitment of a Lender, and “Term Loan Commitments” means such commitments
of all Lenders.




          “First Lien Term Loan Maturity Date” means the First Lien US Term Loan Maturity Date and the
First Lien European Term Loan Maturity date.




          “First Lien US Term Loan” means a First Lien US Term Loan made by a Lender to the Company
pursuant to Section 2.1(a)(i).




14









 








          “First Lien US Term Loan Commitment” means the commitment of a Lender to make or otherwise
fund a First Lien US Term Loan and “First Lien US Term Loan Commitments” means such commitments of
all Lenders in the aggregate. The amount of each Lender’s First Lien US Term Loan Commitment, if
any, is set forth on Appendix A-1 or in the applicable Assignment Agreement, subject to any
adjustment or reduction pursuant to the terms and conditions hereof. The aggregate principal
amount of the First Lien US Term Loan Commitments as of the Closing Date is $205,000,000.




          “First Lien US Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the First Lien US Term Loans of such Lender;
provided, at any time prior to the making of the First Lien US Term Loans, the First Lien
US Term Loan Exposure of any Lender shall be equal to such Lender’s First Lien US Term Loan
Commitment.




          “First Lien US Term Loan Maturity Date” means the earlier of (i) the seventh anniversary of
the Closing Date, and (ii) the date that all First Lien US Term Loans shall become due and payable
in full hereunder, whether by acceleration or otherwise.




          “First Lien US Term Loan Note” means a promissory note in the form of Exhibit B-1, as it may
be amended, supplemented or otherwise modified from time to time.




          “First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is
subject, other than any Permitted Lien.




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




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




          “Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of
Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards.




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




          “Funding Default” as defined in Section 2.22.




          “Funding Guarantors” as defined in Section 7.2.




          “Funding Notice” means a notice substantially in the form of Exhibit A-1.




          “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date of determination
thereof.




          “Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.




15









 








          “Governmental Authority” means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the United States, or a foreign entity
or government.




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




          “Grantor” as defined in the Pledge and Security Agreement.




          “Guaranteed Obligations” as defined in Section 7.1.




          “Guarantor” means each of Holdings and each Domestic Subsidiary of Holdings (other than the
Company).




          “Guarantor Subsidiary” means each Guarantor other than Holdings.




          “Guaranty” means the guaranty of each Guarantor set forth in Section 7.




          “Hazardous Materials” means any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard
to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or
to the indoor or outdoor environment.




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




          “Hedge Agreement” means an Interest Rate Agreement or a Currency Agreement entered into with a
Lender Counterparty in order to satisfy the requirements of this Agreement or otherwise in the
ordinary course of Holdings’ or any of its Subsidiaries’ businesses.




          “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.




          “Historical Financial Statements” means as of the Closing Date, (i) the audited financial
statements of Holdings and its Subsidiaries, for the immediately preceding three Fiscal Years,
consisting of consolidated balance sheets and the related consolidated statements of




16









 







income, stockholders’ equity and cash flows for such Fiscal Years, and (ii) the unaudited financial
statements of Holdings and its Subsidiaries as at the most recently ended Fiscal Quarter,
consisting of a consolidated balance sheet and the related consolidated statements of income,
stockholders’ equity and cash flows for the three-, six-or nine-month period, as applicable, ending
on such date, and, in the case of clauses (i) and (ii), certified by the chief financial officer of
the Company that they fairly present, in all material respects, the financial condition of Holdings
and its Subsidiaries as at the dates indicated and the results of their operations and their cash
flows for the periods indicated, subject to changes resulting from audit and normal year-end
adjustments.




          “Holdings” as defined in the preamble hereto.




          “Holdings Collateral” means all of Holdings’ real, personal and mixed property (including
Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as
security for the Obligations.




          “Holdings Permitted Refinancing Indebtedness” means Indebtedness issued or incurred by
Holdings to refinance, refund or replace its Existing Exchangeable Preferred Stock;
provided that (a) the principal amount of such refinancing, refunding or replacing
Indebtedness is not greater than the outstanding principal amount of the Existing Exchangeable
Preferred Stock plus the amount of any premiums or penalties and accrued and unpaid interest paid
thereon and reasonable fees and expenses, in each case associated with such refinancing, refunding
or replacement, (b) any interest accrued on such refinancing, refunding or replacing Indebtedness
shall be paid in kind and in no event shall any such interest be payable in cash unless no Loans
are outstanding under this Agreement (or any permitted refinancings thereof), and no Letters of
Credit, commitments to extend credit or obligations to make payments remain outstanding hereunder
that have not been fully cash collateralized, (c) such refinancing, refunding or replacing
Indebtedness does not mature, and is not subject to mandatory repurchase, redemption or
amortization, in each case, prior to the date that is six months after the First Lien Term Loan
Maturity Date, (d) such refinancing, refunding or replacing Indebtedness is not guaranteed by
Holdings or any of its Subsidiaries or secured by any assets of Holdings or any of its
Subsidiaries, (e) such refinancing, refunding or replacing Indebtedness is not exchangeable or
convertible into any other Indebtedness of Holdings or any of its Subsidiaries or any preferred
stock or other Capital Stock (other than common equity, provided that any such exchange or
conversion, if effected, would not result in a Change in Control) and (f) to the extent such
refinancing, refunding or replacing Indebtedness contains covenants and events of default, such
covenants and events of default shall be reasonably determined by the Administrative Agent to be no
less favorable, when taken as a whole, to the Lenders in any material respect than the covenants
and events of default in the Second Lien Term Facility.




          “Increased Amount Date” as defined in Section 2.24.




          “Increased-Cost Lenders” as defined in Section 2.23.




          “Indebtedness", as applied to any Person, means, without duplication, (i) all indebtedness for
borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii) notes




17









 







payable and
drafts accepted representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA), which purchase price is
(a) due more than six months from the date of incurrence of the obligation in respect thereof or
(b) evidenced by a note or similar written instrument; (v) all indebtedness secured by any Lien on
any property or asset owned or held by that Person regardless of whether the indebtedness secured
thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; (vi)
the face amount of any letter of credit issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings; (vii) the direct or indirect guaranty,
endorsement (otherwise than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of the obligation of
another; (viii) any obligation of such Person the primary purpose or intent of which is to provide
assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or
any agreement relating thereto will be complied with, or the holders thereof will be protected (in
whole or in part) against loss in respect thereof; (ix) any liability of such Person for an
obligation of another through any agreement (contingent or otherwise) (a) to purchase, repurchase
or otherwise acquire such obligation or any security therefor, or to provide funds for the payment
or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (b) to maintain the solvency or any balance sheet item, level of
income or financial condition of another if, in the case of any agreement described under
subclauses (a) or (b) of this clause (ix), the primary purpose or intent thereof is as described in
clause (viii) above; and (x) all obligations of such Person in respect of any exchange traded or
over the counter derivative transaction, including, without limitation, any Interest Rate Agreement
and Currency Agreement, whether entered into for hedging or speculative purposes; provided,
in no event shall obligations under any Interest Rate Agreement and any Currency Agreement be
deemed “Indebtedness” for any purpose under Section 6.7.




          “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, claims (including Environmental Claims),
costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup,
removal, remediation or other response action necessary to remove, remediate, clean up or abate any
Hazardous Materials Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by any Person, whether
or not any such Indemnitee shall be designated as a party or a potential party thereto, and any
fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or
consequential and whether based on any federal, state or foreign laws, statutes, rules or
regulations (including securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be
imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Credit Documents or the transactions contemplated
hereby or thereby (including the Lenders’ agreement to make Credit Extensions or the use or
intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Guaranty)); or (ii) any
Environmental Claim or any Hazardous Materials Activity relating to or arising from, directly or




18









 







indirectly, any past or present activity, operation, land ownership, or practice of Holdings or any
of its Subsidiaries.




          “Indemnitee” as defined in Section 10.3.




          “Installment” as defined in Section 2.12(a).




          “Intercreditor Agreement” means that certain Intercreditor Agreement dated as of the Closing
Date among the Collateral Agent, the Company, and the collateral agent under the Second Lien Term
Facility substantially in the form of Exhibit L.




          “Interest Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i)
Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ended to (ii) Consolidated
Cash Interest Expense for such four-Fiscal Quarter period.




          “Interest Payment Date” means with respect to (i) any Revolving Loan that is a Base Rate Loan,
each March 31, June 30, September 30 and December 31 of each year, commencing on the first such
date to occur after the Closing Date and the final maturity date of such Loan; (ii) any Revolving
Loan that is a Eurocurrency Rate Loan, the last day of each Interest Period applicable to such
Loan; provided, in the case of each Interest Period of longer than three months “Interest
Payment Date” shall also include each date that is three months, or an integral multiple thereof,
after the commencement of such Interest Period; and (iii) First Lien Term Loans, each April 1, July
1, October 1 and January 1 of each year, commencing on January 1, 2006 through the final maturity
date of such Loan.




          “Interest Period” means, in connection with a Eurocurrency Rate Loan, an interest period of
one-, two-, three- or six-months, as selected by the Company in the applicable Funding Notice or
Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or
Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the
day on which the immediately preceding Interest Period expires; provided, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day unless no further Business Day occurs in such
month, in which case such Interest Period shall expire on the immediately preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clauses (c) and (d), of this definition, end on the last Business Day of
a calendar month; (c) no Interest Period with respect to any portion of any Class of First Lien
Term Loans shall extend beyond such Class’s First Lien Term Loan Maturity Date; and (d) no Interest
Period with respect to any portion of the Revolving Loans shall extend beyond the Revolving
Commitment Termination Date.




          “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of hedging the interest rate
exposure associated with Holdings’ and its Subsidiaries’ operations and not for speculative
purposes.




          “Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.




19









 








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




          “Investment” means (i) any direct or indirect purchase or other acquisition by Holdings or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person
(other than the Company or a Guarantor Subsidiary); (ii) any direct or indirect redemption,
retirement, purchase or other acquisition for value, by any Subsidiary of Holdings from any Person
(other than Holdings, the Company or any Guarantor Subsidiary), of any Capital Stock of such
Person; and (iii) any direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business) or capital contributions by Holdings or any of its Subsidiaries to any
other Person (other than Holdings, the Company or any Guarantor Subsidiary), including all
indebtedness and accounts receivable from that other Person that are not current assets or did not
arise from sales to that other Person in the ordinary course of business. The amount of any
Investment shall be the original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment.




          “Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.




          “Issuing Bank” means JPMorgan Chase Bank, N.A. as Issuing Bank hereunder, together with its
permitted successors and assigns in such capacity.




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




          “Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form; provided, in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.




          “Junior Convertible Preferred Stock” means Holdings’ existing 18% Convertible Cumulative
Preferred Stock Due 2010, par value $0.01 per share.




          “Landlord Personal Property Collateral Access Agreement” means a Landlord Waiver and Consent
Agreement substantially in the form of Exhibit K with such amendments or modifications as may be
approved by Collateral Agent.




          “Lead Arranger” as defined in the preamble hereto.




          “Leasehold Property” means any leasehold interest of any Credit Party as lessee under any
lease of real property, other than any such leasehold interest designated from time to
time by Collateral Agent in its sole discretion as not being required to be included in the
Collateral.




          “Lender” means each financial institution listed on the signature pages hereto as a Lender,
and any other Person that becomes a party hereto pursuant to an Assignment Agreement or a Joinder
Agreement.




20









 








          “Lender Counterparty” means each Lender or any Affiliate of a Lender counterparty to a Hedge
Agreement (including any Person who is a Lender (and any Affiliate thereof) as of the Closing Date
but subsequently, whether before or after entering into a Hedge Agreement, ceases to be a Lender)
including, without limitation, each such Affiliate that enters into a joinder agreement with
Collateral Agent.




          “Letter of Credit” means the Existing Letters of Credit and a commercial or standby letter of
credit issued or to be issued by Issuing Bank pursuant to this Agreement.




          “Letter of Credit Sublimit” means the lesser of (i) $10,000,000 and (ii) the aggregate unused
amount of the Revolving Commitments then in effect.




          “Letter of Credit Usage” means, as at any date of determination, the sum of (i) the maximum
aggregate amount which is, or at any time thereafter may become, available for drawing under all
Letters of Credit then outstanding, and (ii) the aggregate amount of all drawings under Letters of
Credit honored by Issuing Bank and not theretofore reimbursed by or on behalf of the Company.




          “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter or other date of
determination of (i) Consolidated Total Debt as of such day to (ii) Consolidated Adjusted EBITDA
for the four-Fiscal Quarter period ending on such date (or if such date of determination is not the
last day of a Fiscal Quarter, for the four-Fiscal Quarters period ending as of the most recently
concluded Fiscal Quarter).




          “Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement, and any lease in the nature thereof) and any option, trust or
other preferential arrangement having the practical effect of any of the foregoing and (ii) in the
case of Securities, any purchase option, call or similar right of a third party with respect to
such Securities.




          “Loan” means a First Lien Term Loan, a Revolving Loan, a Swing Line Loan and a New First Lien
Term Loan.




          “Management Consulting Agreements” means the Consulting Agreement dated as of March 18, 1998
between Holdings and Greenwich Street Capital Partners, Inc. and the Consulting Agreement dated as
of March 18, 1998 between Holdings and SG Capital Partners LLC.




          “Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to
time.




          “Material Adverse Effect” means a material adverse effect on and/or material adverse
developments with respect to (i) the business, operations, properties, assets, condition (financial
or otherwise) or prospects of the Company and its Subsidiaries taken as a whole; (ii) the ability
of any Credit Party to perform its Obligations as contemplated herein; (iii) the legality,
validity, binding effect or enforceability against a Credit Party of a Credit Document to which it




21









 







is a party; or (iv) the rights, remedies and benefits available to, or conferred upon, any Agent
and any Lender or any Secured Party under any Credit Document.




          “Material Contract” means any contract or other arrangement to which the Company or any of its
Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance,
cancellation or failure to renew would reasonably be expected to have a Material Adverse Effect.




          “Material Real Estate Asset’’ means (i) (a) any fee-owned Real Estate Asset having a fair
market value in excess of $1,000,000 as of the date of the acquisition thereof and (b) all
Leasehold Properties other than those with respect to which the aggregate payments under the term
of the lease are less than $500,000 per annum or (ii) any Real Estate Asset that the Requisite
Lenders have reasonably determined is material to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Holdings or any Subsidiary thereof, including
the Company.




          “Moody’s” means Moody’s Investor Services, Inc. or any successor thereto.




          “Mortgage” means a Mortgage substantially in the form of Exhibit J, as it may be amended,
supplemented or otherwise modified from time to time.




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




          “NAIC” means The National Association of Insurance Commissioners, and any successor thereto.




          “Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a narrative report describing the operations of the Company and its
Subsidiaries in the form prepared for presentation to senior management thereof for the applicable
Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year
to the end of such period to which such financial statements relate.




          “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) received by Holdings or any
of its Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs, including
all fees and expenses, incurred in connection with such Asset Sale, including (a) income or gains
taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale,
(b) payment of the outstanding principal amount of, premium or penalty, if any, interest and
accrued fees and other amounts payable in respect of any Indebtedness (other than the Loans) that
is secured by a Lien on the stock or assets in question and that is required to be repaid under the
terms thereof as a result of such Asset Sale and (c) a
reasonable reserve for any indemnification payments (fixed or contingent) attributable to
seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale
undertaken by Holdings or any of its Subsidiaries in connection with such Asset Sale.




22









 








          “Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by Holdings or any of its Subsidiaries (a) under any casualty insurance policy in
respect of a covered loss thereunder or (b) as a result of the taking of any assets of Holdings or
any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or
otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of
such a taking, minus (ii) (a) any actual and reasonable costs incurred by Holdings or any
of its Subsidiaries in connection with the adjustment or settlement of any claims of Holdings or
such Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with
any sale of such assets as referred to in clause (i)(b) of this definition, including income taxes
payable as a result of any gain recognized in connection therewith.




          “New First Lien Term Loan Commitments” as defined in Section 2.24.




          “New First Lien Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the New First Lien Term Loans of such Lender.




          “New First Lien Term Loan Lender” as defined in Section 2.24.




          “New First Lien Term Loan Maturity Date” means the date that New First Lien 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 First Lien Term Loans” as defined in Section 2.24.




          “Non-Consenting Lender” as defined in Section 2.23.




          “Nonpublic Information” means information which has not been disseminated in a manner making
it available to investors generally, within the meaning of Regulation FD.




          “Non-US Lender” as defined in Section 2.20(c).




          “Note” means a First Lien Term Loan Note, a Revolving Loan Note or a Swing Line Note.




          “Notice” means a Funding Notice, an Issuance Notice, or a Conversion/ Continuation Notice.




          “Obligations” means all obligations of every nature of each Credit Party under the Credit
Documents, including such obligations from time to time owed to the Agents (including former
Agents), the Lenders or any of them and Lender Counterparties, under any Credit Document or Hedge
Agreement, whether for principal, interest (including interest which, but for the filing of a
petition in bankruptcy with respect to such Credit Party, would have
accrued on any Obligation, whether or not a claim is allowed against such Credit Party for
such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters
of Credit, payments for early termination of Hedge Agreements, fees, expenses, indemnification or
otherwise.




23









 








          “Obligee Guarantor” as defined in Section 7.7.




          “Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended. In the event any term or
condition of this Agreement or any other Credit Document requires any Organizational Document to be
certified by a secretary of state or similar governmental official, the reference to any such
“Organizational Document” shall only be to a document of a type customarily certified by such
governmental official.




          “Original Currency” as defined in Section 10.18.




          “Other Currency” as defined in Section 10.18.




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




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




          “Permitted Acquisition” means any acquisition by the Company or any of its wholly-owned
Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of the assets
of, all of the Capital Stock of, or a business line or unit or a division of, any Person;
provided,





          (i) immediately prior to, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or would result therefrom;




          (ii) all transactions in connection therewith shall be consummated, in all material
respects, in accordance with all applicable laws and in conformity with all applicable
Governmental Authorizations;




          (iii) in the case of the acquisition of Capital Stock, all of the Capital Stock (except
for any such Securities in the nature of directors’ qualifying shares required pursuant to
applicable law) acquired or otherwise issued by such Person or any newly formed Subsidiary
of the Company in connection with such acquisition shall be owned 100% by the Company or a
Guarantor Subsidiary thereof, and the Company shall have taken, or caused to be taken, as of
the date such Person becomes a Subsidiary of the Company, each of the actions set forth in
Sections 5.10 and/or 5.11, as applicable;




          (iv) the Company and its Subsidiaries shall be in compliance with the financial
covenants set forth in Section 6.7 on a pro forma basis after giving effect to such
acquisition as of the last day of the Fiscal Quarter most recently ended, (as determined in
accordance with Section 6.7(d));



24









 






          (v) the Company shall have delivered to Administrative Agent (A) at least 10 Business
Days prior to the consummation of such proposed acquisition, a Compliance Certificate
evidencing compliance with Section 6.7 as required under clause (iv) above, together with
all relevant financial information with respect to such acquired assets, including, without
limitation, the aggregate consideration for such acquisition and any other information
required to demonstrate compliance with Section 6.7; and




          (vi) any Person or assets or division as acquired in accordance herewith (y) shall be
in the same or similar business or lines of business in which the Company and/or its
Subsidiaries are engaged or (z) shall utilize the same or similar manufacturing processes as
utilized by the Company and/or its Subsidiaries, in each case as of the Closing Date.



          “Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.




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




          “Phase I Report’’ means, with respect to any Facility, a report that (i) conforms to the ASTM
Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment
Process, E 1527, (ii) was conducted no more than six months prior to the date such report is
required to be delivered hereunder, by one or more environmental consulting firms reasonably
satisfactory to Administrative Agent, (iii) includes an assessment of asbestos-containing
materials at such Facility, (iv) is accompanied by (a) an estimate of the reasonable worst-case
cost of investigating and remediating any Hazardous Materials Activity identified in the Phase I
Report as giving rise to an actual or potential material violation of any Environmental Law or as
presenting a material risk of giving rise to a material Environmental Claim, and (b) a current
compliance audit setting forth an assessment of Holdings’, its Subsidiaries’ and such Facility’s
current and past compliance with Environmental Laws and an estimate of the cost of rectifying any
non-compliance with current Environmental Laws identified therein and the cost of compliance with
reasonably anticipated future Environmental Laws identified therein.




          “Platform” as defined in Section 5.1(q).




          “Pledge and Security Agreement” means the Pledge and Security Agreement to be executed by the
Company and each Guarantor substantially in the form of Exhibit I, as it may be amended,
supplemented or otherwise modified from time to time.




          “Prime Rate” means the rate of interest quoted in The Wall Street Journal, Money Rates Section
as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of
the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate




25









 







actually charged to any customer. Any Agent or Lender may make commercial loans or other loans at rates of interest at,
above or below the Prime Rate.




          “Principal Office” means, for each of Administrative Agent, Swing Line Lender and Issuing
Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other office or office
of a third party or sub-agent, as appropriate, as such Person may from time to time designate in
writing to the Company, Administrative Agent and each Lender.




          “Projections” as defined in Section 4.8.




          “Pro Rata Share” means (i) with respect to all payments, computations and other matters
relating to the First Lien US Term Loan of any Lender, the percentage obtained by dividing (a) the
First Lien US Term Loan Exposure of that Lender by (b) the aggregate First Lien US Term Loan
Exposure of all Lenders; (ii) with respect to all payments, computations and other matters relating
to the First Lien European Term Loan of any Lender, the percentage obtained by dividing (a) the
First Lien European Term Loan Exposure of that Lender by (b) the aggregate First Lien European Term
Loan Exposure of all Lenders; (iii) with respect to all payments, computations and other matters
relating to the Revolving Commitment or Revolving Loans of any Lender or any Letters of Credit
issued or participations purchased therein by any Lender or any participations in any Swing Line
Loans purchased by any Lender, the percentage obtained by dividing (a) the Revolving Exposure of
that Lender by (b) the aggregate Revolving Exposure of all Lenders; and (iv) with respect to all
payments, computations, and other matters relating to New First Lien Term Loan Commitments or New
First Lien Term Loans of a particular Series, the percentage obtained by dividing (a) the New First
Lien Term Loan Exposure of that Lender with respect to that Series by (b) the aggregate New First
Lien Term Loan Exposure of all Lenders with respect to that Series. For all other purposes with
respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing (A) an amount
equal to the sum of the First Lien US Term Loan Exposure, the First Lien European Term Loan
Exposure, the Revolving Exposure and the New First Lien Term Loan Exposure of that Lender, by (B)
an amount equal to the sum of the aggregate First Lien US Term Loan Exposure, the aggregate First
Lien European Term Loan Exposure, the aggregate Revolving Exposure and the aggregate New First Lien
Term Loan Exposure of all Lenders.




          “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by any Credit Party in any real property.




          “Recapitalization” means (i) the repayment or redemption of all Existing Indebtedness (other
than any amounts of the Existing Subordinated Notes not tendered as of the Closing Date), (ii) the
redemption by Holdings of its Existing Exchangeable Preferred Stock in an aggregate amount of up to
$40,000,000 (including principal, accumulated and accrued dividends and other similar amounts) and
(iii) the redemption by Holdings of its outstanding Junior Convertible Preferred Stock in an
aggregate amount of up to $107,000,000 (including principal, accumulated and accrued dividends and
other similar amounts).




          “Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).




          “Register” as defined in Section 2.7(b).




26









 








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




          “Regulation FD” means Regulation FD as promulgated by the US Securities and Exchange
Commission under the Securities Act and Exchange Act as in effect from time to time.




          “Reimbursement Date” as defined in Section 2.4(d).




          “Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.




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




          “Replacement Lender” as defined in Section 2.23.




          “Requisite Class Lenders” means, at any time of determination, (i) for the Class of Lenders
having First Lien US Term Loan Exposure, Lenders holding more than 50% of the aggregate First Lien
US Term Loan Exposure of all Lenders that are not Sponsor Affiliated Lenders; (ii) for the Class of
Lenders having First Lien European Term Loan Exposure, Lenders holding more than 50% of the
aggregate First Lien European Term Loan Exposure of all Lenders that are not Sponsor Affiliated
Lenders; (iii) for the Class of Lenders having Revolving Exposure, Lenders holding more than 50% of
the aggregate Revolving Exposure of all Lenders that are not Sponsor Affiliated Lenders; and (iv)
for each Class of Lenders having New First Lien Term Loan Exposure, Lenders that are not Sponsor
Affiliated Lenders holding more than 50% of the aggregate New First Lien Term Loan Exposure of that
Class.




          “Requisite Lenders” means one or more Lenders having or holding First Lien US Term Loan
Exposure, First Lien European Term Loan Exposure, New First Lien Term Loan Exposure and/or
Revolving Exposure and representing more than 50% of the sum of (i) the aggregate First Lien US
Term Loan Exposure of all Lenders, (ii) the aggregate First Lien European Term Loan Exposure of all
Lenders, (iii) the aggregate Revolving Exposure of all Lenders, and (iv) the aggregate New First
Lien Term Loan Exposure of all Lenders, in each case that are not Sponsor Affiliated Lenders.




          “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of the Company now or hereafter outstanding, except
a dividend payable solely in shares of that class of stock to the holders of that class; (ii) any
redemption, retirement, sinking fund or similar payment, purchase
or other acquisition for value, direct or indirect, of any shares of any class of stock of the
Company now or hereafter outstanding; (iii) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares of any class of stock of
the Company now or hereafter outstanding; (iv) management or similar fees payable to the Sponsors




27









 







or any of their Affiliates (other than reasonable expenses in connection with the Management
Consulting Agreements and reasonable payments for director and executive indemnification and
compensation) and (v) any payment or prepayment of principal of, premium, if any, or interest on,
or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Indebtedness subordinated in right of payment
to the Obligations, except as permitted by the terms of such subordination.




          “Revolving Commitment” means the commitment of a Lender to make or otherwise fund any
Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder
and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount of
each Lender’s Revolving Commitment, if any, is set forth on Appendix A-3 or in the applicable
Assignment Agreement or Joinder Agreement, as applicable, subject to any adjustment or reduction
pursuant to the terms and conditions hereof. The aggregate principal amount of the Revolving
Commitments as of the Closing Date is $25,000,000.




          “Revolving Commitment Period” means the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.




          “Revolving Commitment Termination Date” means the earliest to occur of (i) the sixth
anniversary of the Closing Date, (ii) the date the Revolving Commitments are permanently reduced to
zero pursuant to Section 2.13(b) or 2.14, and (iii) the date of the termination of the Revolving
Commitments pursuant to Section 8.1.




          “Revolving Exposure” means, with respect to any Lender as of any date of determination, (i)
prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii)
after the termination of the Revolving Commitments, the sum of (a) the aggregate outstanding
principal amount of the Revolving Loans of that Lender, (b) in the case of Issuing Bank, the
aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of
any participations by Lenders in such Letters of Credit), (c) the aggregate amount of all
participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing
under any Letter of Credit, (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein by other Lenders), and
(e) the aggregate amount of all participations therein by that Lender in any outstanding Swing Line
Loans.




          “Revolving Loan” means a Loan made by a Lender to the Company pursuant to Section 2.2(a)
and/or 2.22.




          “Revolving Loan Note” means a promissory note in the form of Exhibit B-3, as it may be
amended, supplemented or otherwise modified from time to time.




          “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation or any
successor thereto.




          “Second Lien Term Facility” means the Second Lien Credit and Guaranty Agreement, dated as of
the date hereof, entered into by the Credit Parties and the various lenders




28









 







and agents thereunder,
as the same may be amended, restated, supplemented or otherwise modified from time to time in
accordance with the provisions of Section 6.14.




          “Secured Parties” has the meaning assigned to that term in the Pledge and Security Agreement.




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




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




          “Series” as defined in Section 2.24.




          “Settlement Confirmation” as defined in Section 10.6(b).




          “Settlement Service” as defined in Section 10.6(d).




          “Solvency Certificate” means a Solvency Certificate of the chief financial officer of the
Company substantially in the form of Exhibit G-2.




          “Solvent” means, with respect to any Credit Party, that as of the date of determination, both
(i) (a) the sum of such Credit Party’s debt (including contingent liabilities) does not exceed the
present fair saleable value of such Credit Party’s present assets; (b) such Credit Party’s capital
is not unreasonably small in relation to its business as contemplated on the Closing Date and
reflected in the Projections or with respect to any transaction contemplated or undertaken after
the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe
(nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts
as they become due (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).




          “Sponsor Affiliated Lender” means investment funds or managed accounts with respect to which
Sponsors or an Affiliate of either Sponsor is an advisor or manager in the
ordinary course of business and pursuant to written agreements provided such Person
executes a waiver in form and substance reasonably satisfactory to Administrative Agent that it
shall have no right whatsoever so long as such Person is an Affiliate of either Sponsor, and except
as provided under Section 10.5(e), (i) to consent to any amendment, modification, waiver, consent
or other such action with respect to any of the terms of this Agreement or any other Credit




29









 







Document, (ii) to require any Agent or other Lender to undertake any action (or refrain from taking
any action) with respect to this Agreement or any other Credit Document, (iii) otherwise vote on
any matter related to this Agreement or any other Credit Document, (iv) attend any meeting with any
Agent or Lender or receive any information from any Agent or Lender or (v) make or bring any claim,
in its capacity as Lender, against the Agent or any Lender with respect to the duties and
obligations of such Persons under the Credit Documents.




          “Sponsors” means Greenwich IV, L.L.C., SG Capital Partners, L.L.C. and certain of their
respective Affiliates from time to time.




          “Spot Exchange Rate” means, at any date of determination thereof, the spot rate of exchange in
London that appears on the display page applicable to the relevant currency on the Telerate System
Incorporated Service (or such other page as may replace such page on such service for the purpose
of displaying the spot rate of exchange in London for the conversion of Dollars into such currency
or such currency into Dollars); provided that if there shall at any time no longer exist
such a page on such service, the spot rate of exchange shall be determined by reference to another
similar rate publishing service selected by the Administrative Agent and reasonably acceptable to
the Company.




          “Subject Transaction” as defined in Section 6.7(d).




          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed to be outstanding.




          “Swing Line Lender” means JPMorgan Chase Bank, N.A. in its capacity as Swing Line Lender
hereunder, together with its permitted successors and assigns in such capacity.




          “Swing Line Loan” means a Loan made by Swing Line Lender to the Company pursuant to Section
2.3.




          “Swing Line Note” means a promissory note in the form of Exhibit B-4, as it may be amended,
supplemented or otherwise modified from time to time.




          “Swing Line Sublimit” means the lesser of (i) $5,000,000, and (ii) the aggregate unused amount
of Revolving Commitments then in effect.




          “Syndication Agent” as defined in the preamble hereto.




30









 








          “TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer payment system is open for settlement of payments in Euro.




          “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature and whatever called (including interest, fines, penalties or additions
to tax), by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; provided, “Tax on the overall net income” of a Person means any income taxes,
branch profit taxes, franchise taxes or gross receipt taxes, in each case imposed on such Person’s
net income and imposed by the jurisdiction in which that Person is organized or in which that
Person’s applicable principal office (and/or, in the case of a Lender, its lending office) is
located or in which that Person (and/or, in the case of a Lender, its lending office) is deemed to
be doing business.




          “Terminated Lender” as defined in Section 2.23.




          “Title Policy” as defined in Section 3.1(h).




          “Total Utilization of Revolving Commitments” means, as at any date of determination, the sum
of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving
Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing Issuing Bank
for any amount drawn under any Letter of Credit, but not yet so applied), (ii) the aggregate
principal amount of all outstanding Swing Line Loans, and (iii) the Letter of Credit Usage.




          “Transaction Costs” means the fees, costs, premiums, penalties and expenses payable by
Holdings, the Company or any of the Company’s Subsidiaries on or before the Closing Date in
connection with the consummation of the Recapitalization and the other transactions contemplated
by, or entered into by the Company as a direct result of the execution of, the Credit Documents,
including without limitation, Holdings’ consent solicitation offer to purchase the Existing
Subordinated Notes.




          “Type of Loan” means (i) with respect to either First Lien Term Loans or Revolving Loans, a
Base Rate Loan or a Eurocurrency Rate Loan, and (ii) with respect to Swing Line Loans, a Base Rate
Loan.




          “UCC” means the Uniform Commercial Code as in effect in the State of New York or, with respect
to perfection, priority or enforcement where such matters are mandatorily governed by the law of a
State other than the State of New York, the uniform commercial code as defined in such other law.




          “Unadjusted Eurocurrency Rate Component” means that component of the interest costs to the
Company in respect of a Eurocurrency Rate Loan that is based upon the rate obtained pursuant to
clause (i) of the definition of Adjusted Eurocurrency Rate.




          “Unpaid Refinancing Amount” as defined in Section 3.1(e).




31









 








     1.2. Accounting Terms. Except as otherwise expressly provided herein, all accounting terms
not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.
Financial statements and other information required to be delivered by the Company to Lenders
pursuant to Section 5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in
effect at the time of such preparation (and delivered together with the reconciliation statements
provided for in Section 5.1(e), if applicable). Subject to the foregoing, calculations in
connection with the definitions, covenants and other provisions hereof shall utilize accounting
principles and policies in conformity with those used to prepare the Historical Financial
Statements.



     1.3. Interpretation, etc. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference. References herein to
any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the
word “include” or “including”, when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not non limiting
language (such as “without limitation” or “but not limited to” or words of similar import) is used
with reference thereto, but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.



SECTION 2. LOANS AND LETTERS OF CREDIT




     2.1. First Lien Term Loans.



          (a) Loan Commitments. Subject to the terms and conditions hereof





          (i) each Lender with a First Lien US Term Loan Commitment severally agrees to make, on
the Closing Date, a First Lien US Term Loan to the Company in Dollars in an amount equal to
such Lender’s First Lien US Term Loan Commitment; and




          (ii) each Lender with a First Lien European Term Loan Commitment severally agrees to
make, on the Closing Date, a First Lien European Term Loan to the Company in Euro in an
amount equal to such Lender’s First Lien European Term Loan Commitment.




The Company may make only one borrowing under each of the First Lien US Term Loan Commitment
and the First Lien European Term Loan Commitment which shall be on the Closing Date. Any
amount borrowed under this Section 2.1(a) and subsequently repaid
or prepaid may not be reborrowed. Subject to Sections 2.13(a) and 2.14, all amounts owed
hereunder with respect to the First Lien US Term Loans and the First Lien European Term
Loans shall be paid in full no later than the First Lien US Term Loan Maturity Date and the
First Lien European Term Loan Maturity Date, respectively. Each Lender’s First Lien US Term
Loan Commitment and First Lien European Term Loan Commitment shall terminate immediately and
without further action on the Closing Date after giving effect to the funding of such
Lender’s First Lien US Term Loan Commitment and First Lien European Term Loan Commitment on
such date.



32









 





          (b) Borrowing Mechanics for First Lien Term Loans.





          (i) The Company shall deliver to Administrative Agent a fully executed Funding Notice
no later than one day prior to the Closing Date. Promptly upon receipt by Administrative
Agent of such Funding Notice, Administrative Agent shall notify each Lender of the proposed
borrowing.




          (ii) Each Lender shall make its First Lien US Term Loan and/or First Lien European Term
Loan, as the case may be, available to Administrative Agent not later than 12:00 p.m. (New
York City time) on the Closing Date, by wire transfer of same day funds in Dollars or Euro,
as applicable, at the Principal Office designated by Administrative Agent. Upon
satisfaction or waiver of the conditions precedent specified herein, Administrative Agent
shall make the proceeds of (a) the First Lien US Term Loans available to the Company on the
Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of all
such Loans received by Administrative Agent from Lenders to be credited to the account of
the Company at the Principal Office designated by Administrative Agent or to such other
account as may be designated in writing to Administrative Agent by the Company and (b) the
First Lien European Term Loans available to the Company on the Closing Date by causing an
amount of same day funds in Euro equal to the proceeds of all such Loans received by the
Administrative Agent from Lenders to be credited to the account of the Company at the
Principal Office designated by the Administrative Agent or to such other account as may be
designated in writing to Administrative Agent by the Company.



     2.2. Revolving Loans.



          (a) Revolving Commitments. During the Revolving Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make Revolving Loans to the Company in
an aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided,
that after giving effect to the making of any Revolving Loans in no event shall the Total
Utilization of Revolving Commitments exceed the Revolving Commitments then in effect. Amounts
borrowed pursuant to this Section 2.2(a) may be repaid and reborrowed during the Revolving
Commitment Period. Each Lender’s Revolving Commitment shall expire on the Revolving Commitment
Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the
Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.




          (b) Borrowing Mechanics for Revolving Loans.





          (i) Except pursuant to 2.4(d), Revolving Loans that are Base Rate Loans shall be made
in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of
that amount, and Revolving Loans that are Eurocurrency Rate Loans shall be in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount.




          (ii) Whenever the Company desires that Lenders make Revolving Loans, the Company shall
deliver to Administrative Agent a fully executed and delivered



33









 






Funding Notice no later than
12:00 p.m. (New York City time) at least three Business Days in advance of the proposed
Credit Date in the case of a Eurocurrency Rate Loan, and at least one Business Day in
advance of the proposed Credit Date in the case of a Revolving Loan that is a Base Rate
Loan. Except as otherwise provided herein, a Funding Notice for a Revolving Loan that is a
Eurocurrency Rate Loan shall be irrevocable on and after the related Interest Rate
Determination Date, and the Company shall be bound to make a borrowing in accordance
therewith.




          (iii) Notice of receipt of each Funding Notice in respect of Revolving Loans, together
with the amount of each Lender’s Pro Rata Share thereof, if any, together with the
applicable interest rate, shall be provided by Administrative Agent to each applicable
Lender by telefacsimile with reasonable promptness, but (provided Administrative Agent shall
have received such notice by 12:00 p.m. (New York City time)) not later than 2:00 p.m. (New
York City time) on the same day as Administrative Agent’s receipt of such Notice from the
Company.




          (iv) Each Lender shall make the amount of its Revolving Loan available to
Administrative Agent not later than 12:00 p.m. (New York City time) on the applicable Credit
Date by wire transfer of same day funds in Dollars, at the Principal Office designated by
Administrative Agent. Except as provided herein, upon satisfaction or waiver of the
conditions precedent specified herein, Administrative Agent shall make the proceeds of such
Revolving Loans available to the Company on the applicable Credit Date by causing an amount
of same day funds in Dollars equal to the proceeds of all such
Revolving Loans received by Administrative Agent from Lenders to be credited to the
account of the Company at the Principal Office designated by Administrative Agent or such
other account as may be designated in writing to Administrative Agent by the Company.



     2.3. Swing Line Loans.



          (a) Swing Line Loans Commitments. During the Revolving Commitment Period, subject to
the terms and conditions hereof, Swing Line Lender hereby agrees to make Swing Line Loans to the
Company in the aggregate amount up to but not exceeding the Swing Line Sublimit; provided,
that after giving effect to the making of any Swing Line Loan, in no event shall the Total
Utilization of Revolving Commitments exceed the Revolving Commitments then in effect. Amounts
borrowed pursuant to this Section 2.3 may be repaid and reborrowed during the Revolving Commitment
Period. Swing Line Lender’s Revolving Commitment shall expire on the Revolving Commitment
Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the
Swing Line Loans and the Revolving Commitments shall be paid in full no later than such date.




          (b) Borrowing Mechanics for Swing Line Loans.





          (i) Swing Line Loans shall be made in an aggregate minimum amount of $100,000 and
integral multiples of $50,000 in excess of that amount.



34









 






          (ii) Whenever the Company desires that Swing Line Lender make a Swing Line Loan, the
Company shall deliver to Administrative Agent a Funding Notice no later than 12:00 p.m. (New
York City time) on the proposed Credit Date.




          (iii) Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 p.m.(New York City time) on the applicable Credit
Date by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal
Office. Except as provided herein, upon satisfaction or waiver of the conditions precedent
specified herein, Administrative Agent shall make the proceeds of such Swing Line Loans
available to the Company on the applicable Credit Date by causing an amount of same day
funds in Dollars equal to the proceeds of all such Swing Line Loans received by
Administrative Agent from Swing Line Lender to be credited to the account of the Company at
Administrative Agent’s Principal Office, or to such other account as may be designated in
writing to Administrative Agent by the Company.




          (iv) With respect to any Swing Line Loans which have not been voluntarily prepaid by
the Company pursuant to Section 2.13, Swing Line Lender may at any time in its sole and
absolute discretion, deliver to Administrative Agent (with a copy to the Company), no later
than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed
Credit Date, a notice (which shall be deemed to be a Funding Notice given by the Company)
requesting that each Lender holding a Revolving Commitment make Revolving Loans that are
Base Rate Loans to the Company on such Credit Date in an amount equal to such Lender’s Pro
Rata Share of the amount of such
Swing Line Loans (the “Refunded Swing Line Loans") outstanding on the date such notice
is given which Swing Line Lender requests Lenders to prepay. Anything contained in this
Agreement to the contrary notwithstanding, (1) the proceeds of such Revolving Loans made by
the Lenders other than Swing Line Lender shall be immediately delivered by Administrative
Agent to Swing Line Lender (and not to the Company) and applied to repay a corresponding
portion of the Refunded Swing Line Loans and (2) on the day such Revolving Loans are made,
Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be
paid with the proceeds of a Revolving Loan made by Swing Line Lender to the Company, and
such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as
Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender
but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans to the
Company and shall be due under the Revolving Loan Note issued by the Company to Swing Line
Lender. The Company hereby authorizes Administrative Agent and Swing Line Lender to charge
the Company’s accounts with Administrative Agent and Swing Line Lender (up to the amount
available in each such account) in order to immediately pay Swing Line Lender the amount of
the Refunded Swing Line Loans to the extent of the proceeds of such Revolving Loans made by
Lenders, including the Revolving Loans deemed to be made by Swing Line Lender, are not
sufficient to repay in full the Refunded Swing Line Loans. If any portion of any such
amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf
of the Company from Swing Line Lender in bankruptcy, by assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered shall be ratably shared among
all Lenders in the manner contemplated by Section 2.17.



35









 






          (v) If for any reason Revolving Loans are not made pursuant to Section 2.3(b)(iv) in an
amount sufficient to repay any amounts owed to Swing Line Lender in respect of any
outstanding Swing Line Loans on or before the third Business Day after demand for payment
thereof by Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed to,
and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans,
and in an amount equal to its Pro Rata Share of the applicable unpaid amount together with
accrued interest thereon. Upon one Business Day’s notice from Swing Line Lender, each
Lender holding a Revolving Commitment shall deliver to Swing Line Lender an amount equal to
its respective participation in the applicable unpaid amount in same day funds at the
Principal Office of Swing Line Lender. In order to evidence such participation each Lender
holding a Revolving Commitment agrees to enter into a participation agreement at the request
of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In
the event any Lender holding a Revolving Commitment fails to make available to Swing Line
Lender the amount of such Lender’s participation as provided in this paragraph, Swing Line
Lender shall be entitled to recover such amount on demand from such Lender together with
interest thereon for three Business Days at the rate customarily used by Swing Line Lender
for the correction of errors among banks and thereafter at the Base Rate, as applicable.




          (vi) Notwithstanding anything contained herein to the contrary, (1) each Lender’s
obligation to make Revolving Loans for the purpose of repaying any Refunded
Swing Line Loans pursuant to the second preceding paragraph and each Lender’s
obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the
immediately preceding paragraph shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against Swing Line Lender, any
Credit Party or any other Person for any reason whatsoever; (B) the occurrence or
continuation of a Default or Event of Default; (C) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects of any
Credit Party; (D) any breach of this Agreement or any other Credit Document by any party
thereto; or (E) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing; provided that such obligations of each Lender are
subject to the condition that Swing Line Lender believed in good faith that all conditions
under Section 3.2 to the making of the applicable Refunded Swing Line Loans or other unpaid
Swing Line Loans, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing
Line Loans were made, or the satisfaction of any such condition not satisfied had been
waived by the Requisite Lenders prior to or at the time such Refunded Swing Line Loans or
other unpaid Swing Line Loans were made; and (2) Swing Line Lender shall not be obligated to
make any Swing Line Loans (A) if it has elected not to do so after the occurrence and during
the continuation of a Default or Event of Default or (B) at a time when a Funding Default
exists unless Swing Line Lender has entered into arrangements satisfactory to it and the
Company to eliminate Swing Line Lender’s risk with respect to the Defaulting Lender’s
participation in such Swing Ling Loan, including by cash collateralizing such Defaulting
Lender’s Pro Rata Share of the outstanding Swing Line Loans.



36









 





     2.4. Issuance of Letters of Credit and Purchase of Participations Therein.



          (a) Letters of Credit. During the Revolving Commitment Period, subject to the terms
and conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account of the
Company in the aggregate amount up to but not exceeding the Letter of Credit Sublimit;
provided, (i) each Letter of Credit shall be denominated in Dollars; (ii) the stated amount
of each Letter of Credit shall not be less than $25,000 or such lesser amount as is acceptable to
Issuing Bank; (iii) after giving effect to such issuance, in no event shall the Total Utilization
of Revolving Commitments exceed the Revolving Commitments then in effect; (iv) after giving effect
to such issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit
then in effect; (v) in no event shall any standby Letter of Credit have an expiration date later
than the earlier of (1) the Revolving Commitment Termination Date and (2) the date which is one
year from the date of issuance of such standby Letter of Credit; and (vi) in no event shall any
commercial Letter of Credit (x) have an expiration date later than the earlier of (1) the Revolving
Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of
such commercial Letter of Credit or (b) be issued if such commercial Letter of Credit is otherwise
unacceptable to Issuing Bank in its reasonable discretion. Subject to the foregoing, Issuing Bank
may agree that a standby Letter of Credit will automatically be extended for one or more successive
periods not to exceed one year each, unless Issuing Bank elects not to extend for any such
additional period; provided, Issuing Bank shall not extend any such Letter of Credit if it
has received written notice that an Event of Default has occurred and is continuing at
the time Issuing Bank must elect to allow such extension; provided, further,
in the event a Funding Default exists, Issuing Bank shall not be required to issue any Letter of
Credit unless Issuing Bank has entered into arrangements satisfactory to it and the Company to
eliminate Issuing Bank’s risk with respect to the participation in Letters of Credit of the
Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the
Letter of Credit Usage. On the Closing Date, the Existing Letters of Credit will be deemed to be
Letters of Credit under this Agreement for all purposes.




          (b) Notice of Issuance. Whenever the Company desires the issuance of a Letter of
Credit, it shall deliver to Administrative Agent an Issuance Notice no later than 12:00 p.m. (New
York City time) at least three Business Days (in the case of standby letters of credit) or five
Business Days (in the case of commercial letters of credit), or in each case such shorter period as
may be agreed to by Issuing Bank in any particular instance, in advance of the proposed date of
issuance. Upon satisfaction or waiver of the conditions set forth in Section 3.2, Issuing Bank
shall issue the requested Letter of Credit only in accordance with Issuing Bank’s standard
operating procedures. Upon the issuance of any Letter of Credit or amendment or modification to a
Letter of Credit, Issuing Bank shall promptly notify each Lender of such issuance, which notice
shall be accompanied by a copy of such Letter of Credit or amendment or modification to a Letter of
Credit and the amount of such Lender’s respective participation in such Letter of Credit pursuant
to Section 2.4(e).




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




37









 







Company and
Issuing Bank, the Company assumes all risks of the acts and omissions of, or misuse of the Letters
of Credit issued by Issuing Bank, by the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, Issuing Bank shall not be responsible for: (i)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of any such Letter of Credit, even if
it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make a drawing under
any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary
of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii)
any consequences arising from causes beyond the control of Issuing Bank, including any Governmental
Acts; none of the above shall affect or impair, or prevent the vesting of, any of Issuing Bank’s
rights or powers hereunder. Without limiting the foregoing and in furtherance thereof, any action
taken or omitted by Issuing Bank under or in connection with the Letters of Credit or any documents
and certificates delivered thereunder, if
taken or omitted in good faith, shall not give rise to any liability on the part of Issuing
Bank to the Company. Notwithstanding anything to the contrary contained in this Section 2.4(c),
the Company shall retain any and all rights it may have against Issuing Bank for any liability
arising solely out of the bad faith, gross negligence or willful misconduct of Issuing Bank.




          (d) Reimbursement by the Company of Amounts Drawn or Paid Under Letters of Credit. In
the event Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall
immediately notify the Company and Administrative Agent, and the Company shall reimburse Issuing
Bank on or before the Business Day immediately following the date on which such drawing is honored
(the “Reimbursement Date") in an amount in Dollars and in same day funds equal to the amount of
such honored drawing; provided, anything contained herein to the contrary notwithstanding,
(i) unless the Company shall have notified Administrative Agent and Issuing Bank prior to 12:00
p.m. (New York City time) on the date such drawing is honored that the Company intends to reimburse
Issuing Bank for the amount of such honored drawing with funds other than the proceeds of Revolving
Loans, the Company shall be deemed to have given a timely Funding Notice to Administrative Agent
requesting Lenders to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an
amount in Dollars equal to the amount of such honored drawing, and (ii) subject to satisfaction or
waiver of the conditions specified in Section 3.2, Lenders shall, on the Reimbursement Date, make
Revolving Loans that are Base Rate Loans in the amount of such honored drawing, the proceeds of
which shall be applied directly by Administrative Agent to reimburse Issuing Bank for the amount of
such honored drawing; and provided further, if for any reason proceeds of Revolving
Loans are not received by Issuing Bank on the Reimbursement Date in an amount equal to the amount
of such honored drawing, the Company shall reimburse Issuing Bank, on demand, in an amount in same
day funds equal to the excess of the amount of such honored drawing over the aggregate amount of
such Revolving Loans, if any, which are so received. Nothing in this Section 2.4(d) shall be




38









 







deemed to relieve any Lender from its obligation to make Revolving Loans on the terms and
conditions set forth herein, and the Company shall retain any and all rights it may have against
any Lender resulting from the failure of such Lender to make such Revolving Loans under this
Section 2.4(d).




          (e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the
issuance of each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to
have purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a participation in
such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro
Rata Share (with respect to the Revolving Commitments) of the maximum amount which is or at any
time may become available to be drawn thereunder. In the event that the Company shall fail for any
reason to reimburse Issuing Bank as provided in Section 2.4(d), Issuing Bank shall promptly notify
each Lender of the unreimbursed amount of such honored drawing and of such Lender’s respective
participation therein based on such Lender’s Pro Rata Share of the Revolving Commitments. Each
Lender shall make available to Issuing Bank an amount equal to its respective participation, in
Dollars and in same day funds, at the office of Issuing Bank specified in such notice, not later
than 12:00 p.m. (New York City time) on the first business day (under the laws of the jurisdiction
in which such office of Issuing Bank is located) after the date notified by Issuing Bank. In the
event that any Lender fails to make available to Issuing Bank on such business day the amount of
such Lender’s participation in such Letter of Credit as provided in this Section 2.4(e), Issuing
Bank shall be entitled to recover such amount
on demand from such Lender together with interest thereon for three Business Days at the rate
customarily used by Issuing Bank for the correction of errors among banks and thereafter at the
Base Rate. Nothing in this Section 2.4(e) shall be deemed to prejudice the right of any Lender to
recover from Issuing Bank any amounts made available by such Lender to Issuing Bank pursuant to
this Section in the event that it is determined that the payment with respect to a Letter of Credit
in respect of which payment was made by such Lender constituted bad faith, gross negligence or
willful misconduct on the part of Issuing Bank. In the event Issuing Bank shall have been
reimbursed by other Lenders pursuant to this Section 2.4(e) for all or any portion of any drawing
honored by Issuing Bank under a Letter of Credit, such Issuing Bank shall distribute to each Lender
which has paid all amounts payable by it under this Section 2.4(e) with respect to such honored
drawing such Lender’s Pro Rata Share of all payments subsequently received by Issuing Bank from the
Company in reimbursement of such honored drawing when such payments are received. Any such
distribution shall be made to a Lender at its primary address set forth below its name on Appendix
B or at such other address as such Lender may request.




          (f) Obligations Absolute. The obligation of the Company to reimburse Issuing Bank for
drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by
Lenders pursuant to Section 2.4(d) and the obligations of Lenders under Section 2.4(e) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other
right which the Company or any Lender may have at any time against a beneficiary or any transferee
of any Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing Bank,
Lender or any other Person or, in the case of a Lender, against the Company, whether in connection
herewith, the transactions contemplated herein or any unrelated transaction (including any
underlying transaction between the Company or one of




39









 







its Subsidiaries and the beneficiary for which
any Letter of Credit was procured); (iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; (iv) payment by Issuing Bank under any Letter of
Credit against presentation of a draft or other document which does not substantially comply with
the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Holdings or any of its Subsidiaries;
(vi) any material breach hereof or any other Credit Document by any party thereto; (vii) any other
circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the
fact that an Event of Default or a Default shall have occurred and be continuing; provided,
in each case, that payment by Issuing Bank under the applicable Letter of Credit shall not have
constituted bad faith, gross negligence or willful misconduct of Issuing Bank under the
circumstances in question.




          (g) Indemnification. Without duplication of any obligation of the Company under
Section 10.2 or 10.3, in addition to amounts payable as provided herein, the Company hereby agrees
to protect, indemnify, pay and save harmless Issuing Bank from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including reasonable fees,
expenses and disbursements of counsel and allocated costs of internal counsel) which Issuing Bank
may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter
of Credit by Issuing Bank, other than as a result of (1) the bad faith, gross negligence or willful
misconduct of Issuing Bank or (2) the wrongful dishonor by Issuing Bank
of a proper demand for payment made under any Letter of Credit issued by it, or (ii) the
failure of Issuing Bank to honor a drawing under any such Letter of Credit as a result of any
Governmental Act.




     2.5. Pro Rata Shares; Availability of Funds.



          (a) Pro Rata Shares. All Loans shall be made, and all participations purchased, by
Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood
that no Lender shall be responsible for any default by any other Lender in such other Lender’s
obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall
any First Lien Term Loan Commitment or any Revolving Commitment of any Lender be increased or
decreased as a result of a default by any other Lender in such other Lender’s obligation to make a
Loan requested hereunder or purchase a participation required hereby.




          (b) Availability of Funds. Unless Administrative Agent shall have been notified by
any Lender prior to the applicable Credit Date that such Lender does not intend to make available
to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date,
Administrative Agent may assume that such Lender has made such amount available to Administrative
Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be
obligated to, make available to the Company a corresponding amount on such Credit Date. If such
corresponding amount is not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Credit Date until the date such
amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and




40









 







thereafter at the Base Rate. If such
Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand
therefor, Administrative Agent shall promptly notify the Company and the Company shall immediately
pay such corresponding amount to Administrative Agent together with interest thereon, for each day
from such Credit Date until the date such amount is paid to Administrative Agent, at the rate
payable hereunder for Base Rate Loans for such Class of Loans. Nothing in this Section 2.5(b)
shall be deemed to relieve any Lender from its obligation to fulfill its First Lien Term Loan
Commitments and Revolving Commitments hereunder or to prejudice any rights that the Company may
have against any Lender as a result of any default by such Lender hereunder.




     2.6. Use of Proceeds. The proceeds of the First Lien Term Loans made on the Closing Date,
together with the proceeds of loans to be made under the Second Lien Term Facility, shall be
applied by the Company solely to consummate the Recapitalization and pay Transaction Costs. The
proceeds of the Revolving Loans, Swing Line Loans and Letters of Credit made after the Closing Date
shall be applied by the Company to permitted capital expenditures and Permitted Acquisitions and
the payment of transaction fees and expenses related thereto, working capital requirements and
general corporate purposes. No portion of the proceeds of any Credit Extension shall be used in
any manner that causes or might cause such Credit Extension or the application of such proceeds
to violate Regulation T, Regulation U or Regulation X of the Board of Governors or any other
regulation thereof or to violate the Exchange Act.



     2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes.



          (a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an
account or accounts evidencing the Obligations of the Company to such Lender, including the amounts
of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation
shall be conclusive and binding on the Company, absent manifest error; provided, that the
failure to make any such recordation, or any error in such recordation, shall not affect any
Lender’s Revolving Commitments or the Company’s Obligations in respect of any applicable Loans; and
provided further, in the event of any inconsistency between the Register and any
Lender’s records, the recordations in the Register shall govern.




          (b) Register. Administrative Agent (or its agent or sub-agent appointed by it) shall
maintain at the Principal Office a register for the recordation of the names and addresses of
Lenders and the Revolving Commitments and Loans of each Lender from time to time (the “Register").
The Register, as in effect at the close of business on the preceding Business Day, shall be
available for inspection by the Company or any Lender at any reasonable time and from time to time
upon reasonable prior notice. Administrative Agent shall record, or shall cause to be recorded, in
the Register the Revolving Commitments and the Loans in accordance with the provisions of Section
10.6, and each repayment or prepayment in respect of the principal amount of the Loans, and any
such recordation shall be conclusive and binding on the Company and each Lender, absent manifest
error; provided, failure to make any such recordation, or any error in such recordation,
shall not affect any Lender’s Revolving Commitments or the Company’s Obligations in respect of any
Loan. The Company hereby designates GSCP to serve as the Company’s agent solely for purposes of
maintaining the Register as provided in this Section 2.7, and the Company hereby agrees that, to
the extent GSCP serves in such capacity, GSCP and its officers, directors, employees, agents,
sub-agents and affiliates shall constitute “Indemnitees.”




41









 








          (c) Notes. If so requested by any Lender by written notice to the Company (with a
copy to Administrative Agent) at least two Business Days prior to the Closing Date, or at any time
thereafter, the Company shall execute and deliver to such Lender (and/or, if applicable and if so
specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6)
on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after the
Company’s receipt of such notice) a Note or Notes to evidence such Lender’s First Lien US Term
Loan, First Lien European Term Loan, New First Lien Term Loan, Revolving Loan or Swing Line Loan,
as the case may be.




     2.8. Interest on Loans.



          (a) Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof as follows:





          (i) in the case of Revolving Loans:




               (1) if a Base Rate Loan, at the Base Rate plus the
Applicable Margin; or




               (2) if a Eurocurrency Rate Loan, at the Adjusted
Eurocurrency Rate plus the Applicable Margin;




          (ii) in the case of First Lien US Term Loans:




               (1) if a Base Rate Loan, at the Base Rate plus
1.50% per annum; or




               (2) if a Eurocurrency Rate Loan, at the Adjusted
Eurocurrency Rate plus 2.50% per annum.




          (iii) in the case of First Lien European Term Loans, at the Adjusted Eurocurrency Rate
plus 2.50% per annum; and




          (iv) in the case of Swing Line Loans, at the Base Rate plus the Applicable Margin.



          (b) The basis for determining the rate of interest with respect to any Loan (except a Swing
Line Loan which can be made and maintained as Base Rate Loans only), and the Interest Period with
respect to any Eurocurrency Rate Loan, shall be selected by the Company and notified to
Administrative Agent and Lenders pursuant to the applicable Funding Notice or
Conversion/Continuation Notice, as the case may be; provided, the First Lien US Term Loans
initially shall be made as Base Rate Loans until the earlier of (i) the date which is 10 days
following the Closing Date and (ii) the date that Syndication Agent notifies the Company that the
primary syndication of the Loans and Revolving Commitments has been completed. If on any day a
Loan is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has
not been delivered to Administrative Agent in accordance with the terms hereof specifying the
applicable basis for determining the rate of interest, then for that day such Loan




42









 







shall be a Base
Rate Loan if such Loan is denominated in Dollars or a Eurocurrency Loan with an Interest Period of
one month if such Loan is denominated in Euro.




          (c) In connection with Eurocurrency Rate Loans there shall be no more than six (6) Interest
Periods outstanding at any time. In the event the Company fails to specify between a Base Rate
Loan or a Eurocurrency Rate Loan in the applicable Funding Notice or Conversion/Continuation
Notice, such Loan (if outstanding as a Eurocurrency Rate Loan) will be automatically converted into
a Base Rate Loan on the last day of the then-current Interest Period for such Loan (or if
outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a
Base Rate Loan). In the event the Company fails to specify an Interest Period for any Eurocurrency
Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, the Company shall be
deemed to have selected an Interest Period of one month. As soon as practicable after 10:00 a.m.
(New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine
(which determination shall, absent manifest error, be final, conclusive and binding upon all
parties) the interest rate that shall apply to the Eurocurrency
Rate Loans for which an interest rate is then being determined for the applicable Interest
Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to
the Company and each Lender.




          (d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate
Loans on the basis of a 365-day or 366-day year, as the case may be, and (ii) in the case of
Eurocurrency Rate Loans, on the basis of a 360-day year, in each case for the actual number of days
elapsed in the period during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect
to a First Lien Term Loan or a New First Lien Term Loan, the last Interest Payment Date with
respect to such First Lien Term Loan or such New First Lien Term Loan, or, with respect to a Base
Rate Loan being converted from a Eurocurrency Rate Loan, the date of conversion of such
Eurocurrency Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date
of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted to a Eurocurrency Rate Loan, the date of
conversion of such Base Rate Loan to such Eurocurrency Rate Loan, as the case may be, shall be
excluded; provided, if a Loan is repaid on the same day on which it is made, one day’s
interest shall be paid on that Loan.




          (e) Except as otherwise set forth herein, interest on each Loan (i) with respect to Revolving
Loans, shall accrue on a daily basis and shall be payable in arrears on each Interest Payment Date
with respect to interest accrued on and to each such payment date; (ii) with respect to First Lien
Term Loans and New First Lien Term Loans, as applicable, shall accrue on a daily basis on and to
the March 31st, June 30th, September 30th and December
31st most recently ended prior to such payment date and shall be payable in arrears on
each Interest Payment Date; (iii) shall accrue on a daily basis and shall be payable in arrears
upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the
amount being prepaid; and (iv) shall accrue on a daily basis and shall be payable in arrears at
maturity of the Loans, including final maturity of the Loans; provided, however, with
respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be payable
on the applicable Interest Payment Date.




43









 








          (f) The Company agrees to pay to Issuing Bank, with respect to drawings honored under any
Letter of Credit, interest on the amount paid by Issuing Bank in respect of each such honored
drawing from the date such drawing is honored to but excluding the date such amount is reimbursed
by or on behalf of the Company at a rate equal to (i) for the period from the date such drawing is
honored to but excluding the applicable Reimbursement Date, the rate of interest otherwise payable
hereunder with respect to Revolving Loans that are Base Rate Loans, and (ii) thereafter, a rate
which is 2% per annum in excess of the rate of interest otherwise payable hereunder with respect to
Revolving Loans that are Base Rate Loans.




          (g) Interest payable pursuant to Section 2.8(f) shall be computed on the basis of a
365/366-day year for the actual number of days elapsed in the period during which it accrues, and
shall be payable on demand or, if no demand is made, on the date on which the related drawing under
a Letter of Credit is reimbursed in full. Promptly upon receipt by Issuing Bank of any payment of
interest pursuant to Section 2.8(f), Issuing Bank shall distribute to each Lender, out of the
interest received by Issuing Bank in respect of the period from the date such drawing is
honored to but excluding the date on which Issuing Bank is reimbursed for the amount of such
drawing (including any such reimbursement out of the proceeds of any Revolving Loans), the amount
that such Lender would have been entitled to receive in respect of the letter of credit fee that
would have been payable in respect of such Letter of Credit for such period if no drawing had been
honored under such Letter of Credit. In the event Issuing Bank shall have been reimbursed by
Lenders for all or any portion of such honored drawing, Issuing Bank shall distribute to each
Lender which has paid all amounts payable by it under Section 2.4(e) with respect to such honored
drawing such Lender’s Pro Rata Share of any interest received by Issuing Bank in respect of that
portion of such honored drawing so reimbursed by Lenders for the period from the date on which
Issuing Bank was so reimbursed by Lenders to but excluding the date on which such portion of such
honored drawing is reimbursed by the Company.




     2.9. Conversion/Continuation.



          (a) Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred
and then be continuing, the Company shall have the option:





          (i) to convert at any time all or any part of any First Lien Term Loan in Dollars or
Revolving Loan equal to $500,000 and integral multiples of $100,000 in excess of that amount
from one Type of Loan to another Type of Loan; provided, a Eurocurrency Rate Loan
may only be converted on the expiration of the Interest Period applicable to such
Eurocurrency Rate Loan unless the Company shall pay all amounts due under Section 2.18 in
connection with any such conversion; or




          (ii) upon the expiration of any Interest Period applicable to any Eurocurrency Rate
Loan, to continue all or any portion of such Loan equal to $500,000 or €500,000, as the case
may be and integral multiples of $100,000 or €100,000, as the case may be, in excess of that
amount as a Eurocurrency Rate Loan.



          (b) The Company shall deliver a Conversion/Continuation Notice to Administrative Agent no
later than 12:00 p.m. (New York City time) at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to a Base Rate Loan) and at least




44









 







three Business Days
in advance of the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurocurrency Rate Loan). Except as otherwise provided herein, a
Conversion/Continuation Notice for conversion to, or continuation of, any Eurocurrency Rate Loans
(or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and the Company shall be bound to effect a conversion or continuation in
accordance therewith.




     2.10. Default Interest. Upon the occurrence and during the continuance of an Event of Default
under Section 8.1(a), the principal amount of all Loans outstanding and, to the extent permitted by
applicable law, any interest payments on the Loans or any fees or other amounts, in each case not
paid when due, shall thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand at a rate that is
2% per annum in excess of the interest rate otherwise payable hereunder with respect to the
applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2%
per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans);
provided, in the case of Eurocurrency Rate Loans, upon the expiration of the Interest
Period in effect at the time any such increase in interest rate is effective such Eurocurrency Rate
Loans shall thereupon become Base Rate Loans and shall thereafter bear interest payable upon demand
at a rate which is 2% per annum in excess of the interest rate otherwise payable hereunder for Base
Rate Loans. Payment or acceptance of the increased rates of interest provided for in this Section
2.10 is not a permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or
any Lender.



     2.11. Fees.



          (a) The Company agrees to pay to Lenders having Revolving Exposure:





          (i) commitment fees equal to (1) the average of the daily difference between (a) the
Revolving Commitments and (b) the aggregate principal amount of all outstanding Revolving
Loans, Letter of Credit Usage and Swing Line Loans, times (2) the Applicable Revolving
Commitment Fee Percentage; and




          (ii) letter of credit fees equal to (1) the Applicable Margin for Revolving Loans that
are Eurocurrency Rate Loans, times (2) the average aggregate daily maximum amount available
to be drawn under all such Letters of Credit (regardless of whether any conditions for
drawing could then be met and determined as of the close of business on any date of
determination).


All fees referred to in this Section 2.11(a) shall be paid to Administrative Agent at its Principal
Office and upon receipt, Administrative Agent shall promptly distribute to each Lender its Pro Rata
Share thereof.




          (b) The Company agrees to pay directly to Issuing Bank, for its own account, the following
fees:




45









 









          (i) a fronting fee equal to 0.25%, per annum, times the average aggregate daily maximum
amount available to be drawn under all Letters of Credit (determined as of the close of
business on any date of determination); and




          (ii) such documentary and processing charges for any issuance, amendment, transfer or
payment of a Letter of Credit as are in accordance with Issuing Bank’s standard schedule for
such charges and as in effect at the time of such issuance, amendment, transfer or payment,
as the case may be.



          (c) All fees referred to in Section 2.11(a) and 2.11(b)(i) shall be calculated, (i) in the
case of Base Rate Loans on the basis of a 365-day or 366-day year, as the case may be, and (ii) in
the case of Eurocurrency Rate Loans, on the basis of a 360-day year, in each case for the actual
number of days elapsed and shall be payable quarterly in arrears on April 1, July 1, October 1 and
January 1 of each year during the Revolving Commitment Period, commencing on
the first such date to occur after the Closing Date, and on the Revolving Commitment
Termination Date.




          (d) In addition to any of the foregoing fees, the Company agrees to pay to Agents such other
fees in the amounts and at the times separately agreed upon in writing between the Company and the
Agents.




     2.12. Scheduled Payments/Commitment Reductions. (a) Scheduled Installments. The
principal amounts of the First Lien Term Loans shall be repaid in consecutive quarterly
installments (each, an “Installment") of 0.25% of the original aggregate principal amount thereof
(to be proportionally decreased in the event of any prepayments of First Lien Term Loans
hereunder), each on the last day of each Fiscal Quarter (each, an “Installment Date") commencing on
the First Installment Date after the Closing Date; provided, in the event any New First
Lien Term Loans are made, such New First Lien Term Loans shall be repaid on each Installment Date
occurring on or after the applicable Increased Amount Date in an amount equal to (i) the aggregate
principal amount of New First Lien Term Loans of the applicable Series of New First Lien Term
Loans, times (ii) the ratio (expressed as a percentage) of (y) the amount of all other Term Loans
being repaid on such Installment Date and (z) the total aggregate principal amount of all other
Term Loans outstanding on such Increased Amount Date.


Notwithstanding the foregoing, (x) such Installments shall be reduced in connection with any
voluntary or mandatory prepayments of the First Lien US Term Loans or the First Lien European Term
Loans, as the case may be, in accordance with Sections 2.13, 2.14 and 2.15, as applicable; and (y)
the First Lien US Term Loans and the First Lien European Term Loans, together with all other
amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the
First Lien US Term Loan Maturity Date and the First Lien European Term Loan Maturity Date,
respectively.




     2.13. Voluntary Prepayments/Commitment Reductions.



          (a) Voluntary Prepayments.





          (i) Any time and from time to time:



46









 






               (1) with respect to Base Rate Loans, the Company may prepay
any such Loans on any Business Day in whole or in part, in an
aggregate minimum amount of $500,000 and integral multiples of
$100,000 in excess of that amount;




               (2) with respect to Eurocurrency Rate Loans in Dollars, the
Company may prepay any such Loans on any Business Day in whole
or in part in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount;




               (3) with respect to Eurocurrency Rate Loans in Euro, the
Company may prepay any such Loans on any Business Day in whole
or in part in an aggregate minimum amount of €500,000 and
integral multiples of €100,000; and




               (4) with respect to Swing Line Loans, the Company may
prepay any such Loans on any Business Day in whole or in part in
an aggregate minimum amount of $100,000, and in integral
multiples of $50,000 in excess of that amount.




          (ii) All such prepayments shall be made:




               (1) upon not less than one Business Day’s prior written or
telephonic notice in the case of Base Rate Loans;




               (2) upon not less than three Business Days’ prior written
or telephonic notice in the case of Eurocurrency Rate Loans; and




               (3) upon written or telephonic notice on the date of
prepayment, in the case of Swing Line Loans;


in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 12:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly confirmed in writing
to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or
original notice for First Lien Term Loans or Revolving Loans, as the case may be, by telefacsimile
or telephone to each Lender) or Swing Line Lender, as the case may be. Upon the giving of any such
notice, the principal amount of the Loans specified in such notice shall become due and payable on
the prepayment date specified therein; provided, that, notwithstanding anything to the
contrary herein, in the event of a failure to pay the principal amount of the Loans on any
specified prepayment date due to administrative or technical circumstances beyond the control of
the Company, and such payment shall be made no later than




47









 







two (2) Business Days after the
applicable specified prepayment date, such failure to make such payment shall not constitute an
Event of Default. Any such voluntary prepayment shall be applied as specified in Section 2.15(a).




          (b) Voluntary Commitment Reductions.





          (i) The Company may, upon not less than three Business Days’ prior written or
telephonic notice confirmed in writing to Administrative Agent (which original written or
telephonic notice Administrative Agent will promptly transmit by telefacsimile or telephone
to each applicable Lender), at any time and from time to time terminate in whole or
permanently reduce in part, without premium or penalty, the Revolving Commitments in an
amount up to the amount by which the Revolving Commitments exceed the Total Utilization of
Revolving Commitments at the time of such proposed termination or reduction;
provided, any such partial reduction of the Revolving Commitments shall be in an
aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that
amount.




          (ii) The Company’s notice to Administrative Agent shall designate the date (which shall
be a Business Day) of such termination or reduction and the amount of any partial reduction,
and such termination or reduction of the Revolving Commitments shall be effective on the
date specified in the Company’s notice and shall reduce the Revolving Commitment of each
Lender proportionately to its Pro Rata Share thereof.



     2.14. Mandatory Prepayments/Commitment Reductions.



          (a) Asset Sales. No later than the first Business Day following the date of receipt
by the Company or any of its Subsidiaries of any Net Asset Sale Proceeds, the Company shall prepay
the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section
2.15(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, (i) so long
as no Default (if such Default cannot be reasonably expected to be cured within the applicable cure
period) or Event of Default shall have occurred and be continuing, and (ii) to the extent that
aggregate Net Asset Sale Proceeds reinvested in accordance with this Section 2.14(a) through the
applicable date of determination do not exceed $2,500,000, the Company shall have the option,
directly or through one or more of its Subsidiaries, to invest Net Asset Sale Proceeds within two
hundred seventy days of receipt thereof in long-term productive assets of the general type used in
the business of the Company and its Subsidiaries.




          (b) Insurance/Condemnation Proceeds. No later than the first Business Day following
the date of receipt by the Company or any of its Subsidiaries, or Administrative Agent as loss
payee, of any Net Insurance/Condemnation Proceeds, the Company shall prepay the Loans and/or the
Revolving Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate
amount equal to such Net Insurance/Condemnation Proceeds; provided, so long as no Default
(if such Default cannot be reasonably expected to be cured within the applicable cure period) or
Event of Default shall have occurred and be continuing, the Company shall have the option, directly
or through one or more of its Subsidiaries to invest such Net Insurance/Condemnation Proceeds
within one hundred eighty days of receipt thereof in long term productive assets of the general
type used in the business of the Company and its




48









 







Subsidiaries, which investment may include the
repair, restoration or replacement of the applicable assets thereof.




          (c) Issuance of Debt. On the date of receipt by Holdings or any of its Subsidiaries
of any Cash proceeds from the incurrence of any Indebtedness of the Company or any of its
Subsidiaries (other than with respect to any Indebtedness permitted to be incurred pursuant to
Section 6.1), the Company shall prepay the Loans and/or the Revolving Commitments shall be
permanently reduced as set forth in Section 2.15(b) in an aggregate amount equal to 100% of such
proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses.




          (d) Consolidated Excess Cash Flow. In the event that there shall be Consolidated
Excess Cash Flow for any Fiscal Year (commencing with Fiscal Year ending December 31, 2006), the
Company shall, no later than ninety days after the end of such Fiscal Year, prepay the Loans and/or
the Revolving Commitments shall be permanently reduced as set forth in Section 2.15(b) in an
aggregate amount equal to (i) 75% of such Consolidated Excess Cash Flow minus (ii)
voluntary repayments of Consolidated Total Debt (excluding repayments of Revolving Loans or Swing
Line Loans except to the extent the Revolving Commitments are permanently reduced in connection
with such repayments); provided, during any period in which the Leverage Ratio (determined
for any such period by reference to the Compliance Certificate delivered pursuant to Section 5.1(d)
calculating the Leverage Ratio as of the last day of such Fiscal Year) shall be 3.75:1.00 or less,
the Company shall only be required to make the prepayments and/or reductions otherwise required
hereby in an amount equal to 50% of such Consolidated Excess Cash Flow.




          (e) Revolving Loans and Swing Line Loans. The Company shall from time to time prepay
first, the Swing Line Loans, and second, the Revolving Loans to the extent necessary so that the
Total Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments
then in effect.




          (f) Prepayment Certificate. Concurrently with any prepayment of the Loans and/or
reduction of the Revolving Commitments pursuant to Sections 2.14(a) through 2.14(e), the Company
shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the
calculation of the amount of the applicable net proceeds or Consolidated Excess Cash Flow, as the
case may be. In the event that the Company shall subsequently determine that the actual amount
received exceeded the amount set forth in such certificate, the Company shall promptly make an
additional prepayment of the Loans and/or the Revolving Commitments shall be permanently reduced in
an amount equal to such excess, and the Company shall concurrently therewith deliver to
Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such
excess.




     2.15. Application of Prepayments/Reductions.



          (a) Application of Voluntary Prepayments by Type of Loans. Any prepayment of any Loan
pursuant to Section 2.13(a) shall be applied as specified by the Company in the




49









 







applicable notice
of prepayment; provided, in the event the Company fails to specify the Loans to which any
such prepayment shall be applied, such prepayment shall be applied as follows:





          first, to repay outstanding Swing Line Loans to the full extent thereof;




          second, to repay outstanding Revolving Loans on a pro rata basis (in accordance with
the respective outstanding principal amounts thereof) to the full extent thereof; and




          third, to prepay the First Lien US Term Loans, the First Lien European Term Loans and
any New First Lien Term Loans on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof).




          Any prepayment of any First Lien Term Loan or New First Lien Term Loan pursuant to
Section 2.13(a) shall be further applied to the remaining installments in order of maturity
with respect to scheduled Installments. For purposes of determining any pro rata allocation
contemplated under this subsection at any time, the amount of any First Lien European Term
Loan shall be the Dollar Equivalent of the principal amount thereof at such time.



          (b) Application of Mandatory Prepayments by Type of Loans. Any amount required to be
paid pursuant to Sections 2.14(a) through 2.14(e) shall be applied as follows:





          first, to prepay First Lien US Term Loans, First Lien European Term Loans and any New
First Lien Term Loans on a pro rata basis (in accordance with the respective outstanding
principal amounts thereof) and shall be further applied on a pro rata basis to the remaining
scheduled Installments of principal of the First Lien US Term Loans, First Lien European
Term Loans and New First Lien Term Loans;




          second, to prepay the Swing Line Loans to the full extent thereof and to permanently
reduce the Revolving Commitments by the amount of such prepayment;




          third, to prepay the Revolving Loans on a pro rata basis (in accordance with the
respective outstanding principal amounts thereof) to the full extent thereof and to further
permanently reduce the Revolving Commitments by the amount of such prepayment;




          fourth, to prepay outstanding reimbursement obligations with respect to Letters of
Credit and to further permanently reduce the Revolving Loan Commitments by the amount of
such prepayment;




          fifth, to cash collateralize Letters of Credit and to further permanently reduce the
Revolving Loan Commitments by the amount of such cash collateralization; and




          sixth, to further permanently reduce the Revolving Commitments to the full extent
thereof.



50









 






          For purposes of determining any pro rata allocation contemplated under this subsection
at any time, the amount of any First Lien European Term Loan shall be the Dollar Equivalent
of the principal amount thereof at such time.



          (c) Application of Prepayments of Loans to Base Rate Loans and Eurocurrency Rate
Loans. Considering each Class of Loans being prepaid separately, any prepayment thereof shall
be applied first to Base Rate Loans to the full extent thereof before application to Eurocurrency
Rate Loans, in each case in a manner which minimizes the amount of any payments required to be made
by the Company pursuant to Section 2.18(c).




     2.16. General Provisions Regarding Payments.



          (a) All payments by the Company of principal, interest, fees and other Obligations shall be
made in the currency in which such Obligation is denominated (either Dollars or Euro) in same day
funds, without defense, setoff or counterclaim, free of any restriction or condition, and delivered
to Administrative Agent not later than 2:00 p.m. (New York City time) on the date due at the
Principal Office designated by Administrative Agent for the account of Lenders; for purposes of
computing interest and fees, funds received by Administrative Agent after that time on such due
date shall be deemed to have been paid by the Company on the next succeeding Business Day.




          (b) All payments in respect of the principal amount of any Loan (other than voluntary
prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the
principal amount being repaid or prepaid.




          (c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute
to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable
Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together
with all other amounts due thereto, including, without limitation, all fees payable with respect
thereto, to the extent received by Administrative Agent.




          (d) Notwithstanding the foregoing provisions hereof, if any Conversion/ Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any Eurocurrency Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.




          (e) Subject to the provisos set forth in the definition of “Interest Period” as they may apply
to Revolving Loans, whenever any payment to be made hereunder with respect to any Loan shall be
stated to be due on a day that is not a Business Day, such payment shall be made on the next
succeeding Business Day and, with respect to Revolving Loans only, such extension of time shall be
included in the computation of the payment of interest hereunder or of the Revolving Commitment
fees hereunder.




          (f) The Company hereby authorizes Administrative Agent to charge the Company’s accounts with
Administrative Agent in order to cause timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject to sufficient funds being available
in its accounts for that purpose).




51









 








          (g) Administrative Agent shall deem any payment by or on behalf of the Company hereunder that
is not made in same day funds prior to 12:00 p.m. (New York City time) to be a non-conforming
payment. Any such payment shall not be deemed to have been
received by Administrative Agent until the later of (i) the time such funds become available
funds, and (ii) the applicable next Business Day. Administrative Agent shall give prompt
telephonic notice to the Company and each applicable Lender (confirmed in writing) if any payment
is non-conforming. Any non-conforming payment may constitute or become a Default or Event of
Default in accordance with the terms of Section 8.1(a). Interest shall continue to accrue on any
principal as to which a non-conforming payment is made until such funds become available funds (but
in no event less than the period from the date of such payment to the next succeeding applicable
Business Day) at the rate determined pursuant to Section 2.10 from the date such amount was due and
payable until the date such amount is paid in full.




          (h) If an Event of Default shall have occurred and not otherwise been waived, and the
maturity of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or
proceeds received by Agents hereunder in respect of any of the Obligations, shall be applied in
accordance with the application arrangements described in Section 7.2 of the Pledge and Security
Agreement.




     2.17. Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise
provided in the Collateral Documents with respect to amounts realized from the exercise of rights
with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other
than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through
the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the
enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of
Credit, fees and other amounts then due and owing to such Lender hereunder or under the other
Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other
Lender, then the Lender receiving such proportionately greater payment shall (a) notify
Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion
of such payment to purchase participations (which it shall be deemed to have purchased from each
seller of a participation simultaneously upon the receipt by such seller of its portion of such
payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them;
provided, if all or part of such proportionately greater payment received by such
purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of
the Company or otherwise, those purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent of such recovery,
but without interest. The Company expressly consents to the foregoing arrangement and agrees that
any holder of a participation so purchased may exercise any and all rights of banker’s lien,
set-off or counterclaim with respect to any and all monies owing by the Company to that holder with
respect thereto as fully as if that holder were owed the amount of the participation held by that
holder.



52









 





     2.18. Making or Maintaining Eurocurrency Rate Loans.



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




          (b) Illegality or Impracticability of Eurocurrency Rate Loans. In the event that on
any date any Lender shall have determined (which determination shall be final and conclusive and
binding upon all parties hereto but shall be made only after consultation with the Company and
Administrative Agent) that the making, maintaining or continuation of its Eurocurrency Rate Loans
(i) has become unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result
of contingencies occurring after the date hereof which materially and adversely affect the
applicable interbank market or the position of such Lender in that market, then, and in any such
event, such Lender shall be an “Affected Lender” and it shall on that day give notice (by
telefacsimile or by telephone confirmed in writing) to the Company and Administrative Agent of such
determination (which notice Administrative Agent shall promptly transmit to each other Lender).
Thereafter (1) the obligation of the Affected Lender to make Loans as, or to convert Loans to,
Eurocurrency Rate Loans shall be suspended until such notice shall be withdrawn by the Affected
Lender, (2) to the extent such determination by the Affected Lender relates to a Eurocurrency Rate
Loan then being requested by the Company in Dollars pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan
as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender’s
obligation to maintain its outstanding Eurocurrency Rate Loans (the “Affected Loans") shall be
terminated at the earlier to occur of the expiration of the Interest Period then in effect with
respect to the Affected Loans or when required by law, (4) the Affected Loans in Dollars shall
automatically convert into Base Rate Loans on the date of such termination and (5) the Affected
Loans in Euro shall be repaid by the Company on the date of such termination, together with all
interest accrued thereon. Notwithstanding the foregoing, to the extent a determination by an
Affected Lender as described above relates to a Eurocurrency Rate Loan then being requested by the
Company pursuant to a Funding Notice or a Conversion/Continuation Notice, the Company shall have
the option, subject to the provisions of Section 2.18(c), to rescind such Funding Notice or
Conversion/Continuation Notice as to all Lenders by giving notice (by telefacsimile or by telephone
confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected
Lender gives notice




53









 







of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as provided in the
immediately preceding
sentence, nothing in this Section 2.18(b) shall affect the obligation of any Lender other than
an Affected Lender to make or maintain Loans as, or to convert Loans to, Eurocurrency Rate Loans in
accordance with the terms hereof.




          (c) Compensation for Breakage or Non-Commencement of Interest Periods. The Company
shall compensate each Lender, upon written request by such Lender (which request shall set forth
the basis for requesting such amounts), for all reasonable losses, expenses and liabilities
(including any interest paid by such Lender to Lenders of funds borrowed by it to make or carry its
Eurocurrency Rate Loans and any loss, expense or liability sustained by such Lender in connection
with the liquidation or re-employment of such funds but excluding loss of anticipated profits)
which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a
borrowing of any Eurocurrency Rate Loan does not occur on a date specified therefor in a Funding
Notice or a telephonic request for borrowing, or a conversion to or continuation of any
Eurocurrency Rate Loan does not occur on a date specified therefor in a Conversion/Continuation
Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other
principal payment of, or any conversion of, any of its Eurocurrency Rate Loans occurs on a date
prior to the last day of an Interest Period applicable to that Loan; or (iii) if any prepayment of
any of its Eurocurrency Rate Loans is not made on any date specified in a notice of prepayment
given by the Company.




          (d) Booking of Eurocurrency Rate Loans. Any Lender may make, carry or transfer
Eurocurrency Rate Loans at, to, or for the account of any of its branch offices or the office of an
Affiliate of such Lender.




          (e) Assumptions Concerning Funding of Eurocurrency Rate Loans. Calculation of all
amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though
such Lender had actually funded each of its relevant Eurocurrency Rate Loans through the purchase
of a Eurocurrency deposit bearing interest at the rate obtained pursuant to clause (i) of the
definition of Adjusted Eurocurrency Rate in an amount equal to the amount of such Eurocurrency Rate
Loan and having a maturity comparable to the relevant Interest Period and through the transfer of
such Eurocurrency deposit from an offshore office of such Lender to a domestic office of such
Lender in the United States of America; provided, however, each Lender may fund
each of its Eurocurrency Rate Loans in any manner it sees fit and the foregoing assumptions shall
be utilized only for the purposes of calculating amounts payable under this Section 2.18 and under
Section 2.19.




     2.19. Increased Costs; Capital Adequacy.



          (a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section
2.20 (which shall be controlling with respect to the matters covered thereby), in the event that
any Lender (which term shall include Issuing Bank for purposes of this Section 2.19(a)) shall
determine (which determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or any
change therein or in the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order), or any




54









 







determination of a court or governmental authority, in each case that becomes effective after the
date hereof, or compliance by such Lender with any guideline, request or directive issued or
made after the date hereof by any central bank or other governmental or quasi-governmental
authority (whether or not having the force of law): (i) subjects such Lender (or its applicable
lending office) to any additional Tax (other than any Tax on the overall net income of such Lender)
with respect to this Agreement or any of the other Credit Documents or any of its obligations
hereunder or thereunder or any payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds
applicable any reserve (including any marginal, emergency, supplemental, special or other reserve),
special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or
deposits or other liabilities in or for the account of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Lender (other than any such
reserve or other requirements with respect to Eurocurrency Rate Loans that are reflected in the
definition of Adjusted Eurocurrency Rate); or (iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its
obligations hereunder or the London interbank market or the European interbank market, and the
result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making
or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or
its applicable lending office) with respect thereto; then, in any such case, the Company shall
promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be
necessary to compensate such Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Lender shall deliver to the Company (with a copy to Administrative
Agent) a written statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this Section 2.19(a), which statement shall be
conclusive and binding upon all parties hereto absent manifest error.




          (b) Capital Adequacy Adjustment. In the event that any Lender (which term shall
include Issuing Bank for purposes of this Section 2.19(b)) shall have determined that the adoption,
effectiveness, phase-in or applicability after the Closing Date of any law, rule or regulation (or
any provision thereof) regarding capital adequacy, or any change therein or in the interpretation
or administration thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender (or its applicable
lending office) with any guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Loans
or Revolving Commitments or Letters of Credit, or participations therein or other obligations
hereunder with respect to the Loans or the Letters of Credit to a level below that which such
Lender or such controlling corporation could have achieved but for such adoption, effectiveness,
phase-in, applicability, change or compliance (taking into consideration the policies of such
Lender or such controlling corporation with regard to capital adequacy), then from time to time,
within five Business Days after receipt by the Company from such Lender of the statement referred
to in the next sentence, the Company shall pay to such Lender such additional amount or amounts as
will compensate such Lender or such controlling corporation on an after-tax basis for such
reduction. Such Lender shall deliver to the




55









 







Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to Lender under this Section
2.19(b), which statement shall be conclusive and binding upon all parties hereto absent manifest
error.




     2.20. Taxes; Withholding, etc.



          (a) Payments to Be Free and Clear. All sums payable by the Company or any Guarantor
or on behalf of such persons by their respective agents hereunder and under the other Credit
Documents shall (except to the extent required by law) be paid free and clear of, and without any
deduction or withholding on account of, any Tax (other than a Tax on the overall net income of any
Lender).




          (b) Withholding of Taxes. If the Company or any Guarantor, or their respective agents
on their behalf, is required by law to make any deduction or withholding on account of any such Tax
from any sum paid or payable by the Company or any Guarantor, or their respective agents on their
behalf, to Administrative Agent or any Lender (which term shall include Issuing Bank for purposes
of this Section 2.20(b)) under any of the Credit Documents: (i) the Company shall notify
Administrative Agent of any such requirement or any change in any such requirement as soon as the
Company becomes aware of it; (ii) the Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to pay is imposed on the
Company or any Guarantor) for its own account or (if that liability is imposed on Administrative
Agent or such Lender, as the case may be) on behalf of and in the name of Administrative Agent or
such Lender; (iii) the sum payable by the Company or any Guarantor in respect of which the relevant
deduction, withholding or payment is required shall be increased to the extent necessary to ensure
that, after the making of that deduction, withholding or payment, Administrative Agent or such
Lender, as the case may be, receives on the due date a net sum equal to what it would have received
had no such deduction, withholding or payment been required or made; and (iv) within thirty days
after paying any sum from which it is required by law to make any deduction or withholding, and
within thirty days after the due date of payment of any Tax which it is required by clause (ii)
above to pay, the Company shall deliver to Administrative Agent the original or a certified copy of
a receipt issued by the relevant taxing or other authority or evidence satisfactory to the
Administrative Agent of such deduction, withholding or payment and of the remittance thereof to the
relevant taxing or other authority; provided, no such additional amount shall be required to be
paid to any Lender or Administrative Agent under clause (iii) above except to the extent that (x)
in the case of each Lender or Administrative Agent listed on the signature pages hereof on the
Closing Date, any change after the date hereof in any such requirement for a deduction, withholding
or payment as is mentioned therein shall result in an increase in the rate of such deduction,
withholding or payment from that in effect at the date hereof in respect of payments to such Lender
or (y) in the case of any Lender not listed on the signature pages hereof on the Closing Date, (A)
any such change after the date such Lender becomes a Lender shall result in an increase in the rate
of such deduction, withholding or payment from that in effect on such date in respect of payments
to such Lender or (B) such Lender’s assignor was entitled pursuant to this Section 2.20(b) at the
time of assignment.




          (c) Evidence of Exemption From U.S. Withholding Tax. Each Lender that is, and the
Administrative Agent, if it is, a United States person (as such term is defined in Section




56









 







7701(a)(30) of the Code), for US Federal Income tax purposes whose name does not include any
of the terms Incorporated, Inc., Corporation, Corp., P.C., insurance company, indemnity company,
reinsurance company, or assurance company shall deliver to the Administrative Agent for
transmission to the Company or prior to the Closing Date, or in the case of a lender that is an
assignee or transferee of an interest under this Agreement on the date of such assignment or
transfer to such Lender, two accurate and complete original signed copies of Internal Revenue
Service Form W-9 with respect to such Lender. Each Lender that is not, and the Administrative
Agent if it is not, a United States Person (as such term is defined in Section 7701(a)(30) of the
Internal Revenue Code) for U.S. federal income tax purposes (a “Non-US Lender") shall deliver to
Administrative Agent for transmission to the Company, on or prior to the Closing Date (in the case
of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date
of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other
Lender), and at such other times as may be necessary in the determination of the Company or
Administrative Agent (each in the reasonable exercise of its discretion) upon reasonable request by
the Company or Administrative Agent, in each case to the extent such Lender may lawfully do so at
such times, (i) two original copies of Internal Revenue Service Form W-8BEN and/or Form W-8IMY and
the related statements and certifications as required under §1.1441-1(e)(1), as applicable, or
W-8ECI (or, in each case, any successor forms), properly completed and duly executed by such
Lender, and such other documentation required under the Internal Revenue Code and reasonably
requested by the Company to establish that such Lender is not subject to deduction or withholding
of United States federal income tax with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Credit Documents, or (ii) if such Lender
or Administrative Agent is not a “bank” or other Person described in Section 881(c)(3) of the
Internal Revenue Code, is claiming the so called “portfolio interest exemption”, and cannot deliver
either Internal Revenue Service Form W-8ECI pursuant to clause (i) above, a Certificate re Non-Bank
Status together with two original copies of Internal Revenue Service Form W-8BEN and/or Form W-8IMY
and the related statements and certifications as required under §1.1441-1(e)(1), as applicable,
(or, in each case, any successor form), properly completed and duly executed by such Lender, and
such other documentation required under the Internal Revenue Code and reasonably requested by the
Company to establish that such Lender is not subject to deduction or withholding of United States
federal income tax with respect to any payments to such Lender of interest payable under any of the
Credit Documents. Each Non-US Lender hereby agrees, from time to time after the initial delivery
by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any
material respect or upon reasonable request by the Administrative Agent or the Company, that such
Lender shall promptly deliver to Administrative Agent for transmission to the Company two new
original copies of Internal Revenue Service Form W-8BEN and/or Form W-8IMY, as applicable, or
W-8ECI, or a Certificate re Non-Bank Status and two original copies of Internal Revenue Service
Form W-8BEN and/or Form W-8IMY, as applicable, (or, in each case, any successor form),
as the case
may be, properly completed and duly executed by such Lender, and such other documentation required
under the Internal Revenue Code and reasonably requested by the Company to confirm or establish
that such Lender is not subject to deduction or withholding of United States federal income tax
with respect to payments to such Lender under the Credit Documents, or notify Administrative Agent
and the Company of its inability to deliver any such forms, certificates or other evidence. The
Company shall not be required to pay any




57









 







additional amount to any Non-US Lender under Section 2.20(b)(iii) if such Lender or
Administrative Agent shall have failed to deliver the forms, certificates or other evidence
referred to in this Section 2.20(c); provided, if such Lender or Administrative Agent shall
have satisfied the requirements of this Section 2.20(c) on the Closing Date or on the date of the
Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in this last
sentence of Section 2.20(c) shall relieve the Company of its obligation to pay any additional
amounts pursuant this Section 2.20 in the event that, as a result of any change in any applicable
law, treaty or governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender or Administrative Agent is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date establishing the
fact that such Lender or Administrative Agent is not subject to withholding as described herein.




          (d) If the Company pays any additional amount under this Section 2.20 to a Lender and such
Lender determines in its sole and absolute discretion that is has actually received in connection
therewith any refund or any reduction of its tax liabilities in lieu of a refund in or with respect
to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay
to the Company an amount that the Lender shall, in its sole and absolute discretion, determine is
equal to the net benefit, after tax and net of all reasonable out-of-pocket expenses of such Lender
and without interest (other than interest paid by the relevant Governmental Authority with respect
to such refund), which was obtained by the Lender in such year as a consequence of such Tax
Benefit; provided, however, that (i) any Lender may determine in its sole and absolute
discretion consistent with the policies of such Lender whether to seek a Tax Benefit; (ii) any
Taxes that are imposed on a Lender as a result of a disallowance or reduction (including through
the expiration of any tax carryover or carryback of such Lender that otherwise would not have
expired) of any Tax Benefit with respect to which such Lender has made a payment to the Company
pursuant to this Section 2.20 shall be treated as a Tax for which the Company is obligated to
indemnify such Lender pursuant to this Section 2.20 without any exclusions or defenses; (iii) the
Company, upon the request of a Lender, agrees to repay the amount paid over to the Company (plus
penalties, interest or other reasonable charges) to such Lender in the event such Lender is
required to repay such Tax Benefit to such Governmental Authority; and (iv) nothing in this Section
2.20 shall require a Lender to disclose any confidential information to the Company (including its
tax returns).




     2.21. Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for purposes
of this Section 2.21) agrees that, as promptly as practicable after the officer of such Lender
responsible for administering its Loans or Letters of Credit, as the case may be, becomes aware of
the occurrence of an event or the existence of a condition that would cause such Lender to become
an Affected Lender or that would entitle such Lender to receive payments under Section 2.18, 2.19
or 2.20, it will, to the extent not inconsistent with the internal policies of such Lender and any
applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or
maintain its Credit Extensions, including any Affected Loans, through another office of such
Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof
the circumstances which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such Lender pursuant to
Section 2.18, 2.19 or 2.20 would be materially reduced and if, as determined by such Lender in its
sole discretion, the making, issuing, funding or maintaining of such Revolving
Commitments, Loans or Letters of Credit through such other office or in



58









 




accordance with such
other measures, as the case may be, would not otherwise adversely affect such Revolving
Commitments, Loans or Letters of Credit or the interests of such Lender; provided, such
Lender will not be obligated to utilize such other office pursuant to this Section 2.21 unless the
Company agrees to pay all incremental expenses incurred by such Lender as a result of utilizing
such other office as described above. A certificate as to the amount of any such expenses payable
by the Company pursuant to this Section 2.21 (setting forth in reasonable detail the basis for
requesting such amount) submitted by such Lender to the Company (with a copy to Administrative
Agent) shall be conclusive absent manifest error.




     2.22. Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the
event that any Lender, other than at the direction or request of any regulatory agency or
authority, defaults (a “Defaulting Lender”) in its obligation to fund (a “Funding Default") any
Revolving Loan or its portion of any unreimbursed payment under Section 2.3(b)(iv) or 2.4(e) (in
each case, a “Defaulted Loan"), then (a) during any Default Period with respect to such Defaulting
Lender, such Defaulting Lender shall be deemed not to be a “Lender” for purposes of voting on any
matters (including the granting of any consents or waivers) with respect to any of the Credit
Documents; (b) to the extent permitted by applicable law, until such time as the Default Excess
with respect to such Defaulting Lender shall have been reduced to zero, (i) any voluntary
prepayment of the Revolving Loans shall, if the Company so directs at the time of making such
voluntary prepayment, be applied to the Revolving Loans of other Lenders as if such Defaulting
Lender had no Revolving Loans outstanding and the Revolving Exposure of such Defaulting Lender were
zero, and (ii) any mandatory prepayment of the Revolving Loans shall, if the Company so directs at
the time of making such mandatory prepayment, be applied to the Revolving Loans of other Lenders
(but not to the Revolving Loans of such Defaulting Lender) as if such Defaulting Lender had funded
all Defaulted Loans of such Defaulting Lender, it being understood and agreed that the Company
shall be entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is
not paid to such Defaulting Lender solely as a result of the operation of the provisions of this
clause (b); (c) such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans and
such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage shall be excluded for
purposes of calculating the Revolving Commitment fee payable to Lenders in respect of any day
during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall
not be entitled to receive any Revolving Commitment fee pursuant to Section 2.11 with respect to
such Defaulting Lender’s Revolving Commitment in respect of any Default Period with respect to such
Defaulting Lender; and (d) the Total Utilization of Revolving Commitments as at any date of
determination shall be calculated as if such Defaulting Lender had funded all Defaulted Loans of
such Defaulting Lender. No Revolving Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this Section 2.22, performance by the
Company of its obligations hereunder and the other Credit Documents shall not be excused or
otherwise modified as a result of any Funding Default or the operation of this Section 2.22. The
rights and remedies against a Defaulting Lender under this Section 2.22 are in addition to other
rights and remedies which the Company may have against such Defaulting Lender with respect to any
Funding Default and which Administrative Agent or any Lender may have against such Defaulting
Lender with respect to any Funding Default.



     2.23. Removal or Replacement of a Lender. Anything contained herein to the contrary
notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender")



59









 




shall give
notice to the Company that such Lender is an Affected Lender or that such Lender is entitled to
receive payments under Section 2.18, 2.19 or 2.20, (ii) the circumstances which have caused such
Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain
in effect, and (iii) such Lender shall fail to withdraw such notice within five Business Days after
the Company’s request for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender,
(ii) the Default Period for such Defaulting Lender shall remain in effect, and (iii) such
Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting
Lender within five Business Days after the Company’s request that it cure such default; or (c) in
connection with any proposed amendment, modification, termination, waiver or consent with respect
to any of the provisions hereof as contemplated by Section 10.5(b), the consent of Requisite
Lenders shall have been obtained but the consent of one or more of such other Lenders (each a
“Non-Consenting Lender") whose consent is required shall not have been obtained; then, with respect
to each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the “Terminated
Lender"), the Company may, by giving written notice to Administrative Agent and any Terminated
Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender
hereby irrevocably agrees) to assign its outstanding Loans and its Revolving Commitments, if any,
in full to one or more Eligible Assignees (each a “Replacement Lender") in accordance with the
provisions of Section 10.6 and Terminated Lender shall pay any fees payable thereunder in
connection with such assignment; provided, (1) on the date of such assignment, the
Replacement Lender shall pay to Terminated Lender an amount equal to the sum of (A) an amount equal
to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender,
(B) an amount equal to all unreimbursed drawings that have been funded by such Terminated Lender,
together with all then unpaid interest with respect thereto at such time and (C) an amount equal to
all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.11;
(2) on the date of such assignment, the Company shall pay any amounts payable to such Terminated
Lender pursuant to Section 2.18(c), 2.19 or 2.20; or otherwise as if it were a prepayment; and (3)
in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall
consent, at the time of such assignment, to each matter in respect of which such Terminated Lender
was a Non-Consenting Lender; provided, the Company may not make such election with respect
to any Terminated Lender that is also an Issuing Bank unless, prior to the effectiveness of such
election, the Company shall have caused each outstanding Letter of Credit issued thereby to be
cancelled. Upon the prepayment of all amounts owing to any Terminated Lender and the termination
of such Terminated Lender’s Revolving Commitments, if any, such Terminated Lender shall no longer
constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender
to indemnification hereunder shall survive as to such Terminated Lender.




     2.24. Incremental Facilities. (a) The Company may by written notice to Syndication Agent
elect to request the establishment of one or more new term loan commitments (the “New First Lien
Term Loan Commitments"), by an amount not in excess of $35,000,000 in the aggregate and not less
than $5,000,000 individually (or such lesser amount which shall be approved by Administrative Agent
and Syndication Agent or such lesser amount that shall constitute the difference between
$35,000,000 and all such New First Lien Term Loan Commitments obtained prior to such date),
and integral multiples of $500,000 in excess of that amount. Each such notice shall specify
(A) the date (each, an “Increased Amount Date") on which the Company proposes that the New First
Lien Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than
10 Business Days after the date on which



60









 




such notice is delivered to Syndication Agent and (B) the
identity of each Lender or other Person that is an Eligible Assignee (each, a “New First Lien Term
Loan Lender”, as applicable) to whom the Company proposes any portion of such New First Lien Term
Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided
that any Lender approached to provide all or a portion of the New First Lien Term Loan Commitments
may elect or decline, in its sole discretion, to provide a New First Lien Term Loan Commitment.
Such New First Lien 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 First Lien Term Loan Commitments, as applicable; (2) both
before and after giving effect to the making of any Series of New First Lien Term Loans, each of
the conditions set forth in Section 3.2 shall be satisfied; (3) the Company and its Subsidiaries
shall be in pro forma compliance with each of the covenants set forth in Section 6.7 as of the last
day of the most recently ended Fiscal Quarter after giving effect to such New First Lien Term Loan
Commitments, as applicable; (4) the New First Lien Term Loan Commitments, as applicable, shall be
effected pursuant to one or more Joinder Agreements executed and delivered by the Company and
Administrative Agent, and each of which shall be recorded in the Register and shall be subject to
the requirements set forth in Section 2.20(c); (5) the Company shall make any payments required
pursuant to Section 2.18(c) in connection with the New First Lien Term Loan Commitments, as
applicable; and (6) the Company 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 First Lien Term Loans made on an Increased Amount Date shall be designated a separate series (a
“Series") of New First Lien Term Loans for all purposes of this Agreement.




          (b) On any Increased Amount Date on which any New First Lien Term Loan Commitments of any
Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each
New First Lien Term Loan Lender of any Series shall make a Loan to the Company (a “New First Lien
Term Loan”) in an amount equal to its New First Lien Term Loan Commitment of such Series, and (ii)
each New First Lien Term Loan Lender of any Series shall become a Lender hereunder with respect to
the New First Lien Term Loan Commitment of such Series and the New First Lien Term Loans of such
Series made pursuant thereto.




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



     The terms and provisions of the New First Lien Term Loans and New First Lien Term Loan
Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder
Agreement, identical to the First Lien Term Loans. In any event (i) the weighted average life to
maturity of all New First Lien Term Loans of any Series shall be no shorter than the weighted
average life to maturity of the Revolving Loans and the First Lien Terms Loans, (ii) the applicable
New First Lien Term Loan Maturity Date of each Series shall be no earlier than the latest of the
final maturity of the Revolving Loans and the First Lien Term Loans, and (iii) the rate of interest
applicable to the New First Lien Term Loans of each Series shall be determined
by the Company and the applicable new Lenders and shall be set forth in each applicable
Joinder Agreement; provided however that the interest rate applicable to the New
First Lien Term Loans shall not be greater than the highest interest rate that may, under any
circumstances, be payable



61









 




with respect to First Lien Term Loans plus 25 basis points per annum,
unless the interest rate with respect to the First Lien Term Loan is increased so as to equal the
interest rate applicable to the New First Lien Term Loans. Each Joinder Agreement may, without the
consent of any other Lenders, effect such amendments to this Agreement and the other Credit
Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and
Syndication Agent, to effect the provision of this Section 2.24.




SECTION 3. CONDITIONS PRECEDENT




     3.1. Closing Date. The obligation of each Lender to make a Credit Extension on the Closing
Date is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following
conditions on or before the Closing Date:



          (a) Credit Documents. Administrative Agent shall have received sufficient copies of
each Credit Document originally executed and delivered by each applicable Credit Party for each
Lender.




          (b) Organizational Documents; Incumbency. Administrative Agent shall have received
(i) sufficient copies of each Organizational Document executed and delivered by each Credit Party,
as applicable, and, to the extent applicable, certified as of a recent date by the appropriate
governmental official, for each Lender, each dated the Closing Date or a recent date prior thereto;
(ii) signature and incumbency certificates of the officers of such Person executing the Credit
Documents to which it is a party; (iii) resolutions of the Board of Directors or similar governing
body of each Credit Party approving and authorizing the execution, delivery and performance of this
Agreement and the other Credit Documents to which it is a party or by which it or its assets may be
bound as of the Closing Date, certified as of the Closing Date by its secretary or an assistant
secretary as being in full force and effect without modification or amendment; (iv) a good standing
certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of
incorporation, organization or formation and in each jurisdiction in which it is qualified as a
foreign corporation or other entity to do business, each dated a recent date prior to the Closing
Date; and (v) such other documents as Administrative Agent may reasonably request.




          (c) Organizational and Capital Structure. The organizational structure and capital
structure of Holdings and its Subsidiaries, both before and after giving effect to the initial
borrowings hereunder and under the Second Lien Term Facility, shall be as set forth on Schedule
4.1.




          (d) Capitalization of Holdings and the Company. On or before the Closing Date, the
Company shall have received at least $115,000,000 of proceeds from the initial borrowings under the
Second Lien Term Facility, and the Administrative Agent shall have received executed
copies of all documentation relating to the Second Lien Term Facility, in form and substance
satisfactory to it.




          (e) Consummation of the Recapitalization. On the Closing Date, (a) the
Recapitalization shall be consummated and (b) Holdings and its Subsidiaries shall have (i) prior to
the Closing Date, caused a tender to be made for the Existing Subordinated Notes in




62









 







accordance with
customary debt tender and exit consent procedures, such that on or prior to the Closing Date, at
least a majority of the Existing Subordinated Notes shall have been tendered and purchased and the
indenture for the Existing Subordinated Notes shall have been amended, (ii) repaid in full all
Existing Indebtedness, except for any amounts of the Existing Subordinated Notes not tendered as of
the Closing Date (the “Unpaid Refinancing Amount”), (iii) terminated any commitments to lend or
make other extensions of credit thereunder, (iv) delivered to Administrative Agent and Syndication
Agent all documents or instruments necessary to release all Liens securing Existing Indebtedness or
other obligations of Holdings and its Subsidiaries thereunder being repaid on the Closing Date, and
(v) made arrangements reasonably satisfactory to Administrative Agent and Syndication Agent with
respect to the cancellation of any letters of credit outstanding thereunder or the issuance of
Letters of Credit to support the obligations of Holdings and its Subsidiaries with respect thereto.




          (f) Transaction Costs. On or prior to the Closing Date, the Company shall have
delivered to Administrative Agent the Company’s reasonable best estimate of the Transactions Costs
(other than fees payable to any Agent).




          (g) Governmental Authorizations and Consents. Each Credit Party shall have obtained
all Governmental Authorizations and all consents of other Persons, in each case that are necessary
or advisable in connection with the transactions contemplated by the Credit Documents and each of
the foregoing shall be in full force and effect and in form and substance reasonably satisfactory
to Administrative Agent and Syndication Agent. All applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority which would restrain,
prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit
Documents or the financing thereof and no action, request for stay, petition for review or
rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and
the time for any applicable agency to take action to set aside its consent on its own motion shall
have expired.




          (h) Real Estate Assets. In order to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to herein,
perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall
have received from the Company and each applicable Guarantor:





          (i) fully executed and notarized Mortgages, in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset
listed in Schedule 3.1(h) (each, a “Closing Date Mortgaged Property’’);




          (ii) (a) ALTA mortgagee title insurance policies or unconditional commitments therefor
issued by one or more title companies reasonably satisfactory to Collateral Agent with
respect to each Closing Date Mortgaged Property (each, a “Title
Policy"), in amounts not less than the fair market value of each Closing Date Mortgaged
Property, together with a title report issued by a title company with respect thereto, dated
not more than thirty days prior to the Closing Date and copies of all recorded documents
listed as exceptions to title or otherwise referred to therein, each in form and substance
reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral
Agent that such Credit Party has paid to the title company or to the appropriate



63









 






governmental authorities all expenses and premiums of the title company and all other sums
required in connection with the issuance of each Title Policy and all recording and stamp
taxes (including mortgage recording and intangible taxes) payable in connection with
recording the Mortgages for each Closing Date Mortgaged Property in the appropriate real
estate records; and




          (iii) evidence of flood insurance with respect to each Flood Hazard Property that is
located in a community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors, in form and
substance reasonably satisfactory to Collateral Agent.



          (i) Personal Property Collateral. In order to create in favor of Collateral Agent,
for the benefit of Secured Parties, a valid, perfected First Priority security interest in the
personal property Collateral, Collateral Agent shall have received:





          (i) evidence satisfactory to Collateral Agent of the compliance by each Credit Party of
their obligations under the Pledge and Security Agreement and the other Collateral Documents
(including, without limitation, their obligations to execute and deliver UCC financing
statements, originals of securities, instruments and chattel paper and any agreements
governing deposit and/or securities accounts as provided therein);




          (ii) A completed Collateral Questionnaire dated the Closing Date and executed by an
Authorized Officer of each Credit Party, together with all attachments contemplated thereby,
including (A) the results of a recent search, by a Person satisfactory to Collateral Agent,
of all effective UCC financing statements (or equivalent filings) made with respect to any
personal or mixed property of any Credit Party in the jurisdictions specified in the
Collateral Questionnaire, together with copies of all such filings disclosed by such search,
and (B) UCC termination statements (or similar documents) duly executed by all applicable
Persons for filing in all applicable jurisdictions as may be necessary to terminate any
effective UCC financing statements (or equivalent filings) disclosed in such search (other
than any such financing statements in respect of Permitted Liens);




          (iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral
Agent) with respect to the creation and perfection of the security interests in favor of
Collateral Agent in such Collateral and such other matters governed by the laws of each
jurisdiction in which any Credit Party or any personal property Collateral is located as
Collateral Agent may reasonably request, in each case in form and substance reasonably
satisfactory to Collateral Agent; and




          (iv) evidence that each Credit Party shall have taken or caused to be taken any other
action, executed and delivered or caused to be executed and delivered any other agreement,
document and instrument (including without limitation, (i) a Landlord Personal Property
Collateral Access Agreement executed by the landlord of any Leasehold Property and by the
applicable Credit Party (other than the Landlord Personal Property Collateral Access
Agreements listed on Schedule 3.1(i)) and (ii) any intercompany notes evidencing
Indebtedness permitted to be incurred pursuant to Section



64









 






6.1(b)) and made or caused to be
made any other filing and recording (other than as set forth herein) reasonably required by
Collateral Agent.



          (j) Environmental Reports. Administrative Agent and Syndication Agent shall have
received reports and other information, in form, scope and substance reasonably satisfactory to
Administrative Agent and Syndication Agent, regarding environmental matters relating to the
Facilities, which reports shall include a Phase I Report for each of the Facilities set forth on
Schedule 3.1(h) hereto1. Administrative Agent and Syndication Agent shall have received
corresponding reliance letters (or satisfactory reliance language in such reports) authorizing the
Agents and each Lender to rely upon such reports, all of which shall be, in form, scope and
substance, reasonably satisfactory to the Administrative Agent.




          (k) Financial Statements; Projections. Lenders shall have received from Holdings (i)
the Historical Financial Statements, (ii) pro forma consolidated balance sheets of Holdings and its
Subsidiaries for the twelve-month period ended September 30, 2005, and reflecting the consummation
of the Recapitalization and the other transactions contemplated by the Credit Documents and the
Second Lien Term Facility to occur on or prior to the Closing Date, which pro forma financial
statements shall be in form and substance reasonably satisfactory to Administrative Agent and
Syndication Agent, and (iii) the Projections.




          (l) Evidence of Insurance. Collateral Agent shall have received a certificate from
the Company’s insurance broker or other evidence satisfactory to it that all insurance required to
be maintained pursuant to Section 5.5 is in full force and effect, together with endorsements
naming the Collateral Agent, for the benefit of Secured Parties, as additional insured and loss
payee thereunder to the extent required under Section 5.5.




          (m) Opinions of Counsel to Credit Parties. Lenders and their respective counsel shall
have received originally executed copies of the favorable written opinions of Stroock & Stroock &
Lavan LLP, counsel for Credit Parties, in the form of Exhibit D and as to such other matters as
Administrative Agent or Syndication Agent may reasonably request, dated as of the Closing Date and
otherwise in form and substance reasonably satisfactory to Administrative Agent and Syndication
Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and
Lenders).




          (n) Fees. The Company shall have paid to Agents the fees payable on the Closing Date
referred to in Section 2.11(d).




          (o) Solvency Certificate. On the Closing Date, Administrative Agent and Syndication
Agent shall have received a Solvency Certificate from the Company dated the Closing Date,
satisfactory to Administrative Agent and Syndication Agent, and demonstrating that after giving
effect to the consummation of the initial borrowings hereunder and under the Second Lien Term
Facility, the Company and its Subsidiaries are and will be Solvent.






 




			
	1	 	Schedule 3.1(j) to include final copies of Environmental Reviews prepared by ENVIRON in August 2005.




65









 










          (p) Closing Date Certificate. Holdings and the Company shall have delivered to
Administrative Agent and Syndication Agent an originally executed Closing Date Certificate,
together with all attachments thereto.




          (q) Credit Rating. The credit facilities provided for under this Agreement shall have
been assigned a credit rating by either S&P and/or Moody’s in each case satisfactory to the Agents.




          (r) Closing Date. Lenders shall have made the Term Loans to the Company on or before
January 31, 2006.




          (s) No Litigation. There shall not exist any action, suit, investigation, litigation
or proceeding or other legal or regulatory developments, pending or to the knowledge of Holdings or
the Company threatened in any court or before any arbitrator or Governmental Authority that, in the
reasonable opinion of Administrative Agent and Syndication Agent, singly or in the aggregate,
materially impairs the transactions contemplated by the Credit Documents, or that could have a
Material Adverse Effect.




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




          (u) Maximum Leverage Ratio. The Administrative Agent shall be satisfied that the
Leverage Ratio on the Closing Date, after giving effect to the transactions contemplated herein and
under the Second Lien Term Facility, shall not be greater than 5.5 to 1.0.




          (v) Patriot Act. The Administrative Agent shall have received all documentation and
other information required by bank regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including the USA Patriot Act of 2001.



Each Lender, by delivering its signature page to this Agreement and funding a Loan on the Closing
Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit
Document and each other document required to be approved by any Agent, Requisite Lenders or
Lenders, as applicable on the Closing Date.




     3.2. Conditions to Each Credit Extension.



          (a) Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing
Bank to issue any Letter of Credit, on any Credit Date, including the Closing Date, are subject to
the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:




66









 









          (i) Administrative Agent shall have received a fully executed and delivered Funding
Notice or Issuance Notice, as the case may be;




          (ii) after making the Credit Extensions requested on such Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in
effect;




          (iii) as of such Credit Date, the representations and warranties contained herein and
in the other Credit Documents shall be true and correct in all material respects on and as
of that Credit Date to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true and correct in all material
respects on and as of such earlier date;




          (iv) as of such Credit Date, no event shall have occurred and be continuing or would
result from the consummation of the applicable Credit Extension that would constitute an
Event of Default or a Default;




          (v) on or before the date of issuance of any Letter of Credit, Administrative Agent
shall have received all other information required by the applicable Issuance Notice, and
such other documents or information as Issuing Bank may reasonably require in connection
with the issuance of such Letter of Credit; and




          (vi) after giving effect to the application of the proceeds of such Credit Extension
(and the consummation of the Recapitalization), including, without limitation, with respect
to any acquisitions, investments, capital expenditures or any other application of proceeds
otherwise permitted under this Agreement, the aggregate Cash and Cash Equivalents of the
Company and its Subsidiaries will not exceed $10,000,000.


Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior
to the making of any Credit Extension, additional information reasonably satisfactory to the
requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment
of such Agent or Requisite Lender such request is warranted under the circumstances.




          (b) Notices. Any Notice shall be executed by an Authorized Officer in a writing
delivered to Administrative Agent. In lieu of delivering a Notice, the Company may give
Administrative Agent telephonic notice by the required time of any proposed borrowing,
conversion/continuation or issuance of a Letter of Credit, as the case may be; provided
each such notice shall be promptly confirmed in writing by delivery of the applicable Notice to
Administrative Agent on or before the applicable date of borrowing, continuation/conversion or
issuance. Neither Administrative Agent nor any Lender shall incur any liability to the Company in
acting upon any telephonic notice referred to above that Administrative Agent believes in
good faith to have been given by a duly authorized officer or other person authorized on
behalf of the Company or for otherwise acting in good faith.




67









 








SECTION 4. REPRESENTATIONS AND WARRANTIES




     In order to induce Lenders and Issuing Bank to enter into this Agreement and to make each
Credit Extension to be made thereby, each Credit Party represents and warrants to each Lender and
Issuing Bank, on the Closing Date and on each Credit Date, that the following statements are true
and correct:



     4.1. Organization; Requisite Power and Authority; Qualification. Each of Holdings and its
Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization as identified in Schedule 4.1, (b) has all requisite power and
authority to own and operate its properties, to carry on its business as now conducted and as
currently contemplated would be conducted, to enter into the Credit Documents to which it is a
party and to carry out the transactions contemplated thereby, and (c) is qualified to do business
and in good standing in every jurisdiction where its assets are located and wherever necessary to
carry out its business and operations, except in jurisdictions where the failure to be so qualified
or in good standing has not had, and would not be reasonably expected to have, a Material Adverse
Effect.



     4.2. Capital Stock and Ownership. The Capital Stock of each of Holdings and its Subsidiaries
has been duly authorized and validly issued and is fully paid and non-assessable. Except as set
forth on Schedule 4.2, as of the date hereof, there is no existing option, warrant, call, right,
commitment or other agreement to which Holdings or any of its Subsidiaries is a party requiring,
and there is no membership interest or other Capital Stock of Holdings or any of its Subsidiaries
outstanding which upon conversion or exchange would require, the issuance by Holdings or any of its
Subsidiaries of any additional membership interests or other Capital Stock of Holdings or any of
its Subsidiaries or other Securities convertible into, exchangeable for or evidencing the right to
subscribe for or purchase, a membership interest or other Capital Stock of Holdings or any of its
Subsidiaries. Schedule 4.2 correctly sets forth the ownership interest of Holdings and each of its
Subsidiaries in their respective Subsidiaries as of the Closing Date.



     4.3. Due Authorization. The execution, delivery and performance of the Credit Documents and
the Second Lien Term Facility have been duly authorized by all necessary action on the part of each
Credit Party that is a party thereto.



     4.4. No Conflict. The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions contemplated by the
Credit Documents do not and will not (a) violate any provision of any law or any governmental rule
or regulation applicable to Holdings or any of its Subsidiaries, any of the Organizational
Documents of Holdings or any of its Subsidiaries, or any order, judgment or decree of any court or
other agency of government binding on Holdings or any of its Subsidiaries; (b) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a default under
any Contractual Obligation of Holdings or any of its Subsidiaries in any respect that would
reasonably be expected to have a Material Adverse Effect; (c) result in or require the creation or
imposition of any Lien upon any of the properties or assets of Holdings or any of its Subsidiaries
(other than any Liens created under any of the Credit Documents in favor of Collateral Agent, on
behalf of Secured Parties); or (d) require any approval of stockholders, members or partners or any
approval or consent of any Person under any Contractual Obligation



68









 




of Holdings or any of its
Subsidiaries, except for such approvals or consents which Holdings and its Subsidiaries have used
commercially reasonable efforts to obtain on or before the Closing Date and have disclosed in
writing to Lenders and except for any such approvals or consents the failure of which to obtain
would not reasonably be expected to have a Material Adverse Effect.




     4.5. Governmental Consents. The execution, delivery and performance by Credit Parties of the
Credit Documents to which they are parties and the consummation of the transactions contemplated by
the Credit Documents do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Authority, except where the failure of
which to be so made or delivered would not reasonably be expected to have a Material Adverse
Effect, and except for filings and recordings with respect to the Collateral to be made, or
otherwise delivered to Collateral Agent for filing and/or recordation, as of the Closing Date.



     4.6. Binding Obligation. Each Credit Document has been duly executed and delivered by each
Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit
Party, enforceable against such Credit Party in accordance with its respective terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors’ rights generally or by equitable principles relating to enforceability.



     4.7. Historical Financial Statements. The Historical Financial Statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial position, on a
consolidated basis, of the Persons described in such financial statements as at the respective
dates thereof and the results of operations and cash flows, on a consolidated basis, of the
entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-end adjustments.
As of the Closing Date, neither Holdings nor any of its Subsidiaries has any contingent liability
or liability for taxes, long-term lease or unusual forward or long-term commitment that is not
reflected in the Historical Financial Statements or the notes thereto and which would be reasonably
expected to have a Material Adverse Effect.



     4.8. Projections. On and as of the Closing Date, the projections of the Company and its
Subsidiaries for the period of Fiscal Year 2006 through and including Fiscal Year 2010 (the
“Projections") are based on good faith estimates and assumptions made by the management of the
Company; provided, the Projections are not to be viewed as facts and that actual results
during the period or periods covered by the Projections may differ from such Projections and that
the differences may
be material; provided further, as of the Closing Date, management of the
Company believed that the assumptions upon which the Projections are based were reasonable.



     4.9. No Material Adverse Change. Since December 31, 2004, no event, circumstance or change
has occurred that has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect.



     4.10. Adverse Proceedings, etc. There are no Adverse Proceedings, individually or in the
aggregate, that would reasonably be expected to have a Material Adverse Effect. Neither Holdings
nor any of its Subsidiaries (a) is in violation of any applicable laws (including



69









 




Environmental
Laws) that, individually or in the aggregate, would reasonably be expected to have a Material
Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign,
that, individually or in the aggregate, would reasonably be expected to have a Material Adverse
Effect.




     4.11. Payment of Taxes. Except as otherwise permitted under Section 5.3, all federal and
state income and all other material tax returns and reports of Holdings and its Subsidiaries
required to be filed by any of them have been timely filed, and all taxes shown on such tax returns
to be due and payable and all federal and state income and all other material assessments, fees and
other governmental charges upon Holdings and its Subsidiaries and upon their respective properties,
assets, income, businesses and franchises which are due and payable have been paid when due and
payable. Holdings knows of no proposed tax assessment against Holdings or any of its Subsidiaries
which is not being actively contested by Holdings or such Subsidiary in good faith and by
appropriate proceedings; provided, such reserves or other appropriate provisions, if any,
as shall be required in conformity with GAAP shall have been made or provided therefor.



     4.12. Properties.



          (a) Title. Each of the Company and its Subsidiaries has (i) good, sufficient and
legal title to (in the case of fee interests in real property), (ii) valid leasehold interests in
(in the case of leasehold interests in real or personal property), and (iii) good title to (in the
case of all other personal property), all of their respective properties and assets reflected in
their respective Historical Financial Statements referred to in Section 4.5 and in the most recent
financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of
since the date of such financial statements in the ordinary course of business or as otherwise
permitted under Section 6.8 or as would not be reasonably expected to have a Material Adverse
Effect. Except as permitted by this Agreement, all such properties and assets are free and clear
of Liens.




          (b) Real Estate. As of the Closing Date, Schedule 4.12 contains a true, accurate and
complete list of (i) all Real Estate Assets, and (ii) all leases, subleases or assignments of
leases (together with all amendments, modifications, supplements, renewals or extensions of any
thereof) affecting each Real Estate Asset of the Company and its Domestic Subsidiaries,
regardless of whether the Company or such Subsidiary is the landlord or tenant (whether
directly or as an assignee or successor in interest) under such lease, sublease or assignment.
Each agreement listed in clause (ii) of the immediately preceding sentence is in full force and
effect and the Company does not have knowledge of any default that has occurred and is continuing
thereunder, and each such agreement constitutes the legally valid and binding obligation of the
Company or the applicable Subsidiary, enforceable against the Company or such Subsidiary in
accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or
by equitable principles.




     4.13. Environmental Matters. Neither Holdings nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written order, consent



70









 




decree or
settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or
any Hazardous Materials Activity that, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect. Neither Holdings nor any of its Subsidiaries has
received any letter or request for information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law that,
individually or in the aggregate, would reasonably be expected to result in any Environmental Claim
or Claims that would have a Material Adverse Effect. There are and, to each of Holdings’ and its
Subsidiaries’ knowledge, have been, no conditions, occurrences, or Hazardous Materials Activities
which would reasonably be expected to form the basis of an Environmental Claim against Holdings or
any of its Subsidiaries that, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect. None of the operations of Holdings or any of its Subsidiaries or,
to any Credit Party’s knowledge, any predecessor of Holdings or any of its Subsidiaries has owned
or operated, and no Facility is or has been used as, a hazardous waste treatment, storage or
disposal facility (including, without limitation, any landfill) requiring a license or permit
pursuant to Section 3005 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6925, the
regulations thereunder or any state analog. Compliance with all current or reasonably foreseeable
future requirements pursuant to or under Environmental Laws would not be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect. No event or condition has
occurred or is occurring with respect to Holdings or any of its Subsidiaries relating to any
Environmental Law, any Release of Hazardous Materials, or any Hazardous Materials Activity which
individually or in the aggregate has had, or would reasonably be expected to have, a Material
Adverse Effect.




     4.14. No Defaults. Neither Holdings nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or conditions contained
in any of its Contractual Obligations, and no condition exists which, with the giving of notice or
the lapse of time or both, could constitute such a default, except where the consequences of such
default or defaults, if any, would not reasonably be expected to have a Material Adverse Effect.



     4.15. Material Contracts. Schedule 4.15 contains a true, correct and complete list of all the
Material Contracts in effect on the Closing Date, and except as described thereon, all such
Material Contracts are in full force and effect and no defaults currently exist thereunder.



     4.16. Governmental Regulation. Neither Holdings nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940 or under any other federal or state statute or regulation which may
limit its ability to incur Indebtedness or which may otherwise render all or any portion of the
Obligations unenforceable. Neither Holdings nor any of its Subsidiaries is a “registered
investment company” or a company “controlled” by a “registered investment company” or a “principal
underwriter” of a “registered investment company” as such terms are defined in the Investment
Company Act of 1940.



     4.17. Margin Stock. Neither Holdings nor any of its Subsidiaries is engaged principally, or
as one of its important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock. No part of the proceeds of the Loans made to such Credit
Party will be used to purchase or carry any such Margin Stock or to extend credit



71









 




to others for the
purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is
inconsistent with, the provisions of Regulation T, U or X of the Board of Governors.




     4.18. Employee Matters. Neither Holdings nor any of its Subsidiaries is engaged in any unfair
labor practice that would reasonably be expected to have a Material Adverse Effect. There is (a)
no unfair labor practice complaint pending against Holdings or any of its Subsidiaries, or to the
best knowledge of Holdings and the Company, threatened against any of them before the National
Labor Relations Board and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement that is so pending against Holdings or any of its Subsidiaries or
to the best knowledge of Holdings and the Company, threatened against any of them, (b) no strike or
work stoppage in existence or threatened involving Holdings or any of its Subsidiaries that would
reasonably be expected to have a Material Adverse Effect, and (c) to the best knowledge of
Holdings and the Company, no union representation question existing with respect to the employees
of Holdings or any of its Subsidiaries and, to the best knowledge of Holdings and the Company, no
union organization activity that is taking place, except (with respect to any matter specified in
clause (a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably
likely to have a Material Adverse Effect.



     4.19. Employee Benefit Plans. Holdings, each of its Subsidiaries and each of their respective
ERISA Affiliates are in compliance in all material respects with all applicable provisions and
requirements of ERISA and the Internal Revenue Code and the regulations and published
interpretations thereunder with respect to each Employee Benefit Plan, and have performed all their
obligations in all material respects under each Employee Benefit Plan. Each Employee Benefit Plan
which is intended to qualify under Section 401(a) of the Internal Revenue Code has received a
favorable determination letter from the Internal Revenue Service indicating that such Employee
Benefit Plan is so qualified and nothing has occurred subsequent to the issuance of such
determination letter which would cause such Employee Benefit Plan to lose its qualified status. No
liability to the PBGC (other than required premium payments), the Internal Revenue Service, any
Employee Benefit Plan or any trust established under Title IV of ERISA has been or is expected to
be incurred by Holdings, any of its Subsidiaries or any of their ERISA Affiliates. No ERISA Event
has occurred or is reasonably expected to occur. Except as disclosed in the Historical Financial
Statements and except to the extent required under Section 4980B of the Internal Revenue Code
or similar state laws, no Employee Benefit Plan provides health or welfare benefits (through the
purchase of insurance or otherwise) for any retired or former employee of Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates. The present value of the aggregate
benefit liabilities under each Pension Plan sponsored, maintained or contributed to by Holdings,
any of its Subsidiaries or any of their ERISA Affiliates (determined as of the end of the most
recent plan year on the basis of the actuarial assumptions specified for funding purposes in the
most recent actuarial valuation for such Pension Plan), did not exceed the aggregate current value
of the assets of such Pension Plan. As of the most recent valuation date for each Multiemployer
Plan for which the actuarial report is available, the potential liability of Holdings, its
Subsidiaries and their respective ERISA Affiliates for a complete withdrawal from such
Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such
potential liability for a complete withdrawal from all Multiemployer Plans, based on information
available pursuant to Section 4221(e) of ERISA is zero. Holdings, each of its Subsidiaries and
each of their ERISA Affiliates have complied with



72









 




the requirements of Section 515 of ERISA with
respect to each Multiemployer Plan and are not in material “default” (as defined in Section
4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.




     4.20. Certain Fees. No broker’s or finder’s fee or commission will be payable with respect
hereto or any of the transactions contemplated hereby.



     4.21. Solvency. Each Credit Party is and, upon the incurrence of any Obligation by such
Credit party on any date on which this representation and warranty is made, will be, Solvent.



     4.22. Compliance with Statutes, etc. Each of Holdings and its Subsidiaries is in compliance
with all applicable statutes, regulations and orders of, and all applicable restrictions imposed
by, all Governmental Authorities, in respect of the conduct of its business and the ownership of
its property (including compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or governing its business and the requirements of any permits issued under such
Environmental Laws with respect to any such Real Estate Asset or the operations of Holdings or any
of its Subsidiaries), except such non-compliance that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



     4.23. Disclosure. No representation or warranty of any Credit Party contained in any Credit
Document or in any other documents, certificates or written statements furnished to Lenders by or
on behalf of Holdings or any of its Subsidiaries for use in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to state a material
fact (known to Holdings or the Company, in the case of any document not furnished by either of
them) necessary in order to make the statements contained herein or therein not misleading in light
of the circumstances in which the same were made. Any projections and pro forma financial
information contained in such materials are based upon good faith estimates and assumptions
believed by Holdings or the Company to be reasonable at the time made, it being recognized by
Lenders that such projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ from the
projected results. There are no facts known (or which should upon the reasonable exercise of
diligence be known) to the Company (other than matters of a general economic nature) that,
individually or in the aggregate, would reasonably be expected to result in a Material Adverse
Effect and that have not been disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the transactions contemplated hereby.



     4.24. Patriot Act. To the extent applicable, the Company and each of its Subsidiaries is in
compliance, in all material respects, with the (i) Trading with the Enemy Act, as amended, and each
of the foreign assets control regulations of the Untied States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating
thereto, and (ii) Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA Patriot Act of 2001). No part of the proceeds of the Loans
will be used, directly or indirectly, for any payments to any governmental official or employee,
political party, official of a political party, candidate for political office, or anyone else
acting in an official capacity, in order to obtain, retain or direct business or obtain any



73









 




improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.




SECTION 5. AFFIRMATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit,
Holdings and the Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 5.



     5.1. Financial Statements and Other Reports. The Company will deliver to Administrative
Agent, with sufficient copies for the other Agents and Lenders:



          (a) Monthly Reports. As soon as available, and in any event within 30 days after the
end of each month during each Fiscal Year of the Company after the Closing Date, the unaudited
consolidated balance sheet of Holdings and its Subsidiaries as at the end of such month and the
related unaudited consolidated statements of income, stockholders’ equity and cash flows of
Holdings and its Subsidiaries for such month and for the period from the beginning of the then
current Fiscal Year to the end of such month, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current Fiscal Year, to the extent prepared
on a monthly basis, all in reasonable detail, together with a Financial Officer Certification with
respect thereto;




          (b) Quarterly Financial Statements. As soon as available, and in any event within 45
days after the end of each of the first three Fiscal Quarters of each Fiscal Year and within 90
days after the end of the last Fiscal Quarter of each Fiscal Year, the unaudited consolidated
balance sheets of Holdings and its Subsidiaries as at the end of such Fiscal Quarter
and the related unaudited consolidated statements of income, stockholders’ equity and cash
flows of Holdings and its Subsidiaries for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each
case in comparative form the corresponding figures for the corresponding periods of the previous
Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal Year, all
in reasonable detail, together with a Financial Officer Certification and a Narrative Report with
respect thereto;




          (c) Annual Financial Statements. As soon as available, and in any event within 90
days after the end of the Company’s Fiscal Year, (i) the consolidated balance sheets of Holdings
and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of
income, stockholders’ equity and cash flows of Holdings and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures for the previous Fiscal
Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such
financial statements, in reasonable detail, together with a Financial Officer Certification and a
Narrative Report with respect thereto; and (ii) with respect to such consolidated financial
statements a report thereon of Ernst & Young LLP or other independent certified public accountants
of recognized national standing selected by the Company, and




74









 







reasonably satisfactory to
Administrative Agent (which report shall be unqualified as to going concern and scope of audit, and
shall state that such consolidated financial statements fairly present, in all material respects,
the consolidated financial position of Holdings and its Subsidiaries as at the dates indicated and
the results of their operations and their cash flows for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such
financial statements) and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally accepted auditing
standards) together with a written statement by such independent certified public accountants
stating (1) that their audit examination has included a review of the terms of the Credit
Documents, (2) whether, in connection therewith, any condition or event that constitutes a Default
or an Event of Default has come to their attention and, if such a condition or event has come to
their attention, specifying the nature and period of existence thereof, and (3) that nothing has
come to their attention that causes them to believe that the information contained in any
Compliance Certificate is not correct in any material respect or that the matters set forth in such
Compliance Certificate are not stated in accordance with the terms hereof;




          (d) Compliance Certificate. Together with each delivery of financial statements of
Holdings and its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly executed and completed
Compliance Certificate;




          (e) Statements of Reconciliation after Change in Accounting Principles. If, as a
result of any change in accounting principles and policies from those used in the preparation of
the Historical Financial Statements, the consolidated financial statements of Holdings and its
Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material respect
from the consolidated financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been made, then, together
with the first delivery of such financial statements after such change, one or more statements of
reconciliation for all such prior financial statements in form and substance satisfactory to
Administrative Agent;




          (f) Notice of Default. Promptly upon any officer of Holdings or the Company obtaining
knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that
notice has been given to Holdings or the Company with respect thereto; (ii) that any Person has
given any notice to Holdings or any of its Subsidiaries or taken any other action with respect to
any event or condition set forth in Section 8.1(b); or (iii) of the occurrence of any event or
change that has caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect, a certificate of its Authorized Officer specifying the nature and period of existence of
such condition, event or change, or specifying the notice given and action taken by any such Person
and the nature of such claimed Event of Default, Default, default, event or condition, and what
action the Company has taken, is taking and proposes to take with respect thereto;




          (g) Notice of Litigation. Promptly upon any officer of Holdings or the Company
obtaining knowledge of (i) the institution of, or written threat of, any Adverse Proceeding not
previously disclosed in writing by the Company to Lenders, or (ii) any material development in any
Adverse Proceeding that, in the case of either clause (i) or (ii), if not cured or if adversely




75









 







determined would be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or
otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of,
the transactions contemplated hereby, written notice thereof together with such other information
as may be reasonably available to Holdings or the Company to enable Lenders and their counsel to
evaluate such matters;




          (h) ERISA. (i) Promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event, a written notice specifying the nature thereof, what action
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking
or proposes to take with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) with
reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) filed by Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates with the Internal Revenue Service with respect to each Pension Plan; (2) all notices
received by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such other documents or
governmental reports or filings relating to any Employee Benefit Plan as Administrative Agent shall
reasonably request;




          (i) Financial Plan. As soon as practicable and in any event no later than thirty (30)
days after the end of each Fiscal Year starting in 2007, a consolidated plan and financial forecast
for the following Fiscal Year (a “Financial Plan"), including (i) a forecasted consolidated balance
sheet and forecasted consolidated statements of income and cash flows of Holdings and its
Subsidiaries for such Fiscal Year, together with pro forma Compliance Certificates for such Fiscal
Year and an explanation of the assumptions on which such forecasts are based, (ii) forecasted
consolidated statements of income and cash flows of Holdings and its Subsidiaries for each quarter
of the Fiscal Year included in the Financial Plan and (iii) forecasts
demonstrating projected compliance with the requirements of Section 6.7 for the Fiscal Year
included in the Financial Plan;




          (j) Insurance Report. As soon as practicable and in any event by the last day of each
Fiscal Year, a certificate by the chief financial officer of the Company in form and substance
satisfactory to Administrative Agent confirming that all material insurance coverage is being
maintained in accordance with Section 5.5 as of the date of such certificate by Holdings and its
Subsidiaries;




          (k) Notice of Change in Board of Directors. With reasonable promptness, written
notice of any change in the board of directors (or similar governing body) of Holdings or the
Company;




          (l) Notice Regarding Material Contracts. Promptly, and in any event within ten
Business Days (i) after any Material Contract of Holdings or any of its Subsidiaries is terminated
or amended in a manner that is materially adverse to Holdings or such Subsidiary, as the case may
be, or (ii) any new Material Contract is entered into, a written statement describing such event,
with copies of such material amendments or new contracts, delivered to Administrative Agent (to the
extent such delivery is permitted by the terms of any such Material Contract, provided, no such
prohibition on delivery shall be effective if it were bargained for by Holdings




76









 







or its applicable
Subsidiary with the intent of avoiding compliance with this Section 5.1(l)), and an explanation of
any actions being taken with respect thereto;




          (m) Information Regarding Collateral. (a) The Company will furnish to Collateral
Agent prompt written notice of any change (i) in any Credit Party’s corporate name, (ii) in any
Credit Party’s identity or corporate structure or (iii) in any Credit Party’s Federal Taxpayer
Identification Number. The Company agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise
that are required in order for Collateral Agent to continue at all times following such change to
have a valid, legal and perfected security interest in all the Collateral and for the Collateral at
all times following such change to have a valid, legal and perfected security interest as
contemplated in the Collateral Documents. The Company also agrees promptly to notify Collateral
Agent if any material portion of the Collateral is damaged or destroyed;




          (n) Annual Collateral Verification. Each year, at the time of delivery of annual
financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(c), the
Company shall deliver to Collateral Agent a certificate of its Authorized Officer (i) either
confirming that there has been no change in the information (other than such changes which
individually or in the aggregate would not reasonably be expected to have a Material Adverse
Effect) set forth in the Collateral Questionnaire delivered on the Closing Date (as such
information may have been updated, supplemented or modified prior to the delivery of such
certificate pursuant to the Credit Documents) or the date of the most recent certificate delivered
pursuant to this Section and/or identifying such changes (ii) certifying that all Uniform
Commercial Code financing statements (including fixtures filings, as applicable) or other
appropriate filings, recordings or registrations, have been delivered to Administrative Agent in
accordance with the Credit Documents for recordation in each governmental, municipal or other
appropriate office in each jurisdiction identified pursuant to the information referred to in
clause (i) above to the extent necessary to protect and perfect the security interests under the
Collateral Documents;




          (o) Other Information. (A) Promptly upon their becoming available, copies of (i) all
financial statements, reports, notices and proxy statements sent or made available generally by
Holdings to its security holders acting in such capacity or by any Subsidiary of Holdings to its
security holders other than Holdings or another Subsidiary of Holdings, (ii) all regular and
periodic reports and all registration statements and prospectuses, if any, filed by Holdings or any
of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or
any governmental or private regulatory authority, (iii) all press releases and other statements
made available generally by Holdings or any of its Subsidiaries to the public concerning material
developments in the business of Holdings or any of its Subsidiaries, and (B) such other information
and data with respect to Holdings or the Company or any of its Subsidiaries as from time to time
may be reasonably requested by Administrative Agent or any Lender; and




          (p) Certification of Public Information. Concurrently with the delivery of any
document or notice required to be delivered pursuant to this Section 5.1, Holdings shall indicate
in writing whether such document or notice contains Nonpublic Information. Holdings and each
Lender acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders that do




77









 







not
wish to receive material non-public information with respect to Holdings, its Subsidiaries or their
securities) and, if documents or notices required to be delivered pursuant to this Section 5.1 or
otherwise are being distributed through IntraLinks/IntraAgency or another relevant website (the
"Platform”), any document or notice that Holdings has indicated contains Nonpublic Information
shall not be posted on that portion of the Platform designated for such public-side Lenders. If
Holdings has not indicated whether a document or notice delivered pursuant to this Section 5.1
contains Nonpublic Information, the Administrative Agent reserves the right to post such document
or notice solely on that portion of the Platform designated for Lenders who wish to receive
material nonpublic information with respect to Holdings, its Subsidiaries and their securities.




     5.2. Existence. Except as otherwise permitted under Section 6.8, each Credit Party will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its
existence and all rights and franchises, licenses and permits material to its business;
provided, no Credit Party or any of its Subsidiaries shall be required to preserve any such
existence, right or franchise, licenses and permits if such Credit Party or any of its Subsidiaries
shall determine that the failure of such preservation would not reasonably be expected to have a
Material Adverse Effect.



     5.3. Payment of Taxes and Claims. Each Credit Party will, and will cause each of its
Subsidiaries to, pay all material Taxes imposed upon it or any of its properties or assets or in
respect of any of its income, businesses or franchises before any penalty or fine accrues thereon,
and all claims (including claims for labor, services, materials and supplies) for sums that have
become due and payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with respect thereto;
provided, no such Tax or claim need be paid if it is being contested in good faith by
appropriate proceedings promptly instituted and
diligently conducted, so long as (a) adequate reserve or other appropriate provision, as shall
be required in conformity with GAAP shall have been made therefor, and (b) in the case of a Tax or
claim which has or may become a Lien against any of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or
claim. No Credit Party will, nor will it permit any of its Subsidiaries to, file or consent to the
filing of any consolidated income tax return with any Person (other than Holdings or any of its
Subsidiaries).



     5.4. Maintenance of Properties. Each Credit Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the business of the
Company and its Subsidiaries taken as a whole and from time to time will make or cause to be made
all appropriate repairs, renewals and replacements thereof.



     5.5. Insurance. The Company will maintain or cause to be maintained, with financially sound
and reputable insurers, such public liability insurance, third party property damage insurance,
business interruption insurance and casualty insurance with respect to liabilities, losses or
damage in respect of the assets, properties and businesses of the Company and its Subsidiaries as
may customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms



78









 




and conditions as shall be customary for such Persons. Without limiting the generality of the
foregoing, the Company will maintain or cause to be maintained (a) flood insurance with respect to
each Flood Hazard Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of the Board of
Governors, and (b) replacement value casualty insurance on the Collateral under such policies of
insurance, with such insurance companies, in such amounts, with such deductibles, and covering such
risks as are at all times carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses. Each such policy of insurance shall (i) name
Collateral Agent, on behalf of Secured Parties as an additional insured thereunder as its interests
may appear and (ii) in the case of each property insurance policy, contain a loss payable clause or
endorsement, satisfactory in form and substance to Collateral Agent, that names Collateral Agent,
on behalf of Lenders as the loss payee thereunder and provides for at least thirty days’ prior
written notice to Collateral Agent of any modification or cancellation of such policy (or 10 days
prior written notice in the event of cancellation for non-payment of the applicable premium).




     5.6. Inspections. Each Credit Party will, and will cause each of its Subsidiaries to, permit
any authorized representatives designated by any Lender to visit and inspect any of the properties
of any Credit Party and any of its respective Subsidiaries, to inspect, copy and take extracts from
its and their financial and accounting records, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants, all upon reasonable notice
and at such reasonable times during normal business hours and as often as may reasonably be
requested. If such visit and inspection occurs at a time when no Default or Event of Default has
occurred and
is continuing, such visit and inspection by Lenders shall be coordinated through the
Administrative Agent and shall be limited to one visit and inspection during any consecutive
twelve-month period.



     5.7. Lenders Meetings. Holdings and the Company will, upon the request of Administrative
Agent or Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once
during each Fiscal Year to be held at the Company’s corporate offices (or at such other location as
may be agreed to by the Company and Administrative Agent) at such time as may be agreed to by the
Company and Administrative Agent; provided, that any such meeting may be held by conference
call if agreed to by the Administrative Agent in its reasonable discretion.



     5.8. Compliance with Laws. Each Credit Party will comply, and shall cause each of its
Subsidiaries and all other Persons, if any, on or occupying any Facilities to comply, with the
requirements of all applicable laws, rules, regulations and orders of any Governmental Authority
(including all Environmental Laws), noncompliance with which would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.



     5.9. Environmental.



          (a) Environmental Disclosure. Holdings will deliver to Administrative Agent and
Lenders:




79









 









          (i) as soon as practicable following receipt thereof, copies of all environmental
audits, investigations, analyses and reports of any kind or character, whether prepared by
personnel of Holdings or any of its Subsidiaries or by independent consultants, governmental
authorities or any other Persons, with respect to significant environmental matters at any
Facility or with respect to any Environmental Claims which would reasonably be expected to
result in a Material Adverse Effect or, individually, to give rise to Environmental Claims
resulting in Holdings or any of its Subsidiaries incurring liability or expenses in excess
of $2,500,000;




          (ii) promptly upon the occurrence thereof, written notice describing in reasonable
detail (1) any Release required to be reported to any federal, state or local governmental
or regulatory agency under any applicable Environmental Laws, (2) any remedial action taken
by Holdings or any other Person in response to (A) any Hazardous Materials Activities the
existence of which has a reasonable possibility of resulting in one or more Environmental
Claims having, individually or in the aggregate, a Material Adverse Effect or, individually,
to give rise to Environmental Claims resulting in Holdings or any of its Subsidiaries
incurring liability or expenses in excess of $2,500,000, or (B) any Environmental Claims
that, individually or in the aggregate, would reasonably be expected to result in a Material
Adverse Effect or, individually, to give rise to Environmental Claims resulting in Holdings
or any of its Subsidiaries incurring liability or expenses in excess of $2,500,000, and (3)
Holdings or the Company’s discovery of any occurrence or condition on any real property
adjoining or in the vicinity of any Facility that would reasonably be expected to cause such Facility
or any part thereof to be subject to any material restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws;




          (iii) as soon as practicable following the sending or receipt thereof by Holdings or
any of its Subsidiaries, a copy of any and all written communications with respect to (1)
any Environmental Claims that, individually or in the aggregate, have a reasonable
possibility of giving rise to a Material Adverse Effect or, individually, to give rise to
Environmental Claims resulting in Holdings or any of its Subsidiaries incurring liability or
expenses in excess of $2,500,000, (2) any Release required to be reported to any federal,
state or local governmental or regulatory agency, and (3) any request for information from
any governmental agency that suggests such agency is investigating whether Holdings or any
of its Subsidiaries may be potentially responsible for any Hazardous Materials Activity;




          (iv) prompt written notice describing in reasonable detail (1) any proposed acquisition
of stock, assets, or property by Holdings or any of its Subsidiaries that would reasonably
be expected to (A) expose Holdings or any of its Subsidiaries to, or result in,
Environmental Claims that would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or, individually, to give rise to Environmental Claims
resulting in Holdings or any of its Subsidiaries incurring liability or expenses in excess
of $2,500,000 or (B) affect the ability of Holdings or any of its Subsidiaries to maintain
in full force and effect all material Governmental Authorizations required under any
Environmental Laws for their respective operations and (2) any proposed action to be taken
by Holdings or any of its Subsidiaries to modify current



80









 






operations in a manner that would
reasonably be expected to subject Holdings or any of its Subsidiaries to any additional
material obligations or requirements under any Environmental Laws; and




          (v) with reasonable promptness, such other documents and information as from time to
time may be reasonably requested by Administrative Agent in relation to any matters
disclosed pursuant to this Section 5.9(a).



          (b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly take, and
shall cause each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure
any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that would
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or,
individually, to give rise to Environmental Claims resulting in Holdings or any of its Subsidiaries
incurring liability or expenses in excess of $2,500,000, and (ii) make an appropriate response to
any Environmental Claim against such Credit Party or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect or, individually, to
give rise to Environmental Claims resulting in Holdings or any of its Subsidiaries incurring
liability or expenses in excess of $2,500,000.




     5.10. Subsidiaries. In the event that any Person becomes a Domestic Subsidiary of the Company, the Company
shall (a) promptly cause such Domestic Subsidiary to become a Guarantor hereunder and a Grantor
under the Pledge and Security Agreement by executing and delivering to Administrative Agent and
Collateral Agent a Counterpart Agreement, and (b) take all such actions and execute and deliver, or
cause to be executed and delivered, all such documents, instruments, agreements, and certificates
as are similar to those described in Sections 3.1(b), 3.1(h), 3.1(i), 3.1(j) and 3.1(m). In the
event that any Person becomes a Foreign Subsidiary of the Company, and the ownership interests of
such Foreign Subsidiary are owned by the Company or by any Domestic Subsidiary thereof, the Company
shall, or shall cause such Domestic Subsidiary to, deliver, all such documents, instruments,
agreements, and certificates as are similar to those described in Section 3.1(b), and the Company
shall take, or shall cause such Domestic Subsidiary to take, all of the actions referred to in
Section 3.1(i)(i) necessary to grant and to perfect a First Priority Lien in favor of Collateral
Agent, for the benefit of Secured Parties, under the Pledge and Security Agreement in 65% of such
ownership interests. With respect to each such Subsidiary, the Company shall promptly send to
Administrative Agent written notice setting forth with respect to such Person (i) the date on which
such Person became a Subsidiary of the Company, and (ii) all of the data required to be set forth
in Schedules 4.1 and 4.2 with respect to all Subsidiaries of the Company; provided, such
written notice shall be deemed to supplement Schedule 4.1 and 4.2 for all purposes hereof.



     5.11. Additional Material Real Estate Assets. In the event that any Credit Party acquires a
Material Real Estate Asset and such interest has not otherwise been made subject to the Lien of the
Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties, then such
Credit Party shall promptly take all such actions and execute and deliver, or cause to be executed
and delivered, all such mortgages, documents, instruments, agreements, opinions and certificates
similar to those described in Sections 3.1(h), 3.1(i) and 3.1(j) with respect to each such Material
Real Estate Asset that Collateral Agent shall reasonably request to



81









 




create in favor of Collateral
Agent, for the benefit of Secured Parties, a valid and, subject to any filing and/or recording
referred to herein, perfected First Priority security interest in such Material Real Estate Assets.
In addition to the foregoing, the Company shall, at the request of Requisite Lenders, deliver,
from time to time, to Administrative Agent such appraisals as are required by law or regulation of
Real Estate Assets with respect to which Collateral Agent has been granted a Lien.




     5.12. Interest Rate Protection. No later than sixty (60) days following the Closing Date and
at all times thereafter until the third anniversary of the Closing Date, the Company shall obtain
and cause to be maintained protection against fluctuations in interest rates pursuant to one or
more Interest Rate Agreements in form and substance reasonably satisfactory to Administrative Agent
and Syndication Agent, in order to ensure that no less than 50% of the aggregate principal amount
of the total Indebtedness of the Company and its Subsidiaries then outstanding is either (i)
subject to such Interest Rate Agreements or (ii) indebtedness that bears interest at a fixed rate.



     5.13. Further Assurances. At any time or from time to time upon the request of Administrative
Agent, each Credit Party will, at its expense, promptly execute, acknowledge and deliver such
further documents and do such other acts and things as Administrative Agent or Collateral Agent may
reasonably
request in order to effect fully the purposes of the Credit Documents. In furtherance and not
in limitation of the foregoing, each Credit Party shall take such actions as Administrative Agent
or Collateral Agent may reasonably request from time to time to ensure that the Obligations are
guaranteed by the Guarantors and are secured by substantially all of the assets of Holdings and its
Subsidiaries and all of the outstanding Capital Stock of the Company’s Subsidiaries, in each case,
subject to the limitations contained in the Collateral Documents.



     5.14. Miscellaneous Business Covenants. Unless otherwise consented to by Agents or Requisite
Lenders:



          (a) Non-Consolidation. Holdings will and will cause each of its Subsidiaries to: (i)
maintain entity records and books of account separate from those of any other entity which is an
Affiliate of such entity; and (ii) provide that its board of directors or other analogous governing
body will hold all appropriate meetings to authorize and approve such entity’s actions, which
meetings will be separate from those of other entities.




          (b) Cash Management Systems. Holdings and its Subsidiaries shall establish and
maintain customary and reasonable cash management systems reasonably acceptable to the
Administrative Agent. Notwithstanding any of the foregoing, Holdings shall not permit its Foreign
Subsidiaries to hold Cash and Cash Equivalent balances at any time in excess of an amount equal to
$20,000,000 in the aggregate.




     5.15. Post-Closing Obligations. (a) Within sixty (60) Business Days after the Closing Date,
the Company shall repay in full the Unpaid Refinancing Amount.



          (b) Within ten (10) Business Days after the Closing Date, the Company shall wind up,
liquidate and dissolve Bellwether Distribution L.L.C.




82









 








          (c) The Company shall use reasonable best efforts to cause each of the Landlord Personal
Property Collateral Access Agreements listed on Schedule 3.1(i) to be executed by the landlord of
the applicable Leasehold Property and delivered to the Administrative Agent within thirty (30) days
after the Closing Date.




          (d) Within fifteen (15) Business Days after the Closing Date, the Company shall deliver to the
Administrative Agent 65% of all the Capital Stock of each of R T C do Brasil Ltda and Fomento
Grafico Mexicano S.A. de C.V.




SECTION 6. NEGATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit,
Holdings (with respect to Section 6.13) and the Company shall perform, and shall cause each of the
Company’s Subsidiaries to perform, all covenants in this Section 6.



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



          (a) the Obligations, including all New First Lien Term Loan Exposure incurred as permitted by
Section 2.24;




          (b) Indebtedness of any Guarantor Subsidiary to the Company or to any other Guarantor
Subsidiary, or of the Company to any Guarantor Subsidiary; provided, (i) all such
Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a First
Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be
unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant
to the terms of any applicable promissory notes or an intercompany subordination agreement that in
any such case, is reasonably satisfactory to Administrative Agent, and (iii) any payment by any
such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto
reduction of the amount of any Indebtedness owed by such Subsidiary to the Company or to any of its
Subsidiaries for whose benefit such payment is made;




          (c) The loans made on the Closing Date under the Second Lien Term Facility;




          (d) Indebtedness incurred by Holdings or any of its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations, or from
guaranties or letters of credit, surety bonds or performance bonds securing the performance of the
Company or any such Subsidiary pursuant to such agreements, in connection with Permitted
Acquisitions or permitted dispositions of any business, assets or Subsidiary of Holdings or any of
its Subsidiaries;




          (e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations incurred in the ordinary course of business;




83









 








          (f) Indebtedness in respect of netting services, overdraft protections and otherwise in
connection with deposit accounts;




          (g) guaranties in the ordinary course of business of the obligations of suppliers, customers,
franchisees and licensees of the Company and its Subsidiaries;




          (h) guaranties by the Company of Indebtedness of a Guarantor Subsidiary or guaranties by a
Subsidiary of the Company of Indebtedness of the Company or a Guarantor Subsidiary with respect, in
each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1;




          (i) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements
of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements
evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii)
refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not
less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or
extended, and the average life to maturity thereof is greater
than or equal to that of the Indebtedness being refinanced or extended; provided, such
Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A)
include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being
extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed,
extended or refinanced or (C) be incurred, created or assumed if any Default or Event of Default
has occurred and is continuing or would result therefrom;




          (j) Indebtedness with respect to (i) Capital Leases and (ii) purchase money Indebtedness
(including any purchase money Indebtedness acquired in connection with a Permitted Acquisition) in
an aggregate amount not to exceed at any time $7,000,000; provided, that any such
Indebtedness as described in clause (ii) above (x) shall be secured only to the asset acquired in
connection with the incurrence of such Indebtedness, and (y) shall constitute not less than 75% of
the aggregate consideration paid with respect to such asset;




          (k) prior to 60 Business Days after the Closing Date, Indebtedness with respect to the
Existing Subordinated Notes in an amount not to exceed the Unpaid Refinancing Amount;




          (l) Indebtedness (not relating to the borrowing of money) incurred to finance insurance
premiums in the ordinary course of business;




          (m) (i) Indebtedness of a Credit Party owed to any Foreign Subsidiary of Holdings,
provided that all such Indebtedness shall be (x) evidenced by a promissory note reasonably
satisfactory to Administrative Agent and (y) unsecured and subordinated in right of payment to the
payment in full of the Obligations pursuant to an intercompany subordination agreement reasonably
satisfactory to the Administrative Agent and (ii) Indebtedness of any Foreign Subsidiary of
Holdings owed to any Credit Party to the extent that the aggregate amount of such Indebtedness
(other than Indebtedness as permitted in Section 6.8(h)), when aggregated with all Investments
pursuant to Section 6.6(j), does not exceed $10,000,000 at any time; provided that all such
Indebtedness shall be evidenced by a promissory note reasonably




84









 







satisfactory to Administrative
Agent all such notes shall be subject to a First Priority Lien pursuant to the Pledge and Security
Agreement;




          (n) (i) Indebtedness of any Foreign Subsidiary of Holdings, consisting of local lines of
credit incurred in the ordinary course of business of such Foreign Subsidiary and (ii) guaranties
by the Company or a Guarantor Subsidiary of the Indebtedness of a Foreign Subsidiary of Holdings
(which Indebtedness is otherwise permitted hereunder) in an aggregate amount not to exceed at any
time $12,000,000;




          (o) unsecured Indebtedness in an aggregate outstanding amount not to exceed $2,500,000 at any
time consisting of repurchase obligations with respect to Capital Stock issued to directors,
officers and employees arising upon the death, disability or termination of employment of such
director, officer or employee, in each case, on terms and provisions reasonably satisfactory to the
Administrative Agent;




          (p) guaranties by the Company or a Guarantor Subsidiary of loans and advances permitted by
Section 6.6(f);




          (q) Indebtedness owed to any Person (including obligations in respect of letters of credit for
the benefit of such Person) providing workers’ compensation, health, disability or other employee
benefits or property, casualty or liability insurance pursuant to reimbursement or indemnification
obligations to such Person, in each case incurred in the ordinary course of business;




          (r) Holdings Permitted Refinancing Indebtedness in an aggregate principal amount not to exceed
the aggregate principal face amount of the Existing Exchangeable Preferred Stock on the Closing
Date (after giving effect to the Recapitalization) plus any accumulated unpaid dividends in
arrears, accrued dividends and other similar amounts plus the amount of necessary fees and expenses
incurred in connection therewith and any premiums paid on the Existing Exchangeable Preferred Stock
that is repaid; and




          (s) other unsecured Indebtedness of the Company and its Subsidiaries, in an aggregate amount
not to exceed at any time $4,000,000.




     6.2. Liens. The Company shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property
or asset of any kind (including any document or instrument in respect of goods or accounts
receivable) of the Company or any of its Subsidiaries, whether now owned or hereafter acquired, or
any income or profits therefrom, or file or permit the filing of, or permit to remain in effect,
any financing statement or other similar notice of any Lien with respect to any such property,
asset, income or profits under the UCC of any State or under any similar recording or notice
statute, except:



          (a) Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to
any Credit Document;




          (b) Liens for Taxes if obligations with respect to such Taxes are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted;




85









 








          (c) statutory Liens of landlords, banks (and rights of set-off), of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 401 (a)(29) or 412(n) of the Internal Revenue Code or by ERISA),
in each case incurred in the ordinary course of business (i) for amounts not yet overdue or (ii)
for amounts that are overdue and that (in the case of any such amounts overdue for a period in
excess of five days) are being contested in good faith by appropriate proceedings, so long as such
reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made
for any such contested amounts;




          (d) Liens or deposits incurred in the ordinary course of business 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, trade contracts, performance, replevin and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money or other
Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced with
respect to any portion of the Collateral on account thereof;




          (e) easements, rights-of-way, zoning restrictions, encroachments, other similar encumbrances
incurred in the ordinary course of business and other minor defects or irregularities in title, in
each case which do not and will not interfere in any material respect with the ordinary conduct of
the business of the Company or any of its Subsidiaries taken as a whole;




          (f) any interest or title of a lessor or sublessor under any lease of real estate permitted
hereunder;




          (g) Liens solely on any cash earnest money deposits made by the Company or any of its
Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;




          (h) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property entered into in the ordinary course of business;




          (i) 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;




          (j) any zoning, easement, right-of-way or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real property and other similar
encumbrances incurred in the ordinary course of business and imperfections of title which would not
reasonably be expected to result in a Material Adverse Effect;




          (k) licenses of patents, trademarks and other intellectual property rights granted by Holdings
or any of its Subsidiaries in the ordinary course of business and not interfering in any respect
with the ordinary conduct of the business of the Company or such Subsidiary;




          (l) Liens described in Schedule 6.2 or on a title report delivered pursuant to Section
3.1(h)(ii);




86









 








          (m) Liens securing Indebtedness permitted pursuant to Section 6.1(j); provided, any
such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness;




          (n) Liens securing judgments for the payment of money (except to the extent giving a rise to
an Event of Default under Section 8.1(h));




          (o) Liens existing on any property or asset prior to the acquisition thereof by Holdings or
any of its Subsidiaries; provided that (i) any such Lien is not created in contemplation of
or in connection with such acquisition, (ii) any such Lien does not apply to any other property or
assets of Holdings or any of its Subsidiaries; and (iii) any such Lien does not materially
interfere with the use, occupancy and operation of any other property or assets of Holdings or any
of its Subsidiaries;




          (p) Liens on property of any Foreign Subsidiary of Holdings created solely for the purpose of
securing Indebtedness of such Foreign Subsidiary permitted by Section 6.1(n); provided that
(i) any such Liens shall only attach to the property of Foreign Subsidiaries and (ii) the fair
market value of such property shall not exceed $12,000,000; and




          (q) Liens on collateral securing obligations under the Second Lien Credit Agreement;
provided that such Liens are subordinated to the Liens securing the Secured Obligations in
accordance with the terms of the Intercreditor Agreement; and




          (r) other Liens on assets other than the Collateral securing Indebtedness in an aggregate
amount not to exceed $2,500,000 at any time outstanding




     6.3. No Further Negative Pledges. Except with respect to (a) as set forth in the Second Lien
Term Facility, (b) specific property encumbered to secure payment of particular Indebtedness or to
be sold pursuant to an executed agreement with respect to a permitted Asset Sale, (c) restrictions
in agreements governing any purchase money Liens or Capital Lease obligations otherwise permitted
hereby (provided that such restrictions are limited to property or assets secured by such Liens or
property or assets subject to such leases or similar agreements) and (d) by reason of customary
provisions restricting assignments, subletting or other transfers contained in leases, licenses and
similar agreements entered into in the ordinary course of business (provided that such restrictions
are limited to the property or assets secured by such Liens or the property or assets subject to
such leases, licenses or similar agreements, as the case may be) neither the Company nor any of its
Subsidiaries shall enter into any agreement prohibiting the creation or assumption of any Lien upon
any of its properties or assets, whether now owned or hereafter acquired.



     6.4. Restricted Junior Payments. The Company shall not, and shall not permit any of its
Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or
indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set
apart, any sum for any Restricted Junior Payment except that (a) the Company may make Restricted
Junior Payments to Holdings to the extent necessary to pay the Unpaid Refinancing Amount, if any,
provided such Restricted Junior Payment is made, or funds are set aside for such payment, within
sixty (60) Business Days of the Closing Date, (b) so long as no Default or Event of Default shall
have occurred and be continuing or shall be caused thereby, (i) the Company



87









 




may make Restricted
Junior Payments to Holdings in an aggregate amount not to exceed $1,000,000 in any Fiscal Year to
permit Holdings to pay management or similar fees to Sponsors or any of their Affiliates;
provided that notwithstanding any Event of Default, such fees shall continue to accrue and
be payable in full upon the subsequent cure or waiver of such Event of Default and (ii) the Company
may make Restricted Junior Payments to repurchase shares of its Capital Stock or rights, options or
units in respect thereof from directors, officers or employees of the Company and its Subsidiaries
(other than from the Sponsors or any entity owned or controlled by either Sponsor) upon their death
or other termination of employment with the Company in an aggregate amount since the Closing Date
paid in cash not to exceed $2,500,000; and (c) the Company may make Restricted Junior Payments to
Holdings to the extent necessary to permit Holdings to discharge the consolidated tax liabilities
of Holdings and its Subsidiaries, in each case so long as Holdings applies the amount of any such
Restricted Junior Payment for such purpose.




     6.5. Restrictions on Subsidiary Distributions. Except as provided herein, the Company shall
not, and shall not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of the Company to (a) pay dividends or make any other distributions on any of such
Subsidiary’s Capital Stock owned by the Company or any other Subsidiary of the Company, (b) repay
or prepay any Indebtedness owed by such Subsidiary to the Company or any other Subsidiary of the
Company, (c) make loans or advances to the Company or any other Subsidiary of the Company, or (d)
transfer any of its property or assets to the Company or any other Subsidiary of the Company other
than restrictions (i) in agreements evidencing Indebtedness permitted by Section 6.1(j) that impose
restrictions on the property so acquired, (ii) by reason of customary provisions restricting
assignments, subletting or other transfers contained in leases, licenses, joint venture agreements
and similar agreements entered into in the ordinary course of business, (iii) that are or were
created by virtue of any transfer of, agreement to transfer or option or right with respect to any
property, assets or Capital Stock not otherwise prohibited under this Agreement as described on
Schedule 6.5 and (iv) existing under the Second Lien Term Facility as in effect on the date hereof.



     6.6. Investments. The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including without limitation any
Joint Venture, except:



          (a) Investments in Cash and Cash Equivalents;




          (b) equity Investments owned as of the Closing Date in any Subsidiary and Investments made
after the Closing Date in the Company and any wholly-owned Guarantor Subsidiaries of the Company;




          (c) Investments (i) in any Securities received in satisfaction or partial satisfaction thereof
from financially troubled account debtors and (ii) deposits, prepayments and other credits to
suppliers made in the ordinary course of business consistent with the past practices of Holdings
and its Subsidiaries;




88









 








          (d) intercompany loans to the extent permitted under Sections 6.1(b) and 6.1(m)(ii) and
guaranties to the extent permitted under Section 6.1(n)(ii);




          (e) Consolidated Capital Expenditures permitted by Section 6.7(c);




          (f) loans and advances to directors, officers and employees of Holdings and its Subsidiaries
made (i) in the ordinary course of business, (ii) in an aggregate principal amount not to exceed
$500,000 in the aggregate and (iii) relating to the indemnification of liabilities relating to
arrangement described in Section 6.11(c);




          (g) Investments made constituting Permitted Acquisitions permitted pursuant to Section 6.8;




          (h) Investments described in Schedule 6.6;




          (i) Investments in Hedge Agreements;




          (j) Investments in Foreign Subsidiaries of Holdings (including Subsidiaries that are not
wholly-owned by Holdings or its Subsidiaries) in an aggregate amount not to exceed $10,000,000 at
any time when aggregated with all intercompany loans pursuant to Section 6.1(m)(ii);




          (k) other Investments (including Investments in Foreign Subsidiaries or Domestic Subsidiaries,
in each case that are not wholly-owned by the Company or any of its Subsidiaries and other Joint
Ventures) in an aggregate amount not to exceed at any time $5,000,000; provided that any
Investment made in a Subsidiary that is not wholly-owned by the Company or any of its Subsidiaries
and any Investment constituting a Joint Venture shall not, directly, or indirectly, result from the
disposal of Capital Stock of any Guarantor Subsidiary;




          (l) to the extent constituting an Investment, prepayments or deposits of utility costs and
prepayments, deposits or rent with respect to leasehold interests, in each case in the ordinary
course of business;




          (m) Investments representing non-cash consideration received by the Company in connection with
any Asset Sale permitted by Section 6.8(c);




          (n) to the extent constituting an Investment, the investment of Net Asset Sale Proceeds in
accordance with Section 2.14(a); and




          (o) other Investments (other than Investments in Foreign Subsidiaries of Holdings) in an
aggregate amount not to exceed at any time $10,000,000.



Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which results
in or facilitates in any manner any Restricted Junior payment not otherwise permitted under the
terms of Section 6.4.




89









 








     6.7. Financial Covenants.



          (a) Interest Coverage Ratio. The Company shall not permit the Interest Coverage Ratio
as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31,
2005 (giving pro forma effect to the consummation of the Recapitalization), to be less than the
correlative ratio indicated:




	 	 	 
	 	 	Interest
	Fiscal Quarter	 	Coverage Ratio
	December 31, 2005

	 	1.75:1.00
	March 31, 2006
	 	1.75:1.00
	June 30, 2006
	 	1.80:1.00
	September 30, 2006
	 	1.85:1.00
	December 31, 2006
	 	1.90:1.00
	March 31, 2007
	 	1.95:1.00
	June 30, 2007
	 	2.00:1.00
	September 30, 2007
	 	2.10:1.00
	December 31, 2007
	 	2.15:1.00
	March 31, 2008
	 	2.15:1.00
	June 30, 2008
	 	2.15:1.00
	September 30, 2008
	 	2.15:1.00
	December 31, 2008
	 	2.30:1.00
	March 31, 2009
	 	2.30:1.00
	June 30, 2009
	 	2.30:1.00
	September 30, 2009
	 	2.30:1.00
	December 31, 2009
	 	2.65:1.00
	March 31, 2010
	 	2.65:1.00
	June 30, 2010
	 	2.65:1.00
	September 30, 2010
	 	2.65:1.00
	Thereafter
	 	3.00:1.00






          (b) Leverage Ratio. The Company shall not permit the Leverage Ratio as of the last
day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2005 (giving pro
forma effect to the consummation of the Recapitalization), to exceed the correlative ratio
indicated:




	 	 	 






90









 






	 	 	 
	Fiscal Quarter	 	Leverage Ratio
	December 31, 2005
	 	6.35:1.00
	March 31, 2006
	 	6.35:1.00
	June 30, 2006
	 	6.20:1.00
	September 30, 2006
	 	5.95:1.00
	December 31, 2006
	 	5.65:1.00
	March 31, 2007
	 	5.55:1.00
	June 30, 2007
	 	5.35:1.00
	September 30, 2007
	 	5.15:1.00
	December 31, 2007
	 	4.90:1.00
	March 31, 2008
	 	4.90:1.00
	June 30, 2008
	 	4.90:1.00
	September 30, 2008
	 	4.90:1.00
	December 31, 2008
	 	4.65:1.00
	March 31, 2009
	 	4.65:1.00
	June 30, 2009
	 	4.65:1.00
	September 30, 2009
	 	4.65:1.00
	December 31, 2009
	 	4.00:1.00
	March 31, 2010
	 	4.00:1.00
	June 30, 2010
	 	4.00:1.00
	September 30, 2010
	 	4.00:1.00
	Thereafter
	 	3.50:1.00






          (c) (c) Maximum Consolidated Capital Expenditures. The Company shall not, and shall
not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures in an aggregate
amount for the Company and its Subsidiaries in excess of $13,000,000 per Fiscal Year;
provided, such amount for any Fiscal Year shall be increased by an amount equal to the
excess, if any, (but in no event more than $5,000,000) of such amount for the previous Fiscal Year
(as adjusted in accordance with this proviso) over the actual amount of Consolidated Capital
Expenditures for such previous Fiscal Year.




          (d) Certain Calculations. With respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a “Subject Transaction"), for purposes of
determining compliance with the financial covenants set forth in this Section 6.7 (but not for
purposes of determining the Applicable Margin or Applicable Revolving Commitment Fee Percentage),
Consolidated Adjusted EBITDA shall be calculated with respect to such period on a pro forma basis
(including pro forma adjustments arising out of events which are directly attributable to a
specific transaction, are factually supportable and are expected to have a continuing impact, in
each case determined on a basis consistent with Article 11 of Regulation S-X promulgated under the
Securities Act and as interpreted by the staff of the Securities and Exchange Commission, which
would include, in each case to the extent consistent with Regulation S-X, cost savings resulting
from head count reduction, closure of facilities,




91









 







elimination of organizational and operational
duplication, cost savings from economies of scale (e.g. reductions in purchasing costs, etc.) and
similar restructuring charges, which pro forma adjustments shall be certified by the chief
financial officer of Holdings) using the historical audited financial statements of any business so
acquired or to be acquired or sold or to be sold and the consolidated financial statements of
Holdings and its Subsidiaries which shall be reformulated as if such Subject Transaction, and any
Indebtedness incurred or repaid in connection therewith, had been consummated or incurred or repaid
at the beginning of such period (and assuming that such Indebtedness bears interest during any
portion of the applicable measurement period prior to the relevant acquisition at the weighted
average of the interest rates applicable to outstanding Loans incurred during such period).




     6.8. Fundamental Changes; Disposition of Assets; Acquisitions. The Company shall not and
shall not permit any of its Subsidiaries to, enter into any transaction of merger or consolidation,
or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease or sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in
one transaction or a series of transactions, all or any part of its business, assets or property of
any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether
now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other
acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course
of business) the business, property or fixed assets of, or stock or other evidence of beneficial
ownership of, any Person or any division or line of business or other business unit of any Person,
except:



          (a) any Subsidiary of the Company may be merged with or into the Company or any Guarantor
Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property
or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to the Company or any Guarantor Subsidiary; provided, in the
case of such a merger, the Company or such Guarantor Subsidiary, as applicable shall be the
continuing or surviving Person;




          (b) sales or other dispositions of assets that do not constitute Asset Sales, including any
sales or disposition of assets (including inventory) in the ordinary course of business;




          (c) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of
non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in
the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales
made since the Closing Date, are less than $75,000,000; provided (1) the consideration
received for such assets shall be in an amount at least equal to the fair market value thereof
(determined in good faith by the board of directors of the Company (or similar governing body)),
(2) no less than 80% thereof shall be paid in Cash; provided, that this clause (2) shall
not apply to Asset Sales the aggregate consideration of which is less than $10,000,000 in any
Fiscal Year, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section
2.14(a);




          (d) disposals of obsolete, worn out or surplus property whether or not owned or hereafter
acquired in the ordinary course of business;




92









 








          (e) Permitted Acquisitions, the consideration for which constitutes (i) less than $25,000,000
in the aggregate in any Fiscal Year, and (ii) less than $100,000,000 in the aggregate from the
Closing Date to the date of determination; provided that in the case of Permitted
Acquisitions of non-US Persons, the consideration shall not exceed more than $20,000,000 in the
aggregate in any Fiscal Year;




          (f) Investments made in accordance with Section 6.6;




          (g) abandonment or other disposition of patents, trademarks or other intellectual property
that are, in the reasonable judgment of the Company, no longer economically
practicable to maintain or useful in the conduct of the business of the Company and its
Subsidiaries taken as a whole;




          (h) intercompany sale or transfer of patents, trademarks or other intellectual property
related to the textile products segment of the Company, the fair market value of which is less than
$30,000,000, to Day German Holdings GmbH or one of its Subsidiaries for consideration consisting of
cash and/or intercompany Indebtedness; provided that consideration received for such assets
shall be in an amount at least equal to the fair market value thereof (determined in good faith by
the board of directors of the Company); and




          (i) any sale or discount of accounts receivable arising in the ordinary course of business,
but only in connection with the compromise or collection thereof or to resolve disputes that occur
in the ordinary course of business.




     6.9. Disposal of Subsidiary Interests. Except for any sale of all of its interests in the
Capital Stock of any of its Subsidiaries in compliance with the provisions of Section 6.8, the
Company shall not, and shall not permit any of its Subsidiaries to, (a) directly or indirectly
sell, assign, pledge or otherwise encumber or dispose of any Capital Stock of any of its
Subsidiaries, except to qualify directors if required by applicable law; or (b) permit any of its
Subsidiaries directly or indirectly to sell, assign, pledge or otherwise encumber or dispose of any
Capital Stock of any of its Subsidiaries, except to the Company or another Subsidiary of the
Company (subject to the restrictions on such disposition otherwise imposed hereunder), or to
qualify directors if required by applicable law.



     6.10. Sales and Lease-Backs. The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease of any property (whether real, personal or mixed), whether
now owned or hereafter acquired, which the Company or such Subsidiary (a) has sold or transferred
or is to sell or to transfer to any other Person (other than the Company or any of its
Subsidiaries), or (b) intends to use for substantially the same purpose as any other property which
has been or is to be sold or transferred by such Credit Party to any Person (other than the Company
or any of its Subsidiaries) in connection with such lease.



     6.11. Transactions with Shareholders and Affiliates. The Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or the rendering of
any service) with any Affiliate of the Company on terms that are less favorable to the Company



93









 




or
that Subsidiary, as the case may be, than those that might be obtained at the time from a Person
who is not such a holder or Affiliate; provided, the foregoing restriction shall not apply
to (a) any transaction between the Company and any Guarantor Subsidiary or between Guarantor
Subsidiaries; (b) reasonable and customary fees paid to members of the board of directors (or
similar governing body) of the Company and its Subsidiaries; (c) compensation, indemnification and
contribution arrangements for officers, directors and agents and other employees of the Company and
its Subsidiaries entered into in the ordinary course of business; (d) transactions described in
Schedule 6.11, (e) any transaction approved by the disinterested directors, and (f) the Management
Consulting Agreements.




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



     6.13. Restrictions Affecting Holdings. (a) Holdings shall not engage in any business or
activity other than (i) holding 100% of the Capital Stock of the Company, (ii) performing its
obligations and activities incidental thereto under the Credit Documents, and to the extent not
inconsistent therewith, the Second Lien Term Facility, (iii) making Restricted Junior Payments and
Investments to the extent permitted by this Agreement and (iv) authorizing and administering stock
option and other equity compensation plans for its officers, directors and employees in the
ordinary course of business.



     (b) Holdings shall not incur, directly or indirectly, any Indebtedness or any other obligation
or liability whatsoever other than the Holdings Permitted Refinancing Indebtedness and other
obligations not constituting Indebtedness incurred in the ordinary course of business as a holding
company and not otherwise restricted by this Section 6.13.



     (c) Holdings will not own or acquire any assets (other than the Capital Stock of the Company)
or incur any liabilities (other than, to the extent permitted hereby, ordinary course trade
payables, employee compensation liabilities, liabilities under the Credit Documents, liabilities
under the Second Lien Term Facility, liabilities imposed by law, including tax liabilities and
other liabilities incidental to the maintenance of its existence and permitted activities).



     (d) Holdings will not create or suffer to exist any Lien upon any Holdings Collateral now
owned or hereafter acquired by it other than (i) the Liens created under the Collateral Documents
to which it is a party or permitted pursuant to Section 6.2 and (ii) Liens securing the Second Lien
Term Facility and other Indebtedness equally and ratably secured with the Second Lien Term Facility
to the extent the existence of such Liens would not otherwise constitute a Default or Event of
Default hereunder.



     (e) Holdings shall not (i) consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets to, any Person; (ii) sell or otherwise dispose of any
Capital Stock of any of the Company; (iii) create or acquire any Subsidiary or make or own any



94









 




Investment in any Person other than the Company; or (iv) fail to hold itself out to the public as a
legal entity separate and distinct from all other Persons.




     6.14. Limitation on Voluntary Payments and Amendments or Waivers of the Second Lien Term
Facility. The Company shall not, and shall not permit its Subsidiaries to, (a) make or offer to
make any optional or voluntary payment, prepayment, repurchase or redemption of, or otherwise
voluntarily or optionally defease any hypothec, loans under the Second Lien Term Facility or
segregate funds for any such payment, prepayment, repurchase, redemption or defeasance and (b)
agree to any material amendment, restatement, supplement or other modification to, or waiver of,
any of its material rights under the Second Lien Term Facility after the Closing Date
without in each case obtaining the prior written consent of Requisite Lenders to such
amendment, restatement, supplement or other modification or waiver.



     6.15. Fiscal Year. The Company shall not and shall not permit any of its Subsidiaries to
change its Fiscal Year-end from December 31.



SECTION 7. GUARANTY




     7.1. Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors
jointly and severally hereby irrevocably and unconditionally guaranty to Administrative Agent for
the ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations
when the same shall become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively,
the “Guaranteed Obligations").



     7.2. Contribution by Guarantors. All Guarantors desire to allocate among themselves
(collectively, the “Contributing Guarantors"), in a fair and equitable manner, their obligations
arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any
date by a Guarantor (a “Funding Guarantor") under this Guaranty such that its Aggregate Payments
exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution
from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing
Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with
respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the
ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor to (ii)
the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors
multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution
Amount” means, with respect to a Contributing Guarantor as of any date of determination, the
maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that
would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable
applicable provisions of state law; provided, solely for purposes of calculating the “Fair
Share Contribution Amount” with respect to any Contributing Guarantor for purposes of this Section
7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or



95









 




indemnification or any rights to or obligations of contribution
hereunder shall not be considered as assets or liabilities of such Contributing Guarantor.
“Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (1) the aggregate amount of all payments and distributions made
on or before such date by such Contributing Guarantor in respect of this Guaranty (including,
without limitation, in respect of this Section 7.2), minus (2) the aggregate amount of all payments
received on or before such date by such Contributing Guarantor from the other Contributing
Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder shall be determined as of
the date on which the related payment or distribution is made by the applicable Funding Guarantor.
The allocation among Contributing Guarantors of their obligations as set forth in this Section 7.2
shall not be construed in any way to limit the liability of any Contributing Guarantor hereunder.
Each Guarantor is a third party beneficiary to the contribution agreement set forth in this Section
7.2.




     7.3. Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally
agree, in furtherance of the foregoing and not in limitation of any other right which any
Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the
failure of the Company to pay any of the Guaranteed Obligations when and as the same shall become
due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay,
or cause to be paid, in Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an
amount equal to the sum of the unpaid principal amount of all Guaranteed Obligations then due as
aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including interest which,
but for the Company’s becoming the subject of a case under the Bankruptcy Code, would have accrued
on such Guaranteed Obligations, whether or not a claim is allowed against the Company for such
interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to
Beneficiaries as aforesaid.



     7.4. Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder
are irrevocable, absolute, independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than
payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:



          (a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty
is a primary obligation of each Guarantor and not merely a contract of surety;




          (b) the obligations of each Guarantor hereunder are independent of the obligations of the
Company and the obligations of any other guarantor (including any other Guarantor) of the
obligations of the Company, and a separate action or actions may be brought and prosecuted against
such Guarantor whether or not any action is brought against the Company or any of such other
guarantors and whether or not the Company is joined in any such action or actions;




96









 








          (c) subject to Section 7.2, payment by any Guarantor of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability
for any portion of the Guaranteed Obligations which has not been paid.




          (d) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability
hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest
on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations;
(ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with
respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto
and/or subordinate the payment of the same to the payment of any other obligations; (iii) request
and accept other guaranties of the Guaranteed Obligations and take and hold security for the
payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration,
any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed
Obligations, or any other obligation of any Person (including any other Guarantor) with respect to
the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the
benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or
manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have
against any such security, in each case as such Beneficiary in its discretion may determine
consistent herewith or the applicable Hedge Agreement and any applicable security agreement,
including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable, and even though such
action operates to impair or extinguish any right of reimbursement or subrogation or other right or
remedy of any Guarantor against the Company or any security for the Guaranteed Obligations; and
(vi) exercise any other rights available to it under the Credit Documents or any Hedge Agreements;
and




          (e) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable
and shall not be subject to any reduction, limitation, impairment, discharge or termination for any
reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any
of the following, whether or not any Guarantor shall have had notice or knowledge of any of them:
(i) any failure or omission to assert or enforce or agreement or election not to assert or enforce,
or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit
Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guaranteed
Obligations or any agreement relating thereto, or with respect to any other guaranty of or security
for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or
modification of, or any consent to departure from, any of the terms or provisions (including
provisions relating to events of default) hereof, any of the other Credit Documents, any of the
Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty
or security for the Guaranteed Obligations, in each case whether or not in accordance with the
terms hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other
guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any
time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of
payments received from any source (other




97









 







than payments received pursuant to the other Credit
Documents or any of the Hedge Agreements or from the proceeds of any security for the Guaranteed
Obligations, except to the extent such security also serves as collateral for indebtedness other
than the Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed
Obligations, even though any Beneficiary might have elected to apply such payment to any part or
all of the Guaranteed Obligations; (v) any Beneficiary’s consent to the change, reorganization or
termination of the corporate structure or existence of Holdings or any of its Subsidiaries and to
any corresponding
restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue
perfection of a security interest in any collateral which secures any of the Guaranteed
Obligations; (vii) any defenses, set-offs or counterclaims which the Company may allege or assert
against any Beneficiary in respect of the Guaranteed Obligations other than payment or other
satisfaction of any or all of the Guaranteed Obligations, including failure of consideration,
breach of warranty, statute of frauds, statute of limitations and usury; and (viii) any other act
or thing or omission, or delay to do any other act or thing, which may or might in any manner or to
any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.




     7.5. Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or performance by such
Guarantor, to (i) proceed against the Company, any other guarantor (including any other Guarantor)
of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security
held from the Company, any such other guarantor or any other Person, (iii) proceed against or have
resort to any balance of any Deposit Account or credit on the books of any Beneficiary in favor of
the Company or any other Person, or (iv) pursue any other remedy in the power of any Beneficiary
whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of the Company or any other Guarantor including any defense based on or
arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the liability of the
Company or any other Guarantor from any cause other than payment in full of the Guaranteed
Obligations; (c) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects more burdensome than
that of the principal; (d) any defense based upon any Beneficiary’s errors or omissions in the
administration of the Guaranteed Obligations, except behavior which amounts to bad faith; (e) (i)
any principles or provisions of law, statutory or otherwise, which are or might be in conflict with
the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder,
(ii) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or
the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv)
promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or insure
any security interest or lien or any property subject thereto; (f) notices, demands, presentments,
protests, notices of protest, notices of dishonor and notices of any action or inaction, including
acceptance hereof, notices of default hereunder, the Hedge Agreements or any agreement or
instrument related thereto, notices of any renewal, extension or modification of the Guaranteed
Obligations or any agreement related thereto, notices of any extension of credit to the Company and
notices of any of the matters referred to in Section 7.4 and any right to consent to any thereof;
and (g) any defenses or benefits that may be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.



98









 





     7.6. Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations
shall have been indefeasibly paid in full and the Revolving Commitments shall have terminated and
all Letters of Credit shall have expired or been cancelled, each Guarantor hereby waives any claim,
right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against the
Company or any other Guarantor or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its
obligations hereunder, in each case whether such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise and including without limitation (a) any
right of subrogation, reimbursement or indemnification that such Guarantor now has or may hereafter
have against the Company with respect to the Guaranteed Obligations, (b) any right to enforce, or
to participate in, any claim, right or remedy that any Beneficiary now has or may hereafter have
against the Company, and (c) any benefit of, and any right to participate in, any collateral or
security now or hereafter held by any Beneficiary. In addition, until the Guaranteed Obligations
shall have been indefeasibly paid in full and the Revolving Commitments shall have terminated and
all Letters of Credit shall have expired or been cancelled, each Guarantor shall withhold exercise
of any right of contribution such Guarantor may have against any other guarantor (including any
other Guarantor) of the Guaranteed Obligations, including, without limitation, any such right of
contribution as contemplated by Section 7.2. Each Guarantor further agrees that, to the extent the
waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification
such Guarantor may have against the Company or against any collateral or security, and any rights
of contribution such Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights any Beneficiary may have against the Company, to all right, title and
interest any Beneficiary may have in any such collateral or security, and to any right any
Beneficiary may have against such other guarantor. If any amount shall be paid to any Guarantor on
account of any such subrogation, reimbursement, indemnification or contribution rights at any time
when all Guaranteed Obligations shall not have been finally and indefeasibly paid in full, such
amount shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall
forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and
applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms hereof.



     7.7. Subordination of Other Obligations. Any Indebtedness of the Company or any Guarantor now
or hereafter held by any Guarantor (the “Obligee Guarantor") is hereby subordinated in right of
payment to the Guaranteed Obligations, and any such indebtedness collected or received by the
Obligee Guarantor after an Event of Default has occurred and is continuing and a demand for payment
has been made on such Guarantor pursuant to Section 7.3 shall be held in trust for Administrative
Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the
benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations but without
affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any
other provision hereof.



     7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect
until all of the Guaranteed Obligations shall have been paid in full and the Revolving Commitments
shall have terminated and all Letters of Credit shall have expired or been



99









 




cancelled. Each
Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future transactions
giving rise to any Guaranteed Obligations.




     7.9. Authority of Guarantors or the Company. It is not necessary for any Beneficiary to inquire into the capacity or powers of any
Guarantor or the Company or the officers, directors or any agents acting or purporting to act on
behalf of any of them.



     7.10. Financial Condition of the Company. Any Credit Extension may be made to the Company or
continued from time to time, and any Hedge Agreements may be entered into from time to time, in
each case without notice to or authorization from any Guarantor regardless of the financial or
other condition of the Company at the time of any such grant or continuation or at the time such
Hedge Agreement is entered into, as the case may be. No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the
financial condition of the Company. Each Guarantor has adequate means to obtain information from
the Company on a continuing basis concerning the financial condition of the Company and its ability
to perform its material obligations under the Credit Documents and the Hedge Agreements, and each
Guarantor assumes the responsibility for being and keeping informed of the financial condition of
the Company and of all circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations. Each Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary
to disclose any matter, fact or thing relating to the business, operations or conditions of the
Company now known or hereafter known by any Beneficiary.



     7.11. Bankruptcy, etc. (a) So long as any Guaranteed Obligations remain outstanding, no
Guarantor shall, without the prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in commencing any
bankruptcy, reorganization or insolvency case or proceeding of or against the Company or any other
Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited, impaired,
discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of
the Company or any other Guarantor or by any defense which the Company or any other Guarantor may
have by reason of the order, decree or decision of any court or administrative body resulting from
any such proceeding.



          (b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding referred to in clause
(a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been
commenced) shall be included in the Guaranteed Obligations because it is the intention of
Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order which may relieve
the Company of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person
to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such
interest accruing after the date on which such case or proceeding is commenced.





100









 






          (c) In the event that all or any portion of the Guaranteed Obligations are paid by the
Company, the obligations of Guarantors hereunder shall continue and remain in full force and effect
or be reinstated, as the case may be, in the event that all or any part of such payment(s) are
rescinded or recovered directly or indirectly from any Beneficiary as a preference, fraudulent
transfer or otherwise, and any such payments which are so rescinded or recovered shall constitute
Guaranteed Obligations for all purposes hereunder.




     7.12. Discharge of Guaranty Upon Sale of Guarantor. If all of the Capital Stock of any
Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of
(including by merger or consolidation) in accordance with the terms and conditions hereof, the
Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any Beneficiary or any other
Person effective as of the time of such Asset Sale.



SECTION 8. EVENTS OF DEFAULT




     8.1. Events of Default. If any one or more of the following conditions or events shall occur:



          (a) Failure to Make Payments When Due. Failure by the Company to pay (i) when due any
installment of principal of any Loan, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any amount payable to
Issuing Bank in reimbursement of any drawing under a Letter of Credit; or (iii) any interest on any
Loan or any fee or any other amount due hereunder within five days after the date due; or




          (b) Default in Other Agreements. (i) Failure of any Credit Party or any of their
respective Subsidiaries to pay when due any principal of or interest on or any other amount payable
in respect of one or more items of Indebtedness (other than Indebtedness referred to in Section
8.1(a)) in an aggregate principal amount of $4,000,000 or more, in each case beyond the grace
period, if any, provided therefor; or (ii) breach or default by any Credit Party with respect to
any other material term of (1) one or more items of Indebtedness in the individual or aggregate
principal amounts referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or
other agreement relating to such item(s) of Indebtedness, in each case beyond the grace period, if
any, provided therefor, if the effect of such breach or default is to cause, or to permit the
holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders), to
cause, that Indebtedness to become or be declared due and payable (or redeemable) prior to its
stated maturity or the stated maturity of any underlying obligation, as the case may be; or




          (c) Breach of Certain Covenants. Failure of any Credit Party to perform or comply
with any term or condition contained in Section 2.6, Section 5.1(f), Section 5.2 or Section 6
(other than Section 6.3 to the extent that any such failure to perform or comply with Section 6.3
shall have been remedied or waived within ten days after the earlier of (i) an officer of such
Credit Party becoming aware of such default or (ii) receipt by the Company of notice from
Administrative Agent or any Lender of such default); or





101









 








          (d) Breach of Representations, etc. Any representation, warranty, certification or
other statement made or deemed made by any Credit Party in any Credit Document or in any statement
or certificate at any time given by any Credit Party or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false in any material respect as
of the date made or deemed made; or




          (e) Other Defaults Under Credit Documents. Any Credit Party shall default in the
performance of or compliance with any term contained herein or any of the other Credit Documents,
other than any such term referred to in any other Section of this Section 8.1, and such default
shall not have been remedied or waived within thirty days after the earlier of (i) an officer of
such Credit Party becoming aware of such default or (ii) receipt by the Company of notice from
Administrative Agent or any Lender of such default; or




          (f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent
jurisdiction shall enter a decree or order for relief in respect of Holdings or any of its
Subsidiaries in an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not
stayed; or any other similar relief shall be granted under any applicable federal or state law; or
(ii) an involuntary case shall be commenced against Holdings or any of its Subsidiaries under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having
similar powers over Holdings or any of its Subsidiaries, or over all or a substantial part of its
property, shall have been entered; or there shall have occurred the involuntary appointment of an
interim receiver, trustee or other custodian of Holdings or any of its Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or similar process shall
have been issued against any substantial part of the property of Holdings or any of its
Subsidiaries, and any such event described in this clause (ii) shall continue for sixty days
without having been dismissed, bonded or discharged; or




          (g) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Holdings or any of its
Subsidiaries shall have an order for relief entered with respect to it or shall commence a
voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such
law, or shall consent to the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or Holdings or any of its Subsidiaries
shall make any assignment for the benefit of creditors; or (ii) Holdings or any of its Subsidiaries
shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts
as such debts become due; or the board of directors (or similar governing body) of Holdings or any
of its Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize
any action to approve any of the actions referred to herein or in Section 8.1(f); or




          (h) Judgments and Attachments. Any money judgment, writ or warrant of attachment or
similar process involving in the aggregate at any time an amount in excess of $4,000,000 (in
either case to the extent not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or filed

102









 








against Holdings or any of its Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of sixty days (or in any event later
than five days prior to the date of any proposed sale thereunder); or




          (i) Dissolution. Any order, judgment or decree shall be entered against any Credit
Party decreeing the dissolution or split up of such Credit Party and such order shall remain
undischarged or unstayed for a period in excess of thirty days; or




          (j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably be expected to result in liability
of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in excess of
$4,000,000 during the term hereof; or (ii) there exists any fact or circumstance that reasonably
could be expected to result in the imposition of a Lien or security interest under Section 412(n)
of the Internal Revenue Code or under ERISA.




          (k) Change of Control. A Change of Control shall occur; or




          (l) Guaranties, Collateral Documents and other Credit Documents. At any time after
the execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in
full of all Obligations, shall cease to be in full force and effect (other than in accordance with
its terms) or shall be declared to be null and void or any Guarantor shall repudiate its
obligations thereunder in writing, (ii) this Agreement or any Collateral Document ceases to be in
full force and effect (other than by reason of a release of Collateral in accordance with the terms
hereof or thereof or the satisfaction in full of the Obligations in accordance with the terms
hereof) or shall be declared null and void, or Collateral Agent shall not have or shall cease to
have a valid and perfected Lien in any Collateral purported to be covered by the Collateral
Documents with the priority required by the relevant Collateral Document, in each case for any
reason other than the taking of any action by the Collateral Agent or any Secured Party or the
failure of Collateral Agent or any Secured Party to take any action, in each case within its
control, or (iii) any Credit Party shall contest the validity or enforceability of any Credit
Document in writing or deny in writing that it has any further liability, including with respect to
future advances by Lenders, under any Credit Document to which it is a party;




THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g),
automatically, and (2) upon the occurrence of any other Event of Default, at the request of (or
with the consent of) Requisite Lenders, upon notice to the Company by Administrative Agent, (A) the
Revolving Commitments, if any, of each Lender having such Revolving Commitments and the obligation
of Issuing Bank to issue any Letter of Credit shall immediately terminate; (B) each of the
following shall immediately become due and payable, in each case without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly waived by each Credit
Party: (I) the unpaid principal amount of and accrued interest on the Loans, (II) an amount equal
to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding
(regardless of whether any beneficiary under any such Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts or other documents or certificates required
to draw under such Letters of Credit), and (III) all other Obligations; provided, the
foregoing shall not affect in any way the obligations of Lenders under Section 2.3(b)(iv) or
Section 2.4(e); (C) Administrative Agent may cause Collateral Agent to



103









 




enforce any and all Liens and security interests created pursuant to Collateral Documents; and (D)
Administrative Agent shall direct the Company to pay (and the Company hereby agrees upon receipt of
such notice, or upon the occurrence of any Event of Default specified in Sections 8.1(f) and (g) to
pay) to Administrative Agent such additional amounts of cash as reasonable requested by Issuing
Bank, to be held as security for the Company’s reimbursement Obligations in respect of Letters of
Credit then outstanding.




SECTION 9. AGENTS




     9.1. Appointment of Agents. GSCP is hereby appointed Syndication Agent hereunder, and each
Lender hereby authorizes GSCP to act as Syndication Agent in accordance with the terms hereof and
the other Credit Documents. GSCP is hereby appointed Administrative Agent and Collateral Agent
hereunder and under the other Credit Documents and each Lender hereby authorizes GSCP to act as
Administrative Agent and Collateral Agent in accordance with the terms hereof and the other Credit
Documents. JPM and PNC are hereby appointed joint Documentation Agents hereunder, and each Lender
hereby authorizes each of JPM and PNC to act as Documentation Agent in accordance with the terms
hereof and the other Credit Documents. Each Agent hereby agrees to act in its capacity as such
upon the express conditions contained herein and the other Credit Documents, as applicable. The
provisions of this Section 9 are solely for the benefit of Agents and Lenders and no Credit Party
shall have any rights as a third party beneficiary of any of the provisions thereof. In performing
its functions and duties hereunder, each Agent shall act solely as an agent of Lenders and does not
assume and shall not be deemed to have assumed any obligation towards or relationship of agency or
trust with or for Holdings or any of its Subsidiaries. Each of Syndication Agent and Documentation
Agents, without consent of or notice to any party hereto, may assign any and all of its rights or
obligations hereunder to any of its Affiliates. As of the Closing Date, neither GSCP, in its
capacity as Syndication Agent, nor JPM or PNC, each in its capacity as Documentation Agent, shall
have any obligations but shall be entitled to all benefits of this Section 9.



     9.2. Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on
such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other
Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly specified herein and the
other Credit Documents. Each Agent may exercise such powers, rights and remedies and perform such
duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the
other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing herein or
any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as
to impose upon any Agent any obligations in respect hereof or any of the other Credit Documents
except as expressly set forth herein or therein.



     9.3. General Immunity.



          (a) No Responsibility for Certain Matters. No Agent shall be responsible to any
Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or
sufficiency hereof or any other Credit Document or for any representations, warranties, recitals



104









 




or
statements made herein or therein or made in any written or oral statements or in any financial or
other statements, instruments, reports or certificates or any other documents furnished or made by
any Agent to Lenders or by or on behalf of any Credit Party, and Lender or any person providing the
Settlement Service to any Agent or any Lender in connection with the Credit Documents and the
transactions contemplated thereby or for the financial condition or business affairs of any Credit
Party or any other Person liable for the payment of any Obligations, nor shall any Agent be
required to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Credit Documents or as to
the use of the proceeds of the Loans or as to the existence or possible existence of any Event of
Default or Default or to make any disclosures with respect to the foregoing. Anything contained
herein to the contrary notwithstanding, Administrative Agent shall not have any liability arising
from confirmations of the amount of outstanding Loans or the Letter of Credit Usage or the
component amounts thereof.




          (b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors,
employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under
or in connection with any of the Credit Documents except to the extent caused by such Agent’s bad
faith, gross negligence or willful misconduct. Each Agent shall be entitled to refrain from any
act or the taking of any action (including the failure to take an action) in connection herewith or
any of the other Credit Documents or from the exercise of any power, discretion or authority vested
in it hereunder or thereunder unless and until such Agent shall have received instructions in
respect thereof from Requisite Lenders (or such other Lenders as may be required to give such
instructions under Section 10.5) and, upon receipt of such instructions from Requisite Lenders (or
such other Lenders, as the case may be), such Agent shall be entitled to act or (where so
instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance
with such instructions. Without prejudice to the generality of the foregoing, (i) each Agent shall
be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or
document believed by it to be genuine and correct and to have been signed or sent by the proper
Person or Persons, including any Settlement Confirmation or other communication issues by any
Settlement Service, and shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for Holdings and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall have any right of
action whatsoever against any Agent as a result of such Agent acting or (where so instructed)
refraining from acting hereunder or any of the other Credit Documents in accordance with the
instructions of Requisite Lenders (or such other Lenders as may be required to give such
instructions under Section 10.5).




          (c) Delegation of Duties. Administrative Agent may perform any and all of its duties
and exercise its rights and powers under this Agreement or under any other Credit Document by or
through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Affiliates. The exculpatory, indemnification and other provisions of this
Section 9.3 and of Section 9.6 shall apply to any the Affiliates of Administrative Agent and shall
apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities as
Administrative Agent. All of the rights, benefits, and privileges (including the
exculpatory and indemnification provisions) of this Section 9.3 and of Section 9.6 shall apply
to any such sub-agent and to the





105









 







Affiliates of any such sub-agent, and shall apply to their
respective activities as sub-agent as if such sub-agent and Affiliates were named herein.
Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed by the
Administrative Agent, (i) such sub-agent shall be a third party beneficiary under this Agreement
with respect to all such rights, benefits and privileges (including exculpatory rights and rights
to indemnification) and shall have all of the rights and benefits of a third party beneficiary,
including an independent right of action to enforce such rights, benefits and privileges (including
exculpatory rights and rights to indemnification) directly, without the consent or joinder of any
other Person, against any or all of the Credit Parties and the Lenders, (ii) such rights, benefits
and privileges (including exculpatory rights and rights to indemnification) shall not be modified
or amended without the consent of such sub-agent, and (iii) such sub-agent shall only have
obligations to Administrative Agent and not to any Credit Party, Lender or any other Person and no
Credit Party, Lender or any other Person shall have any rights, directly or indirectly, as a third
party beneficiary or otherwise, against such sub-agent.




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



     9.5. Lenders’ Representations, Warranties and Acknowledgment.



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




          (b) Each Lender, by delivering its signature page to this Agreement, an Assignment or a
Joinder Agreement and funding its First Lien Term Loan and/or Revolving Loans on the Closing Date
or by the funding of any New First Lien Loans, as the case may be,
shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit
Document and each other document required to be approved by any Agent, Requisite Lenders or
Lenders, as applicable on the Closing Date or as of the date of funding of such New First Lien
Loans.




106









 








     9.6. Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees
to indemnify each Agent, to the extent that such Agent shall not have been reimbursed by any Credit
Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent
in exercising its powers, rights and remedies or performing its duties hereunder or under the other
Credit Documents or otherwise in its capacity as such Agent in any way relating to or arising out
of this Agreement or the other Credit Documents; provided, no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent’s bad faith, gross negligence or
willful misconduct. If any indemnity furnished to any Agent for any purpose shall, in the opinion
of such Agent, be insufficient or become impaired, such Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional indemnity is
furnished; provided, in no event shall this sentence require any Lender to indemnify any
Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and provided
further, this sentence shall not be deemed to require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement described in the proviso in the immediately preceding sentence.



     9.7. Successor Administrative Agent, Collateral Agent and Swing Line Lender. Administrative
Agent may resign at any time by giving forty-five days’ prior written notice thereof to Lenders,
the Issuing Bank and the Company, and Administrative Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered to the Company and
Administrative Agent and signed by Requisite Lenders. Upon receipt of any such notice of
resignation, the Requisite Lenders shall have the right, in consultation with the Company, to
appoint a successor, which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank with an office in New York, New York. If no such successor shall have been so
appointed by the Requisite Lenders and shall have accepted such appoint appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent meeting the qualifications set forth above provided that if the Administrative
Agent shall notify the Company and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in accordance with such
notice and (i) the retiring Administrative Agent shall be discharged from its duties and
obligations thereunder and under the other Credit Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing Bank
under any of the Credit Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is appointed) and (ii) all
payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to
each Lender and the Issuing Bank directly, until such time as the Requisite Lenders appoint a
successor Administrative Agent as provided for above in this paragraph. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Administrative Agent and the retiring or removed
Administrative Agent shall promptly (i) transfer to such successor Administrative



107









 




Agent all sums,
Securities and other items of Collateral held under the Collateral Documents, together with all
records and other documents necessary or appropriate in connection with the performance of the
duties of the successor Administrative Agent under the Credit Documents, and (ii) execute and
deliver to such successor Administrative Agent such amendments to financing statements, and take
such other actions, as may be necessary or appropriate in connection with the assignment to such
successor Administrative Agent of the security interests created under the Collateral Documents,
whereupon such retiring or removed Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring or removed Administrative Agent’s resignation or removal
hereunder as Administrative Agent, the provisions of this Section 9 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative Agent hereunder. Any
resignation or removal of GSCP or its successor as Administrative Agent pursuant to this Section
shall also constitute the resignation or removal of GSCP or its successor as Collateral Agent, and
any successor Administrative Agent appointed pursuant to this Section shall, upon its acceptance of
such appointment, become the successor Collateral Agent for all purposes hereunder. Any
resignation or removal of GSCP or its successor as Administrative Agent pursuant to this Section
shall also constitute the resignation or removal of GSCP or its successor as Swing Line Lender, and
any successor Administrative Agent appointed pursuant to this Section shall, upon its acceptance of
such appointment, become the successor Swing Line Lender for all purposes hereunder. In such event
(a) the Company shall prepay any outstanding Swing Line Loans made by the retiring or removed
Administrative Agent in its capacity as Swing Line Lender, (b) upon such prepayment, the retiring
or removed Administrative Agent and Swing Line Lender shall surrender any Swing Line Note held by
it to the Company for cancellation, and (c) the Company shall issue, if so requested by successor
Administrative Agent and Swing Line Loan Lender, a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender, in the principal amount of the Swing Line Loan Sublimit
then in effect and with other appropriate insertions.




     9.8. Collateral Documents and Guaranty.



          (a) Agents under Collateral Documents and Guaranty. Each Lender hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Secured Parties, to be the agent for and representative of Lenders with respect to the
Guaranty, the Collateral and the Collateral Documents. Subject to Section 10.5, without further
written consent or authorization from Lenders, Administrative Agent or Collateral Agent, as
applicable may execute any documents or instruments necessary to (i) release any Lien encumbering
any item of Collateral that is the subject of a sale or other disposition of assets permitted
hereby or to which Requisite Lenders (or such other Lenders as may be required to give such consent
under Section 10.5) have otherwise consented or (ii) release any Guarantor from the Guaranty
pursuant to Section 7.12 or with respect to which Requisite Lenders (or such
other Lenders as may be required to give such consent under Section 10.5) have otherwise
consented.




          (b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of
the Credit Documents to the contrary notwithstanding, the Company, Administrative Agent, Collateral
Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize
upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all
powers, rights and remedies hereunder may be exercised solely by

108









 








Administrative Agent, on behalf of
Lenders in accordance with the terms hereof and all powers, rights and remedies under the
Collateral Documents may be exercised solely by Collateral Agent, and (ii) in the event of a
foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale,
Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such
sale and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender
or Lenders in its or their respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Collateral sold at any such public
sale, to use and apply any of the Obligations as a credit on account of the purchase price for any
collateral payable by Collateral Agent at such sale.




     9.9. Intercreditor Agreement. Each Lender hereby consents to and approves each and all of the
provisions of the Intercreditor Agreement, including the purchase rights set forth in Section 5.7
thereof, and irrevocably authorizes and directs the Collateral Agent to execute and deliver the
Intercreditor Agreement and to exercise and enforce its rights and remedies and perform its
obligations thereunder.



     9.10. Withholding Tax. To the extent required by any applicable law, 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 other governmental authority asserts a claim that
Administrative Agent did not properly withhold tax from amounts paid to or for the account of any
Lender because the appropriate form was not delivered or was not properly executed or because such
Lender failed to notify Administrative Agent of a change in circumstance which rendered the
exemption from, or reduction of, withholding tax ineffective or for any other reason, such Lender
shall indemnify Administrative Agent fully for all amounts paid, directly or indirectly, by
Administrative Agent as tax or otherwise, including any penalties or interest and together with all
expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.



SECTION 10. MISCELLANEOUS




     10.1. Notices.



          (a) Notices Generally. Any notice or other communication herein required or permitted
to be given to a Credit Party, Syndication Agent, Collateral Agent, Administrative Agent, Swing
Line Lender, Issuing Bank or Documentation Agents, shall be sent to such Person’s address as set
forth on Appendix B or in the other relevant Credit Document, and in the
case of any Lender, the address as indicated on Appendix B or otherwise indicated to
Administrative Agent in writing. Except as otherwise set forth in paragraph (b) below, each notice
hereunder shall be in writing and may be personally served, telexed or sent by telefacsimile or
United States mail or courier service and shall be deemed to have been given when delivered in
person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile
or telex, or three Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; provided, no notice to any Agent shall be effective until received
by such Agent; provided further, any such notice or other communication



109









 




shall at
the request of the Administrative Agent be provided to any sub-agent appointed pursuant to Section
9.3(c) hereto as designated by the Administrative Agent from time to time.




          (b) Electronic Communications. Notices and other communications to the Lenders and
the Issuing Bank hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or the Issuing Bank
pursuant to Section 2 if such Lender or the Issuing Bank, as applicable, has notified
Administrative Agent that it is incapable of receiving notices under such Section by electronic
communication. Administrative Agent or the Company may, in its discretion, agree to accept notices
and other communications to it hereunder by electronic communications pursuant to procedures
approved by it, provided that approval of such procedures may be limited to particular
notices or communications. Unless Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement), provided that if such notice or
other communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next Business Day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.




     10.2. Expenses. Whether or not the transactions contemplated hereby shall be consummated, the
Company agrees to pay promptly (a) all the actual and reasonable costs and expenses of preparation
of the Credit Documents and any consents, amendments, waivers or other modifications thereto; (b)
all the costs of furnishing all opinions by counsel for the Company and the other Credit Parties;
(c) the reasonable fees, expenses and disbursements of counsel to Agents (excluding allocated costs
of internal counsel) in connection with the negotiation, preparation, execution and administration
of the Credit Documents and any consents, amendments, waivers or other modifications thereto and
any other documents or matters requested by the Company; (d) all the actual costs and reasonable
expenses of creating and perfecting Liens in favor of Collateral Agent, for the benefit of Lenders
pursuant hereto, including filing and recording fees, expenses and taxes, stamp or documentary
taxes, search fees, title insurance premiums and reasonable fees, expenses and disbursements of
counsel to each Agent and of counsel providing any opinions that any Agent or Requisite Lenders may
request in respect of the Collateral or the Liens created pursuant to the Collateral Documents; (e)
all the
actual costs and reasonable fees, expenses and disbursements of any auditors, accountants,
consultants or appraisers; (f) all the actual costs and reasonable expenses (including the
reasonable fees, expenses and disbursements of any appraisers, consultants, advisors and agents
employed or retained by Collateral Agent and its counsel) in connection with the custody or
preservation of any of the Collateral; (g) all other actual and reasonable costs and expenses
incurred by each Agent in connection with the syndication of the Loans and Commitments and the
negotiation, preparation and execution of the Credit Documents and any consents, amendments,
waivers or other modifications thereto and the transactions contemplated thereby; and (h) after the
occurrence of a Default or an Event of Default, all costs and expenses, including



110









 




reasonable
attorneys’ fees (excluding allocated costs of internal counsel) and costs of settlement, incurred
by any Agent and Lenders in enforcing any Obligations of or in collecting any payments due from any
Credit Party hereunder or under the other Credit Documents by reason of such Default or Event of
Default (including in connection with the sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Guaranty) or in connection with any refinancing or
restructuring of the credit arrangements provided hereunder in the nature of a “work-out” or
pursuant to any insolvency or bankruptcy cases or proceedings.




     10.3. Indemnity.



          (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject
to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and Lender and
the officers, partners, directors, trustees, employees, agents, sub-agents and Affiliates of each
Agent and each Lender (each, an “Indemnitee”), from and against any and all Indemnified
Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee
hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities
arise from the bad faith, gross negligence or willful misconduct of that Indemnitee. To the extent
that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3
may be unenforceable in whole or in part because they are violative of any law or public policy,
the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.




          (b) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit
Party hereby waives, any claim against Lenders, Agents and their respective Affiliates, directors,
employees, attorneys, agents or sub-agents, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) (whether or not the
claim therefor is based on contract, tort or duty imposed by any applicable legal requirement)
arising out of, in connection with, arising out of, as a result of, or in any way related to, this
Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or
referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use
of the proceeds thereof or any act or omission or event occurring in connection therewith, and
Holdings and the Company hereby waives, releases and agrees not to sue upon any such claim or any
such damages, whether or not accrued and whether or not known or suspected to exist in its favor.




     10.4. Set-Off. In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence of any Event of Default each
Lender is hereby authorized by each Credit Party at any time or from time to time subject to the
consent of Administrative Agent (such consent not to be unreasonably withheld or delayed), without
notice to any Credit Party or to any other Person (other than Administrative Agent), any such
notice being hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held
or owing by such Lender to or for the credit or the account of any Credit Party against and on
account of the obligations and liabilities of any Credit Party to such Lender hereunder, the



111









 




Letters of Credit and participations therein and under the other Credit Documents, including all
claims of any nature or description arising out of or connected hereto, the Letters of Credit and
participations therein or with any other Credit Document, irrespective of whether or not (a) such
Lender shall have made any demand hereunder or (b) the principal of or the interest on the Loans or
any amounts in respect of the Letters of Credit or any other amounts due hereunder shall have
become due and payable pursuant to Section 2 and although such obligations and liabilities, or any
of them, may be contingent or unmatured.




     10.5. Amendments and Waivers.



          (a) Requisite Lenders’ Consent. Subject to Sections 10.5(b) and 10.5(c), no
amendment, modification, termination or waiver of any provision of the Credit Documents, or consent
to any departure by any Credit Party therefrom, shall in any event be effective without the written
concurrence of the Requisite Lenders.




          (b) Affected Lenders’ Consent. Without the written consent of each Lender (other
than (i) a Defaulting Lender or (ii) any Sponsor Affiliated Lenders) that would be affected
thereby, no amendment, modification, termination, or consent shall be effective if the effect
thereof would:





          (i) extend the scheduled final maturity of any Loan or Note;




          (ii) waive, reduce or postpone any scheduled repayment (but not prepayment);




          (iii) extend the stated expiration date of any Letter of Credit beyond the Revolving
Commitment Termination Date;




          (iv) reduce the rate of interest on any Loan (other than any waiver of any increase in
the interest rate applicable to any Loan pursuant to Section 2.10) or any fee or any premium
payable hereunder;




          (v) extend the time for payment of any such interest or fees;




          (vi) reduce the principal amount of any Loan or any reimbursement obligation in respect
of any Letter of Credit;




          (vii) amend, modify, terminate or waive any provision of this Section 10.5(b) or
Section 10.5(c);




          (viii) amend the definition of “Requisite Lenders” or “Pro Rata Share”;
provided, with the consent of Requisite Lenders, additional extensions of credit
pursuant hereto may be included in the determination of “Requisite Lenders” or “Pro Rata
Share” on substantially the same basis as the First Lien Term Loan Commitments, the First
Lien Term Loans, the Revolving Commitments and the Revolving Loans are included on the
Closing Date;



112









 






          (ix) release (i) all or substantially all of the Collateral; (ii) all or substantially
all of the Guarantors (other than Holdings) from the Guaranty except as expressly provided
in the Credit Documents, or (ii) Holdings from the Guaranty except as otherwise provided in
the Credit Documents;




          (x) permit Interest Periods in excess of six months; or




          (xi) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under any Credit Document.



          (c) Other Consents. No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall:





          (i) increase any Revolving Commitment of any Lender over the amount thereof then in
effect without the consent of such Lender; provided, no amendment, modification or
waiver of any condition precedent, covenant, Default or Event of Default shall constitute an
increase in any Revolving Commitment of any Lender;




          (ii) amend, modify, terminate or waive any provision hereof relating to the Swing Line
Sublimit or the Swing Line Loans without the consent of Swing Line Lender;




          (iii) amend the definition of “Requisite Class Lenders” without the consent of
Requisite Class Lenders of each Class; provided, with the consent of the Requisite
Lenders, additional extensions of credit pursuant hereto may be included in the
determination of such “Requisite Class Lenders” on substantially the same basis as the First
Lien Term Loan Commitments, the First Lien Term Loans, the Revolving Commitments and the
Revolving Loans are included on the Closing Date;




          (iv) alter the required application of any repayments or prepayments as between Classes
pursuant to Section 2.15 without the consent of Requisite Class Lenders of each Class which
is being allocated a lesser repayment or prepayment as a result thereof; provided,
Requisite Lenders may waive, in whole or in part, any prepayment so long as the application,
as between Classes, of any portion of such prepayment which is still required to be made is
not altered;




          (v) amend, modify, terminate or waive any obligation of Lenders relating to the
purchase of participations in Letters of Credit as provided in Section 2.4(e) without the
written consent of Administrative Agent and of Issuing Bank; or




          (vi) amend, modify, terminate or waive any provision of Section 9 as the same applies
to any Agent, or any other provision hereof as the same applies to the rights or obligations
of any Agent, in each case without the consent of such Agent.



          (d) Execution of Amendments, etc. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective only in




113









 







the specific
instance and for the specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.5 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.




          (e) Sponsor Affiliated Lender. Notwithstanding anything to the contrary contained in
this Agreement or any other Credit Document, in no event shall any Sponsor Affiliated Lender be
entitled: (i) to consent to any amendment, modification, waiver, consent or other such action with
respect to any of the terms of this Agreement or any other Credit Document, (ii) to require any
Agent or other Lender to undertake any action (or refrain from taking any action) with respect to
this Agreement or any other Credit Document, (iii) otherwise vote on any matter related to this
Agreement or any other Credit Document, (iv) attend any meeting with any Agent or Lender or receive
any information from any Agent or Lender or (v) make or bring any claim, in its capacity as Lender,
against the Agent with respect to the fiduciary duties of the any Agent or Lender and the other
duties and obligations of the Administrative Agent hereunder; provided, however, no
amendment, modifications or waiver shall deprive any Sponsor Affiliate Lender of its Pro Rata Share
of any payments to which the Lenders are entitled to share on a pro rata basis hereunder.




     10.6. Successors and Assigns; Participations.



          (a) Generally. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the prior written consent
of all Lenders (other than Sponsor Affiliated Lenders). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly contemplated
hereby, Affiliates of each of the Agents and Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.




          (b) Register. The Company, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of
any such Commitment or Loan shall be effective, in each case, unless and until recorded in the
Register following receipt of (x) a written or electronic confirmation of an assignment issued by a
Settlement Service pursuant to Section 10.6(d) (a
“Settlement Confirmation”) or (y) an Assignment
Agreement effecting the assignment or transfer thereof, in each case, as provided in Section
10.6(d). Each assignment shall be recorded in the Register on the Business Day the Settlement
Confirmation or Assignment Agreement is received by the Administrative Agent, if received by 12:00
noon New York City time, and on the following Business Day if received after such time, prompt
notice thereof shall be provided to the Company and a copy of such Assignment Agreement or
Settlement Confirmation shall be maintained, as applicable. The date of such recordation of a
transfer shall be referred to herein as the “Assignment Effective Date.” Any request, authority or
consent of any Person who, at the time of making such request or giving such authority or consent,
is listed in the Register as a Lender shall be conclusive and




114









 







binding on any subsequent holder,
assignee or transferee of the corresponding Commitments or Loans.




          (c) Right to Assign. Each Lender shall have the right at any time to sell, assign or
transfer all or a portion of its rights and obligations under this Agreement, including, without
limitation, all or a portion of its Commitment or Loans owing to it or other Obligations
(provided, however, that each such assignment shall be of a uniform, and not
varying, percentage of all rights and obligations under and in respect of any Loan and any related
Commitments):





          (i) to any Person meeting the criteria of clause (i) of the definition of the term of
“Eligible Assignee” upon the giving of notice to the Company and Administrative Agent; and




          (ii) to any Person meeting the criteria of clause (ii) of the definition of the term of
“Eligible Assignee” upon giving of notice to the Company and Administrative Agent and, in
the case of assignments of Revolving Loans or Revolving Commitments to any such Person
(except in the case of assignments made by or to GSCP), consented to by each of the Company
and Administrative Agent (such consent not to be (x) unreasonably withheld or delayed or,
(y) in the case of the Company, required at any time an Event of Default shall have occurred
and then be continuing); provided, further each such assignment pursuant to this
Section 10.6(c)(ii) shall be in an aggregate amount of not less than (A) $2,500,000 (or such
lesser amount as may be agreed to by the Company and Administrative Agent or as shall
constitute the aggregate amount of the Revolving Commitments and Revolving Loans of the
assigning Lender) with respect to the assignment of the Revolving Commitments and Revolving
Loans and (B) $1,000,000 (or such lesser amount as may be agreed to by the Company and
Administrative Agent or as shall constitute the aggregate amount of the First Lien Term Loan
or New First Lien Term Loans of a Series of the assigning Lender) with respect to the
assignment of Term Loans.



          (d) Mechanics. Assignments of Term Loans by Lenders may be made via an electronic
settlement system acceptable to Administrative Agent as designated in writing from time to time to
the Lenders by Administrative Agent (the “Settlement
Service”). Each such assignment shall be
effected by the assigning Lender and proposed assignee pursuant to the procedures then in effect
under the Settlement Service, which procedures shall be consistent with
the other provisions of this Section 10.6. Each assignor Lender and proposed assignee shall
comply with the requirements of the Settlement Service in connection with effecting any transfer of
Loans pursuant to the Settlement Service. Administrative Agent’s and the Company’s consent shall
be deemed to have been granted pursuant to Section 10.6(c)(ii) with respect to any transfer
effected through the Settlement Service. Subject to the other requirements of this Section 10.6,
assignments and assumptions of Term Loans may also be effected by manual execution delivery to the
Administrative Agent of an Assignment Agreement with the prior written consent of each of the
Company and Administrative Agent (such consent not to be (x) unreasonably withheld or delayed or
(y) in the case of the Company, required at any time an Event of Default shall have occurred and
then be continuing). Initially, assignments and assumptions of Term Loans shall be effected by
such manual execution until Administrative Agent notifies Lenders to the contrary. Assignments and
assumptions of Revolving Loans and Revolving Commitments shall only be





115









 







effected by manual execution
and delivery to the Administrative Agent of an Assignment Agreement. Assignments made pursuant to
the foregoing provision shall be effective as of the Assignment Effective Date. In connection with
all assignments there shall be delivered to Administrative Agent such forms, certificates or other
evidence, if any, with respect to United States federal income tax withholding matters as the
assignee under such Assignment Agreement may be required to deliver pursuant to Section 2.20(c).
Notwithstanding anything herein or in any Assignment Agreement to the contrary and (i) unless
notice to the contrary is delivered to the Lenders from the Administrative Agent or (ii) so long as
no Default or Event of Default has occurred and is continuing, payment to the assignor by the
assignee in respect of the settlement of an assignment of any Term Loan (but not any Revolving Loan
or Revolving Commitment) shall include such compensation to the assignor as may be agreed upon by
the assignor and the assignee with respect to all unpaid interest which has accrued on such Term
Loan to but excluding the Assignment Effective Date. On and after the applicable Assignment
Effective Date, the applicable assignee shall be entitled to receive all interest paid or payable
with respect to the assigned Term Loan, whether such interest accrued before or after the
applicable Assignment Effective Date.




          (e) Representations and Warranties of Assignee. Each Lender, upon execution and
delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be,
represents and warrants as of the Closing Date or as of the Assignment Effective Date that (i) it
is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in
commitments or loans such as the applicable Commitments or Loans, as the case may be; and (iii) it
will make or invest in, as the case may be, its Commitments or Loans for its own account in the
ordinary course of its business and without a view to distribution of such Commitments or Loans
within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it
being understood that, subject to the provisions of this Section 10.6, the disposition of such
Commitments or Loans or any interests therein shall at all times remain within its exclusive
control).




          (f) Effect of Assignment. Subject to the terms and conditions of this Section 10.6,
as of the “Assignment Effective Date” (i) the assignee thereunder shall have the rights and
obligations of a “Lender” hereunder to the extent of its interest in the Loans and Commitments as
reflected in the Register and shall thereafter be a party hereto and a “Lender” for all purposes
hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned to the assignee, relinquish its rights (other than any rights which
survive the termination hereof under Section 10.8) and be released from its obligations
hereunder (and, in the case of an assignment covering all or the remaining portion of an assigning
Lender’s rights and obligations hereunder, such Lender shall cease to be a party hereto on the
Assignment Effective Date; provided, anything contained in any of the Credit Documents to
the contrary notwithstanding, (y) Issuing Bank shall continue to have all rights and obligations
thereof with respect to such Letters of Credit until the cancellation or expiration of such Letters
of Credit and the reimbursement of any amounts drawn thereunder and (z) such assigning Lender shall
continue to be entitled to the benefit of all indemnities hereunder as specified herein with
respect to matters arising out of the prior involvement of such assigning Lender as a Lender
hereunder); (iii) the Commitments shall be modified to reflect any Commitment of such assignee and
any Revolving Commitment of such assigning Lender, if any; and (iv) if any such assignment occurs
after the issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of




116









 







such assignment or as promptly thereafter as practicable, surrender its applicable Notes to
Administrative Agent for cancellation, and thereupon the Company shall issue and deliver new Notes,
if so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning
Lender, with appropriate insertions, to reflect the new Revolving Commitments and/or outstanding
Loans of the assignee and/or the assigning Lender.




          (g) Participations. Each Lender shall have the right at any time to sell one or more
participations to any Person (other than Holdings, any of its Subsidiaries or any of its
Affiliates) in all or any part of its Commitments, Loans or in any other Obligation. The holder of
any such participation, other than an Affiliate of the Lender granting such participation, shall
not be entitled to require such Lender to take or omit to take any action hereunder except with
respect to any amendment, modification or waiver that would (i) extend the final scheduled maturity
of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the
Revolving Commitment Termination Date) in which such participant is participating, or reduce the
rate or extend the time of payment of interest or fees thereon (except in connection with a waiver
of applicability of any post-default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant’s participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Commitment shall not constitute a change in the terms of such participation, and
that an increase in any Commitment or Loan shall be permitted without the consent of any
participant if the participant’s participation is not increased as a result thereof), (ii) consent
to the assignment or transfer by any Credit Party of any of its rights and obligations under this
Agreement or (iii) release all or substantially all of the Collateral under the Collateral
Documents (except as expressly provided in the Credit Documents) supporting the Loans hereunder in
which such participant is participating. The Company agrees that each participant shall be
entitled to the benefits of Sections 2.18(c), 2.19 and 2.20 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (c) of this Section;
provided, (i) a participant shall not be entitled to receive any greater payment under
Section 2.19 or 2.20 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 Company’s prior written consent and (ii) a participant that would be a
Non-US Lender if it were a Lender shall not be entitled to the benefits of Section 2.20 unless the
Company is notified of the participation sold to such participant and such participant agrees, for
the benefit of the Company, to comply with Section 2.20 as though it were a Lender. To the extent
permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as
though it were a Lender, provided such Participant agrees to be subject to Section 2.17 as
though it were a Lender.




          (i) Certain Other Assignments. In addition to any other assignment permitted pursuant
to this Section 10.6, any Lender may assign and/or pledge all or any portion of its Loans, the
other Obligations owed by or to such Lender, and its Notes, if any, to secure obligations of such
Lender including, without limitation, to any Federal Reserve Bank as collateral security pursuant
to Regulation A of the Board of Governors and any operating circular issued by such Federal Reserve
Bank; provided, no Lender, as between the Company and such Lender, shall be relieved of any
of its obligations hereunder as a result of any such assignment and pledge, and provided
further, in no event shall the applicable Federal Reserve Bank, pledgee




117









 







or trustee be
considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take
any action hereunder.




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



     10.8. Survival of Representations, Warranties and Agreements. All representations, warranties
and agreements made herein shall survive the execution and delivery hereof and the making of any
Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2, 10.3 and 10.4 and
the agreements of Lenders set forth in Sections 2.17, 9.3(b) and 9.6 shall survive the payment of
the Loans, the cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination hereof.



     10.9. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any other Credit
Document shall impair such power, right or privilege or be construed to be a waiver of any default
or acquiescence therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power, right or privilege.
The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall
be in addition to and independent of all rights, powers and remedies existing by virtue of any
statute or rule of law or in any of the other Credit Documents or any of the Hedge Agreements. Any
forbearance or failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof,
nor shall it preclude the further exercise of any such right, power or remedy.



     10.10. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Credit Party or any other Person or against or in
payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or
payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or
any Agent or Lenders enforce any security interests or exercise their rights of setoff, and such
payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, any other state or federal law, common law or
any equitable cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor or related
thereto, shall be revived and continued in full force and effect as if such payment or payments had
not been made or such enforcement or setoff had not occurred.



     10.11. Severability. In case any provision in or obligation hereunder or under any other
Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.



118









 





     10.12. Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders
hereunder are several and no Lender shall be responsible for the obligations or Commitment of any
other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for
any other Lender to be joined as an additional party in any proceeding for such purpose.



     10.13. Headings. Section headings herein are included herein for convenience of reference
only and shall not constitute a part hereof for any other purpose or be given any substantive
effect.



     10.14. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.



     10.15. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY
ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF
NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS
ADDRESS
PROVIDED IN ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND (E) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER
JURISDICTION.



     10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY
OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
LOAN



119









 




TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE
TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.




     10.17. Confidentiality. Each Lender shall hold all non-public information regarding the Company
and its Subsidiaries and their businesses identified as such by the Company and obtained by such
Lender pursuant to the requirements hereof in accordance with such Lender’s customary procedures
for handling confidential information of such nature, it being understood and agreed by the
Company that, in any event, a Lender may make (i) disclosures of such information to Affiliates of
such Lender and to their agents and advisors (and to other persons authorized by a Lender or Agent
to organize, present or disseminate such information in connection with disclosures otherwise made
in accordance with this Section 10.17), (ii) disclosures of such information reasonably required
by any bona fide or prospective assignee, transferee or participant in connection with the
contemplated assignment, transfer or participation by such Lender of any Loans or any
participations therein or by any direct or indirect contractual counterparties (or the professional
advisors thereto) in Hedge Agreements (provided, such counterparties and advisors are advised of
and agree to be bound by the provisions of this Section 10.17), (iii) disclosure to any rating
agency when required by it, provided that, prior to any disclosure, such rating agency
shall undertake in writing to preserve the confidentiality of any confidential information relating
to the Credit Parties received by it from any of the Agents or any Lender, and (iv) disclosures
required or requested by any governmental agency or representative thereof or by the NAIC or
pursuant to legal or judicial process; provided, unless specifically prohibited by
applicable law or court order, each Lender shall make reasonable efforts to notify the Company of
any request by any governmental agency or representative thereof (other than any such request in
connection with any examination of the financial condition or other routine examination of such
Lender by such governmental agency) for disclosure of any such non-public information prior to
disclosure of such information.



120









 




Notwithstanding anything to the contrary set forth herein, each
party (and each of their respective employees, representatives or other agents) may disclose to any
and all persons, without limitations of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions and
other tax analyses) that are provided to any such party relating to such tax treatment and tax
structure. However, any information relating to the tax treatment or tax structure shall remain
subject to the confidentiality provisions hereof (and the foregoing sentence shall not apply) to
the extent reasonably necessary to enable the parties hereto, their respective Affiliates, and
their and their respective Affiliates’ directors and employees to comply with applicable securities
laws. For this purpose, “tax structure” means any facts relevant to the federal income tax
treatment of the transactions contemplated by this Agreement but does not include information
relating to the identity of any of the parties hereto or any of their respective Affiliates.




     10.18. Judgment Currency. (a) If, for the purposes of obtaining judgment in any court,
it is necessary to convert a sum due hereunder in any currency (the “Original Currency”) into
another currency (the “Other Currency”), the parties hereto agree, to the fullest extent permitted
by law, that the rate of exchange used shall be that at which in accordance with normal banking
procedures Administrative Agent or a Lender could purchase the Original Currency with such Other
Currency in New York, New York on the Business Day immediately preceding the day on which any such
judgment, or any relevant part thereof, is given.



          (b) The obligations of the Company in respect of any sum due from it to any Agent or Lender
hereunder shall, notwithstanding any judgment in such Other Currency, be discharged only to the
extent that on the Business Day following receipt by such Agent or Lender of any sum adjudged to be
so due in such Other Currency such Agent or Lender may in accordance with normal banking procedures
purchase the Original Currency with such Other Currency; if the Original Currency so purchased is
less than the sum originally due such Agent or Lender in the Original Currency, the Company agrees,
as a separate obligation and notwithstanding any such judgment, to indemnify such Agent or Lender
against such loss, and if the Original Currency so purchased exceeds the sum originally due to such
Agent or Lender in the Original Currency, such Agent or Lender shall remit such excess to the
Company.




     10.19. Usury Savings Clause. Notwithstanding any other provision herein, the aggregate
interest rate charged with respect to any of the Obligations, including all charges or fees in
connection therewith deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence)
under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the
Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all times been in effect. In addition,
if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into
account the increase provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement had at all times
been in effect, then to the extent permitted by law, the Company shall pay to Administrative Agent
an amount equal to the difference between the amount of interest paid and the amount of interest
which would have been paid if the Highest Lawful Rate had at all times been in effect.
Notwithstanding the foregoing, it is the intention of Lenders and the



121









 




Company to conform strictly
to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any
consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess
shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied
to the outstanding amount of the Loans made hereunder or be refunded to the Company.




     10.20. Counterparts. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.



     10.21. Effectiveness. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by the Company and Administrative
Agent of written or telephonic notification of such execution and authorization of delivery
thereof.



     10.22. Patriot Act. Each Lender and Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies the Company that pursuant to the requirements of the Act, it is required to
obtain, verify and record information that identifies the Company, which information includes the
name and address of the Company and other information that will allow such Lender or Administrative
Agent, as applicable, to identify the Company in accordance with the Act.



     10.23. Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment Agreement shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.



[Remainder of page intentionally left blank]




122









 





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



	 	 	 	 	 
	 	DAY INTERNATIONAL GROUP, INC.

 	 
	 	By:  	/s/ Thomas J. Koenig
 	 
	 	 	Name:  	Thomas J. Koenig 	 
	 	 	Title:  	Vice President and CFO 	 
	 



	 	 	 	 	 
	 	DAY INTERNATIONAL, INC.

 	 
	 	By:  	/s/ Thomas J. Koenig
 	 
	 	 	Name:  	Thomas J. Koenig 	 
	 	 	Title:  	Vice President and CFO 	 
	 



	 	 	 	 	 
	 	VARN INTERNATIONAL, INC.

 	 
	 	By:  	/s/ Thomas J. Koenig
 	 
	 	 	Name:  	Thomas J. Koenig 	 
	 	 	Title:  	Vice President and CFO 	 
	 



	 	 	 	 	 
	 	DAY INTERNATIONAL FINANCE, INC.

 	 
	 	By:  	/s/ Thomas J. Koenig
 	 
	 	 	Name:  	Thomas J. Koenig 	 
	 	 	Title:  	Vice President and CFO 	 
	 



	 	 	 	 	 
	 	NETWORK DISTRIBUTION INTERNATIONAL

 	 
	 	By:  	/s/ Thomas J. Koenig
 	 
	 	 	  	 




[FIRST LIEN CREDIT AND
GUARANTEE AGREEMENT]









 





	 	 	 	 	 
	 	 	Name:  	 Thomas J. Koenig	 
	 	 	Title:	 Vice President and CFO 	 
	 



	 	 	 	 	 
	 	NETWORK DISTRIBUTION 

INTERNATIONAL, INC.

 	 
	 	By:  	/s/ Thomas J. Koenig
 	 
	 	 	Name:  	Thomas J. Koenig 	 
	 	 	Title:  	Vice President and CFO 	 



[FIRST LIEN CREDIT AND
GUARANTEE AGREEMENT]










 






	 	 	 	 	 



	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Sole Lead Arranger, Sole Syndication Agent,

Administrative Agent, Collateral Agent and a Lender

 	 
	 	By:  	/s/ William W. Archer
 	 
	 	 	Authorized Signatory 	 



	 	 	 	 	 
	 	JPMORAN CHASE BANK, N.A.,

as Issuing Bank, Swing Line Lender, Joint

Documentation Agent and a Lender

 	 
	 	By:  	/s/ Joey D. Williams
 	 
	 	 	Name:  	Joey D. Williams 	 
	 	 	Title:  	SVP 	 



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION,

as Joint Documentation Agent and a Lender

 	 
	 	By:  	/s/ William R. Flax
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[FIRST LIEN CREDIT AND GUARANTEE AGREEMENT]