Exhibit
10.11




 







$30,000,000


Form of REVOLVING
CREDIT AGREEMENT


among


B&G FOODS, INC.,

as Borrower


The Several Lenders

from Time to Time Parties Hereto,


LEHMAN BROTHERS INC.,

as Arranger


THE BANK OF NEW YORK,

as Documentation Agent


 


FLEET NATIONAL BANK,

a Bank of America company,

as Syndication Agent


And


LEHMAN COMMERCIAL PAPER
INC.,

as Administrative Agent


Dated as of October [__],
2004


 


 




 











 


TABLE OF CONTENTS


 


	
   

  
	
  SECTION
  1.   DEFINITIONS

  
	
   

  	
  1.1

  	
  Defined
  Terms

  
	
   

  	
  1.2

  	
     Other
  Definitional Provisions

  
	
   

  
	
  SECTION
  2.   AMOUNT AND TERMS OF COMMITMENTS; LETTERS OF CREDIT

  
	
   

  	
  2.1

  	
  Revolving
  Credit Commitments; Swing Line Commitment

  
	
   

  	
  2.2

  	
  Procedure
  for Borrowing; Swing Line Loans; Refunding of Swing Line Loans

  
	
   

  	
  2.3

  	
  Repayment of
  Loans; Evidence of Debt

  
	
   

  	
  2.4

  	
  Commitment
  Fees, etc

  
	
   

  	
  2.5

  	
  Termination
  or Reduction of Revolving Credit Commitments

  
	
   

  	
  2.6

  	
  Optional Prepayments

  
	
   

  	
  2.7

  	
  Conversion and
  Continuation Options

  
	
   

  	
  2.8

  	
  Minimum
  Amounts and Maximum Number of Eurodollar Tranches

  
	
   

  	
  2.9

  	
  Interest Rates and
  Payment Dates

  
	
   

  	
  2.10

  	
  Computation of
  Interest and Fees

  
	
   

  	
  2.11

  	
  Inability to
  Determine Interest Rate

  
	
   

  	
  2.12

  	
  Pro Rata Treatment and
  Payments

  
	
   

  	
  2.13

  	
  Requirements
  of Law

  
	
   

  	
  2.14

  	
  Taxes

  
	
   

  	
  2.15

  	
  Indemnity

  
	
   

  	
  2.16

  	
  Illegality

  
	
   

  	
  2.17

  	
  Change of Lending Office

  
	
   

  	
  2.18

  	
  Substitution of Lenders

  
	
   

  	
  2.19

  	
  L/C
  Commitment

  
	
   

  	
  2.20

  	
  Procedure
  for Issuance of Letter of Credit

  
	
   

  	
  2.21

  	
  Fees and Other Charges

  
	
   

  	
  2.22

  	
  L/C
  Participations

  
	
   

  	
  2.23

  	
  Reimbursement
  Obligation of the Borrower

  
	
   

  	
  2.24

  	
  Obligations Absolute

  
	
   

  	
  2.25

  	
  Letter of Credit Payments

  
	
   

  	
  2.26

  	
  Applications

  
	
   

  
	
  SECTION
  3.   REPRESENTATIONS AND WARRANTIES

  
	
   

  	
  3.1

  	
     Financial Condition

  
	
   

  	
  3.2

  	
     No
  Change

  



 


i

















 


	
   

  	
   

  	
   

  
	
   

  	
  3.3

  	
  Corporate
  Existence; Compliance with Law

  
	
   

  	
  3.4

  	
  Corporate
  Power; Authorization; Enforceable Obligations

  
	
   

  	
  3.5

  	
  No Legal
  Bar

  
	
   

  	
  3.6

  	
  No Material Litigation

  
	
   

  	
  3.7

  	
  No Default

  
	
   

  	
  3.8

  	
  Ownership of Property;
  Liens

  
	
   

  	
  3.9

  	
  Intellectual Property

  
	
   

  	
  3.10

  	
  Taxes

  
	
   

  	
  3.11

  	
  Federal Regulations

  
	
   

  	
  3.12

  	
  Labor
  Matters

  
	
   

  	
  3.13

  	
  ERISA

  
	
   

  	
  3.14

  	
  Investment
  Company Act; Other Regulations

  
	
   

  	
  3.15

  	
  Subsidiaries

  
	
   

  	
  3.16

  	
  Use
  of Proceeds

  
	
   

  	
  3.17

  	
  Environmental Matters

  
	
   

  	
  3.18

  	
  Accuracy of Information, etc

  
	
   

  	
  3.19

  	
  Security
  Documents

  
	
   

  	
  3.20

  	
  Solvency

  
	
   

  	
  3.21

  	
  Senior Indebtedness

  
	
   

  
	
  SECTION
  4.   CONDITIONS PRECEDENT

  
	
   

  	
  4.1

  	
  Conditions to Initial Extension
  of Credit

  
	
   

  	
  4.2

  	
  Conditions to Each
  Extension of Credit

  
	
   

  
	
  SECTION
  5.   AFFIRMATIVE COVENANTS

  
	
   

  	
  5.1

  	
  Financial Statements

  
	
   

  	
  5.2

  	
  Certificates; Other
  Information

  
	
   

  	
  5.3

  	
  Payment of Obligations

  
	
   

  	
  5.4

  	
  Conduct of Business and
  Maintenance of Existence, etc

  
	
   

  	
  5.5

  	
  Maintenance of
  Property; Insurance

  
	
   

  	
  5.6

  	
  Inspection
  of Property; Books and Records; Discussions

  
	
   

  	
  5.7

  	
  Notices

  
	
   

  	
  5.8

  	
  Environmental
  Laws

  
	
   

  	
  5.9

  	
  Additional
  Collateral, etc

  
	
   

  	
  5.10

  	
  Further Assurances

  
	
   

  
	
  SECTION
  6.   NEGATIVE COVENANTS

  
	
   

  	
  6.1

  	
  Financial Condition
  Covenants

  
	
   

  	
  6.2

  	
  Limitation on Indebtedness

  
	
   

  	
  6.3

  	
  Limitation on Liens

  



 


ii

















 


	
   

  	
   

  	
   

  
	
   

  	
  6.4

  	
  Limitation on
  Fundamental Changes

  
	
   

  	
  6.5

  	
  Limitation on
  Disposition of Property

  
	
   

  	
  6.6

  	
  Limitation on
  Restricted Payments

  
	
   

  	
  6.7

  	
  Limitation on
  Capital Expenditures

  
	
   

  	
  6.8

  	
  Limitation on Investments

  
	
   

  	
  6.9

  	
  Limitation
  on Optional Payments and Modifications of Debt Instruments, etc

  
	
   

  	
  6.10

  	
  Limitation
  on Transactions with Affiliates

  
	
   

  	
  6.11

  	
  Limitation on Sales
  and Leasebacks

  
	
   

  	
  6.12

  	
  Limitation on
  Changes in Fiscal Periods

  
	
   

  	
  6.13

  	
  Limitation on
  Negative Pledge Clauses

  
	
   

  	
  6.14

  	
  Limitation
  on Restrictions on Subsidiary Distributions

  
	
   

  	
  6.15

  	
  Limitation on Lines of
  Business

  
	
   

  
	
  SECTION
  7.   EVENTS OF DEFAULT

  
	
   

  
	
  SECTION
  8.   THE ADMINISTRATIVE AGENT; THE ARRANGER; THE OTHER AGENTS

  
	
   

  	
  8.1

  	
    
  Appointment

  
	
   

  	
  8.2

  	
     Delegation of Duties

  
	
   

  	
  8.3

  	
     Exculpatory
  Provisions

  
	
   

  	
  8.4

  	
     Reliance
  by Administrative Agent

  
	
   

  	
  8.5

  	
    
  Notice of Default

  
	
   

  	
  8.6

  	
    
  Non-Reliance on Administrative Agent and Other Lenders

  
	
   

  	
  8.7

  	
    
  Indemnification

  
	
   

  	
  8.8

  	
    
  Administrative Agent in Its Individual Capacity

  
	
   

  	
  8.9

  	
     Successor
  Administrative Agent

  
	
   

  	
  8.10

  	
    
  Authorization to Release Liens; Other Actions Relating to Security Documents

  
	
   

  	
  8.11

  	
     The
  Arranger; the Other Agents

  
	
   

  
	
  SECTION
  9.   MISCELLANEOUS

  
	
   

  	
  9.1

  	
     Amendments and
  Waivers

  
	
   

  	
  9.2

  	
     Notices

  
	
   

  	
  9.3

  	
     No Waiver;
  Cumulative Remedies

  
	
   

  	
  9.4

  	
    
  Survival of Representations and Warranties

  
	
   

  	
  9.5

  	
    
  Payment of Expenses

  
	
   

  	
  9.6

  	
    
  Successors and Assigns; Participations and Assignments

  
	
   

  	
  9.7

  	
    
  Adjustments; Set-off

  
	
   

  	
  9.8

  	
    
  Counterparts

  
	
   

  	
  9.9

  	
    
  Severability

  



 


iii

















 


	
   

  	
   

  	
   

  
	
   

  	
  9.10

  	
    
  Integration

  
	
   

  	
  9.11

  	
    
  GOVERNING LAW

  
	
   

  	
  9.12

  	
     Submission To
  Jurisdiction; Waivers

  
	
   

  	
  9.13

  	
    
  Acknowledgments

  
	
   

  	
  9.14

  	
    
  Confidentiality

  
	
   

  	
  9.15

  	
    
  Release of Collateral Security and Guarantee Obligations

  
	
   

  	
  9.16

  	
     Accounting Changes

  
	
   

  	
  9.17

  	
     Delivery of
  Lender Addenda

  
	
   

  	
  9.18

  	
    
  WAIVERS OF JURY TRIAL

  



 








 


	
  ANNEXES:

  
	
  A

  	
   

  	
  Pricing Grid

  
	
  B

  	
   

  	
  Existing Letters of Credit

  



 


	
  SCHEDULES:

  	
   

  	
   

  
	
  3.4

  	
   

  	
  Consents,
  Authorizations, Filings and Notices

  
	
  3.9

  	
   

  	
  Intellectual
  Property Claims

  
	
  3.15

  	
   

  	
  Subsidiaries

  
	
  3.19(a)-1

  	
   

  	
  UCC
  Filing Jurisdictions

  
	
  3.19(a)-2

  	
   

  	
  UCC
  Financing Statements to Remain on File

  
	
  6.2(d)

  	
   

  	
  Existing
  Indebtedness

  
	
  6.3(f)

  	
   

  	
  Existing
  Liens

  
	
  6.10

  	
   

  	
  Transactions
  with Affiliates

  
	
   

  	
   

  	
   

  



 


	
  EXHIBITS:

  	
   

  	
   

  
	
  A

  	
   

  	
  Form of Guarantee and Collateral Agreement

  
	
  B

  	
   

  	
  Form of Compliance Certificate

  
	
  C

  	
   

  	
  Form of Closing Certificate

  
	
  E

  	
   

  	
  Form of Assignment and Acceptance

  
	
  F

  	
   

  	
  Form of Legal Opinion of Dechert LLP

  
	
  G-1

  	
   

  	
  Form of Revolving Credit Note

  
	
  G-2

  	
   

  	
  Form of Swing Line Note

  
	
  H

  	
   

  	
  Form of Exemption Certificate

  
	
  I

  	
   

  	
  Form of Lender Addendum

  



 


v

















 


REVOLVING CREDIT AGREEMENT,
dated as of October [__], 2004, among B&G FOODS, INC., a Delaware
corporation (the “Borrower”), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the “Lenders”),
LEHMAN BROTHERS INC., as sole advisor, sole lead arranger and sole bookrunner
(in such capacity, the “Arranger”), THE BANK OF NEW YORK, as
Documentation Agent, (in such capacity, the “Documentation Agent”),
FLEET NATIONAL BANK, a Bank of America company, as Syndication Agent (in such capacity,
the “Syndication Agent”) and LEHMAN COMMERCIAL PAPER INC., as
Administrative Agent (in such capacity, the “Administrative Agent”).


W I T N
E S S E T H:


WHEREAS, the Borrower has
requested that the Lenders make a revolving credit facility available to the
Borrower for general corporate purposes of the Borrower and its Subsidiaries
(as defined below) in the ordinary course of business; and


WHEREAS, the Lenders are
willing to make such revolving credit facility available upon and subject to
the terms and conditions herein set forth;


NOW, THEREFORE, in
consideration of the above premises and the agreements hereinafter set forth,
the parties hereto hereby agree as follows:


SECTION 1.  DEFINITIONS


1.1  
Defined Terms. 
As used in this Agreement, the terms listed in this Section 1.1 shall
have the respective meanings set forth in this Section 1.1.


“Acquired Property”:
as defined in the definition of Consolidated EBITDA.


“Adjustment Date”:  as defined in the Pricing Grid.


“Administrative Agent”:  as defined in the preamble hereto.


“Affiliate”:  as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person.  For purposes
of this definition, “control” of a Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having ordinary
voting power for the election of directors (or persons performing similar
functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.


“Agents”:  the collective reference to the
Administrative Agent, the Other Agents and, for purposes of Section 8, each
Issuing Lender.


“Aggregate Exposure”:  with respect to any Lender at any time, an amount
equal to the amount of such Lender’s Revolving Credit Commitment then in effect
or, if the Revolving Credit Commitments have been terminated, the amount of
such Lender’s Revolving Extensions of Credit then outstanding.


 


1

















 


“Aggregate Exposure
Percentage”:  with respect to any
Lender at any time, the ratio (expressed as a percentage) of such Lender’s
Aggregate Exposure at such time to the sum of the Aggregate Exposures of all
Lenders at such time.


“Agreement”:  this Revolving Credit Agreement, as amended,
supplemented or otherwise modified from time to time.


“Applicable Margin”:  2.00% in the case of Base Rate Loans and
3.00% in the case of Eurodollar Loans, provided that after the first Adjustment
Date occurring after the completion of two fiscal quarters of the Borrower
after the Closing Date, the Applicable Margin will be determined pursuant to
the Pricing Grid.


“Application”:  an application, in such form as the
applicable Issuing Lender may specify from time to time, requesting such
Issuing Lender to open a Letter of Credit.


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


“Arranger”:  as defined in the preamble hereto.


“Assignee”:  as defined in Section 9.6(c).


“Assignment and
Acceptance”:  each Assignment and
Acceptance, substantially in the form of Exhibit E, executed and delivered
pursuant to Section 9.6.


“Assignor”:  as defined in Section 9.6(c).


“Attributable Debt”:  in respect of a sale and leaseback
transaction, at the time of determination, the present value of the obligation
of the lessee for net rental payments during the remaining term of the lease
included in such sale and leaseback transaction including any period for which
such lease has been extended or may, at the option of the lessor, be extended.  Such present value shall be calculated using
a discount rate equal to the rate of interest implicit in such transaction,
determined in accordance with GAAP; provided, however, that if
such sale and leaseback transaction results in a Capital Lease Obligation, the
amount of Attributable Debt represented thereby will be determined in
accordance with the definition of “Capital Lease Obligations.”


“Available Revolving
Credit Commitment”:  as to any
Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s
Revolving Credit Commitment then in effect over (b) such Lender’s
Revolving Extensions of Credit then outstanding; provided, that in
calculating any Lender’s Revolving Extensions of Credit for the purpose of
determining such Lender’s Available Revolving Credit Commitment pursuant to
Section 2.4(a), the aggregate principal amount of Swing Line Loans then
outstanding shall be deemed to be zero.


 


 


2

















 


“Base Rate”:  for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1⁄2 of 1%.  For
purposes hereof:  “Prime Rate”
shall mean the prime lending rate as set forth on the British Banking
Association Telerate Page 5 (or such other comparable page as may, in the
opinion of the Administrative Agent, replace such page for the purpose of
displaying such rate), as in effect from time to time.  Any change in the Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime Rate
or the Federal Funds Effective Rate, respectively.


“Base Rate Loans”:  Loans for which the applicable rate of
interest is based upon the Base Rate.


“Benefited Lender”:  as defined in Section 9.7.


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


“Borrower”:  as defined in the preamble hereto.


“Borrowing Date”:  any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lenders to make Loans
hereunder.


“Business Day”:  (i) for all purposes other than as covered
by clause (ii) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close
and (ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, 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 interbank eurodollar market.


“Capital Expenditures”:  for any period, with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) which should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.


“Capital Lease
Obligations”:  as to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.


“Capital Stock”:  any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation (including corporate stock


 


3

















 


represented
by the EIS and corporate stock outstanding upon the separation of the EIS into
the securities represented thereby), any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or
options to purchase any of the foregoing, but excluding any debt securities
convertible into, or exchangeable for, any of the foregoing.


“Cash Equivalents”:  (a) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b) certificates
of deposit, time deposits, eurodollar time deposits or overnight bank deposits
having maturities of six months or less from the date of acquisition issued by
any Lender or by any commercial bank organized under the laws of the United
States of America or any state thereof having combined capital and surplus of
not less than $500,000,000; (c) commercial paper of an issuer rated at least
A-2 by S&P or P-2 by Moody’s, or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least
A by S&P or A by Moody’s; (f) securities with maturities of six months or
less from the date of acquisition backed by standby letters of credit issued by
any Lender or any commercial bank satisfying the requirements of clause (b) of
this definition; and (g) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a) through
(f) of this definition.


“Closing Date”: the
date on which the conditions precedent set forth in Section 4.1 shall have been
satisfied or waived.


“Code”:  the Internal Revenue Code of 1986, as
amended from time to time.


“Collateral”:  all Property of the Loan Parties, now owned
or hereafter acquired, upon which a Lien is purported to be created by any
Security Document.


“Commitment Fee Rate”:  1⁄2 of 1% per annum.


“Commonly Controlled
Entity”:  an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group that includes the
Borrower and that is treated as a single employer under Section 414 of the
Code.


 


4

















 


“Compliance Certificate”:  a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit B.


“Conduit Financing
Arrangement”:  as defined in Section
2.14(d).


“Conduit Lender”:  as defined in Section 2.14(d).


“Consolidated Cash Flow”:  with respect to any specified Person for any
period, the Consolidated Net Income of such Person for such period plus,
without duplication, the sum of (a) an amount equal to any extraordinary loss
plus any net loss realized by such Person or any of its Subsidiaries in
connection with an asset sale, to the extent such losses were deducted in
computing such Consolidated Net Income, (b) provision for taxes based on income
or profits of such Person and its Subsidiaries for such period, to the extent
that such provision for taxes was deducted in computing such Consolidated Net
Income, (c) the Consolidated Fixed Charges of such Person and its Subsidiaries
for such period, to the extent that such Consolidated Fixed Charges were
deducted in computing such Consolidated Net Income, (d) depreciation, amortization
(including amortization of goodwill and other intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period and
including, without limitation, any Mark-to Market Adjustment) and other
non-cash expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such
Person and its Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income, (e) if such period includes the
quarter ended September 27, 2003, $2,200,000, (f) fees and expenses related to
issuance of the Senior Notes, the EIS, the Senior Subordinated Notes and the
other transactions contemplated herein not to exceed $12,000,000 in the
aggregate actually incurred within three months of the Closing Date, (g)
charges incurred within 180 days of the Closing Date attributable to write-off
of bond discount and the write-off of deferred financing fees and costs,
relating to the pay-off of existing Indebtedness in an amount not to exceed
$18,200,000 and minus non-cash items increasing such Consolidated Net
Income for such period (including, without limitation, any Mark-to Market
Adjustment), other than the accrual of revenue in the ordinary course of
business, in each case, on a consolidated basis and determined in accordance
with GAAP.


“Consolidated EBITDA”:  of any Person for any period, Consolidated
Net Income of such Person and its Subsidiaries for such period plus,
without duplication and to the extent reflected as a charge in the statement of
such Consolidated Net Income for such period, the sum of (a) income tax
expense, (b) Consolidated Interest Expense of such Person and its Subsidiaries,
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness,
(c) depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring expenses or losses (including, whether
or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, losses on sales of assets outside of
the ordinary course of business), (f) any other


 


5

















 


non-cash
charges, (g) if such period includes the quarter ended September 27, 2003,
$2,200,000, (h) fees and expenses related to issuance of the Senior Notes, the
EIS, the Senior Subordinated Notes and the other transactions contemplated
herein not to exceed $12,000,000 in the aggregate actually incurred within
three months of the Closing Date, and (i) charges incurred within 180 days of
the Closing Date attributable to the write-off of bond discount and the
write-off of deferred financing fees and costs, relating to the pay-off of
existing Indebtedness in an amount not to exceed $18,200,000, and minus,
to the extent included in the statement of such Consolidated Net Income for
such period, the sum of (a) interest income (except to the extent deducted in
determining Consolidated Interest Expense), (b) any extraordinary, unusual or
non-recurring income or gains (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of business),
and (c) any other non-cash income, all as determined on a consolidated basis; provided,
that for purposes of calculating Consolidated EBITDA of the Borrower and its
Subsidiaries for any period, (i) the Consolidated EBITDA of any Person or
assets constituting a division or a line of business (such person or assets an
“Acquired Property”) acquired by the Borrower or its Subsidiaries during
such period shall be included on a pro  forma basis for such
period (assuming the consummation of such acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the first
day of such period) if the balance sheet of such Acquired Property as at the
end of the period preceding the acquisition of such Acquired Property and the
related consolidated statements of income and stockholders’ equity and of cash
flows for the period in respect of which Consolidated EBITDA is to be
calculated (x) have been previously provided to the Administrative Agent
and the Lenders and (y) either (1) have been reported on without a
qualification arising out of the scope of the audit by independent certified
public accountants of nationally recognized standing or (2) have been
found acceptable by the Administrative Agent, (ii) the Consolidated EBITDA of
any assets Disposed of by the Borrower or its Subsidiaries during such period
shall be excluded for such period (assuming the consummation of such
Disposition and the repayment of any Indebtedness in connection therewith
occurred on the first day of such period) and (iii) in calculating the amount
of the Consolidated EBITDA of any Acquired Property to be included on a pro
forma basis pursuant to the foregoing clause (i) of this proviso,
the pro forma expenses of the Acquired Property for the relevant period
shall be determined in accordance with the Borrower’s customary practices and
consistent with the methodology used for acquisitions consummated in the fiscal
year prior to the Closing Date.


“Consolidated Fixed
Charge Coverage Ratio”:  with
respect to any specified Person for any period, the ratio of the Consolidated
Cash Flow of such Person for such period to the Consolidated Fixed Charges of
such Person for such period.  In the
event that the specified Person or any of its Subsidiaries incurs, assumes,
guarantees, repays, repurchases, redeems, defeases or otherwise discharges any
Indebtedness (other than ordinary working capital borrowings) or issues,
repurchases or redeems preferred stock subsequent to the commencement of the
period for which the Consolidated Fixed Charge Coverage Ratio is being
calculated and on or prior to the date on which the event for which the
calculation of the Consolidated Fixed Charge Coverage Ratio is made, then the
Consolidated Fixed Charge Coverage Ratio will be calculated giving pro forma
effect to


 


6

















 


such
incurrence, assumption, guarantee, repayment, repurchase, redemption,
defeasance or other discharge of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom, as if the
same had occurred at the beginning of the applicable four-quarter reference
period.  In addition, for purposes of
calculating the Consolidated Fixed Charge Coverage Ratio (a) acquisitions that
have been made by the specified Person or any of its Subsidiaries, including
through mergers or consolidations, or any Person or any of its Subsidiaries
acquired by the specified Person or any of its Subsidiaries, and including any
related financing transactions and including increases in ownership of
Subsidiaries, during the four-quarter reference period or subsequent to such
reference period and on or prior to the calculation date will be given pro
forma effect as if they had occurred on the first day of the four-quarter
reference period, and Consolidated Cash Flow for such reference period will be
calculated on a pro forma basis in accordance with Regulation S-X under the
Securities Act of 1933, as amended, (b) the Consolidated Cash Flow attributable
to discontinued operations, as determined in accordance with GAAP, and
operations or businesses (and ownership interests therein) disposed of prior to
the calculation date, will be excluded, (c) the Consolidated Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses (and ownership interests therein) disposed of
prior to the calculation date, will be excluded, but only to the extent that
the obligations giving rise to such Consolidated Fixed Charges will not be
obligations of the specified Person or any of its Subsidiaries following the
calculation date, (d) any Person that is a Subsidiary on the calculation date
will be deemed to have been a Subsidiary at all times during such four-quarter
period, (e) any Person that is not a Subsidiary on the calculation date will be
deemed not to have been a Subsidiary at any time during such four-quarter
period and (f) if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness will be calculated as if the rate in
effect on the calculation date had been the applicable rate for the entire
period (taking into account any Hedging Obligation applicable to such
Indebtedness if such Hedging Obligation has a remaining term as at the calculation
date in excess of twelve months).


“Consolidated Fixed
Charges”:  with respect to any
specified Person for any period, the sum, without duplication, of (a) the
consolidated interest expense of such Person and its Subsidiaries for such
period, whether paid or accrued, including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers’ acceptance
financings, and net of the effect of all payments made or received pursuant to
Hedging Obligations in respect of interest rates, plus (b) the
consolidated interest expense of such Person and its Subsidiaries that was
capitalized during such period, plus (c) any interest on Indebtedness of
another Person that is guaranteed by such Person or one of its Subsidiaries or
secured by a Lien on assets of such Person or one of its Subsidiaries, whether
or not such guarantee or Lien is called upon, plus (d) the product of
(1) all dividends, whether paid or accrued and whether or not in cash, on any
series of preferred stock of such Person or any of its Subsidiaries, other than
dividends on Capital Stock payable solely in Capital Stock of the Borrower
(other than Disqualified Stock) or to the Borrower or a Subsidiary of the


 


7

















 


Borrower,
times (2) a fraction, the numerator of which is one and the denominator
of which is one minus the then current combined federal, state and local
statutory tax rate of such Person, expressed as a decimal, in each case,
determined on a consolidated basis in accordance with GAAP, minus
(e) charges attributable to the amortization of expenses relating to the
issuance of the Senior Notes, the EIS, the Senior Subordinated Notes and the
other transactions contemplated herein, incurred within 180 days of the Closing
Date, minus (f) charges incurred within 180 days of the Closing
Date attributable to the write-off of bond discount and the write-off of
deferred financing fees and costs relating to the pay-off of existing
Indebtedness in an amount not to exceed $18,200,000.


“Consolidated Interest
Coverage Ratio”:  for any period,
the ratio of (a) Consolidated EBITDA of the Borrower and its Subsidiaries
for such period to (b) Consolidated Interest Expense of the Borrower and
its Subsidiaries for such period payable in cash.


“Consolidated Interest
Expense”:  of any Person for any
period, (a) total interest expense (including that attributable to Capital
Lease Obligations) of such Person and its Subsidiaries for such period with
respect to all outstanding Indebtedness of such Person and its Subsidiaries
(including, without limitation, all commissions, discounts and other fees and
charges owed by such Person with respect to letters of credit and bankers’
acceptance financing and net costs of such Person under Hedge Agreements in
respect of interest rates to the extent such net costs are allocable to such
period in accordance with GAAP, but excluding any deferred financing costs
relating to the incurrence of any Indebtedness) minus (b) the total interest
income of such Person for such period, determined in accordance with GAAP; provided
that (i) when the term “Consolidated Interest Expense” is used in the
calculation of the Consolidated Interest Coverage Ratio for any period, Consolidated
Interest Expense shall include, on a pro  forma basis, interest
expense in respect of any Indebtedness incurred in connection with any
acquisition of an Acquired Property during such period (assuming incurrence of
such Indebtedness at the beginning of such period) and shall exclude, on a pro
forma basis, interest expense in respect of any Indebtedness repaid in
connection with a Disposition during such period (assuming repayment of such
Indebtedness at the beginning of such period) and (ii) (a) consolidated interest expense for the four quarter period
ending December 31, 2004 shall equal consolidated interest expense for the
fiscal quarter ending December 31, 2004 multiplied by 4, (b)
consolidated interest expense for the four quarter period ending March 31, 2005
shall equal the sum of consolidated interest expense for the fiscal quarters
ending December 31, 2004 and March 31, 2005 multiplied by 2 and
(c) consolidated interest expense for the four quarter period ending June
30, 2005 shall equal the sum of consolidated interest expense for the fiscal
quarters ending December 31, 2004, March 31, 2005 and June 30, 2005 multiplied
by 4/3.  Consolidated Interest Expense shall be deemed to include [all]
distributions paid to holders of EIS with respect to the Senior Subordinated
Notes, whether or not such payment is characterized as interest under GAAP.


“Consolidated Leverage
Ratio”:  as at the last day of any
period of four consecutive fiscal quarters, the ratio of (a) Consolidated Total
Debt on such day to (b) Consolidated EBITDA of the Borrower and its
Subsidiaries for such period.


 


8

















 


“Consolidated Net Income”:  of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided,
that in calculating Consolidated Net Income of the Borrower and its
consolidated Subsidiaries for any period, there shall be excluded (a) the
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any of its
Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary) in which the Borrower or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the
Borrower or such Subsidiary in the form of dividends or similar distributions
and (c) the undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law applicable to such
Subsidiary.


“Consolidated Senior Debt”:  all Consolidated Total Debt other than the
Senior Subordinated Notes.


“Consolidated Senior
Leverage Ratio”:  as of the last day
of any period of four consecutive fiscal quarters, the ratio of (a)
Consolidated Senior Debt on such day to (b) Consolidated EBITDA of the
Borrower and its Subsidiaries for such period.


“Consolidated Total Debt”:  at any date, the aggregate principal amount
of all Funded Debt of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.


“Continuing Directors”:  the directors of the Borrower on the Closing
Date, after giving effect to the transactions contemplated hereby, and each
other director of the Borrower, if, in each case, such other director’s
nomination for election to the board of directors of the Borrower is
recommended by at least 50% of the then Continuing Directors.


“Contractual Obligation”:  as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other undertaking
to which such Person is a party or by which it or any of its Property is bound.


“Control Investment
Affiliate”:  as to any Person, any
other Person that (a) directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person and (b) is organized by such
Person primarily for the purpose of making equity or debt investments in one or
more companies.  For purposes of this
definition, “control” of a Person means the power, directly or indirectly, to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.


“Default”:  any of the events specified in
Section 7, whether or not any requirement for the giving of notice, the
lapse of time, or both, has been satisfied.


“Derivatives Counterparty”:  as defined in Section 6.6.


 


9

















 


“Disposition”:  with respect to any Property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof; and the terms “Dispose” and “Disposed of”
shall have correlative meanings.


“Disqualified Stock”:  any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of such Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of such Capital Stock, in whole or in part, on or prior to the
date that is 91 days after the date on which the Senior Notes mature.  Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders of such Capital Stock have the right to require the Borrower to
repurchase such Capital Stock upon the occurrence of a change of control or an
asset sale will not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Borrower may not repurchase or redeem any such Capital Stock
pursuant to such provisions unless such repurchase or redemption is permitted
under Section 6.6.


“Documentation Agent”:  as defined in the preamble hereto.


“Dollars” and “$”:  lawful currency of the United States of
America.


“Domestic Subsidiary”:  any Subsidiary of the Borrower organized
under the laws of any jurisdiction within the United States of America.


“EIS”: enhanced
income securities which are the units of the Borrower comprised of Senior
Subordinated Notes and common stock, to be issued by the Borrower on the
Closing Date or thereafter pursuant to the terms of the Securities Holders
Agreement.


“EIS Documentation”:
the Securities Holders Agreement, the Senior Subordinated Note Indenture and
all other instruments, agreements and other documentation entered into by the
Borrower or its Subsidiaries in connection with the issuance of the EIS, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof.


“Environmental Laws”:  any and all laws, rules, orders,
regulations, statutes, ordinances, enforceable guidelines, codes, decrees, or
other legally enforceable requirements (including, without limitation, common
law) of any international authority, foreign government, the United States, or
any state, local, municipal or other governmental authority, regulating,
relating to or imposing liability or standards of conduct concerning  protection of the environment or of human
health, or employee health and safety, as has been, is now, or may at any time hereafter
be, in effect.


“Environmental Permits”:  any and all permits, licenses,
approvals,  registrations,
notifications, exemptions and other authorizations required under any
Environmental Law.


 


10

















 


“ERISA”:  the Employee Retirement Income Security Act
of 1974, as amended from time to time.


“Eurocurrency Reserve
Requirements”:  for any day, the
aggregate (without duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.


“Eurodollar Base Rate”:  with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing
on Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period.  In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the “Eurodollar Base Rate”
for purposes of this definition shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be
selected by the Administrative Agent.


“Eurodollar Loans”:  Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.


“Eurodollar Rate”:  with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum determined
for such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):


	
   

  	
  Eurodollar
  Base Rate

  	
   

  
	
   

  	
  1.00—
  Eurocurrency Reserve Requirements

  	
   

  
	
   

  	
   

  	
   

  



“Eurodollar Tranche”:  the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Eurodollar Loans
shall originally have been made on the same day).


“Event of Default”:  any of the events specified in Section 7, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.


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


“Excluded Foreign
Subsidiaries”:  any Foreign
Subsidiary in respect of which the pledge of all of the Capital Stock of such
Subsidiary as Collateral would, in the good faith judgment of the Borrower,
result in adverse tax consequences to the Borrower.


“Existing Credit
Agreement”:  the Amended and
Restated Revolving Credit Agreement, dated as of August 21, 2003, among B&G
Foods Holdings Corp., B&G


 


11

















 


Foods,
Inc., the several banks and other financial institutions or entities from time
to time parties thereto, Lehman Brothers Inc., as sole advisor, sole lead
arranger and sole bookrunner, Lehman Commercial Paper Inc., as administrative
agent, each of The Bank of New York and CIT Lending Services Corporation, as
co-documentation agent, and Fleet National Bank, as syndication agent.


“Existing Issuing Lender”:  The Bank of New York, as issuer of the
Existing Letters of Credit.


“Existing Letters of
Credit”: the letters of credit described in Annex B.


“Fair Market Value”:
the value that would be paid by a willing buyer to an unaffiliated willing
seller in a transaction not involving distress or necessity of either party,
determined in good faith by the board of directors of the Borrower.


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


“Foreign Subsidiary”:  any Subsidiary of the Borrower that is not a
Domestic Subsidiary.


“Funded Debt”:  as to any Person, all Indebtedness of such
Person of the types described in clauses (a) through (e) of the definition of
“Indebtedness” in this Section.


“Funding Office”:  the office specified from time to time by
the Administrative Agent as its funding office by notice to the Borrower and
the Lenders.


“GAAP”:  generally accepted accounting principles in
the United States of America as in effect from time to time, except that for
purposes of Section 6.1, GAAP shall be determined on the basis of such
principles in effect on the date hereof and consistent with those used in the
preparation of the most recent audited financial statements referred to in
Section 3.1(b).


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


“Guarantee and Collateral
Agreement”:  the Guarantee and
Collateral Agreement to be executed and delivered by the Borrower and each
Subsidiary Guarantor, substantially in the form of Exhibit A, as the same may
be amended, supplemented or otherwise modified from time to time.


 


12

















 


“Guarantee Obligation”:  as to any Person (the “guaranteeing
person”), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of credit), if
to induce the creation of such obligation of such other Person the guaranteeing
person has issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the “primary obligations”) of any other
third Person (the “primary obligor”) in any manner, whether directly or
indirectly, including, without limitation, any obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary obligation
or any Property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase Property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business.  The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing person’s maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.


“Guarantors”:  the collective reference to the Subsidiary
Guarantors.


“Hedge Agreements”:  with respect to any Person or its
Subsidiaries, all interest rate or currency swaps, caps or collar agreements or
similar arrangements entered into by such Person or its Subsidiaries providing
for protection against fluctuations in interest rates or currency exchange
rates or the exchange of nominal interest obligations, either generally or
under specific contingencies.


“Hedging Obligations”:  with respect to any specified Person, the
obligations of such Person under Hedge Agreements.


“Indebtedness”:  of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of Property or
services (other than an accrued expense, trade payables or any similar
obligation to trade creditors incurred in the ordinary course of such Person’s
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to Property acquired by such Person (even though the rights and
remedies of the seller or lender under such


 


13

















 


agreement
in the event of default are limited to repossession or sale of such Property),
(e) all Capital Lease Obligations of such Person, (f) all obligations of
such Person, contingent or otherwise, as an account party or applicant under
acceptance, letter of credit or similar facilities, (g) all obligations of such
Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Capital Stock of such Person (other than pursuant to
clause (k) of this definition), (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through (g) above;
(i) all obligations of the kind referred to in clauses (a) through (h) above
secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on Property (including,
without limitation, accounts and contract rights) owned by such Person, whether
or not such Person has assumed or become liable for the payment of such
obligation (provided that, if such Person has not assumed or become
liable for the payment of such obligation, the amount of Indebtedness
constituted by such obligation shall be deemed to be the lesser of (i) the
stated amount thereof or (ii) the Fair Market Value of the Property
encumbered by such Lien), (j) for the purposes of Section 7(e) only, all
Hedging Obligations of such Person and (k) the liquidation value of any
preferred Capital Stock of such Person or its Subsidiaries held by any Person
other than such Person and its Wholly Owned Subsidiaries if such preferred
Capital Stock is mandatorily redeemable prior to the date which is 91 days
after the Revolving Credit Termination Date.


“Indemnified Liabilities”:  as defined in Section 9.5.


“Indemnitee”:  as defined in Section 9.5.


“Insolvency”:  with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.


“Insolvent”:  pertaining to a condition of Insolvency.


“Intellectual Property”:  the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all
rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.


“Interest Payment Date”:  (a) as to any Base Rate Loan, the last day
of each March, June, September and December to occur while such Base Rate Loan
is outstanding and the final maturity date of such Base Rate Loan, (b) as to
any Eurodollar Loan having an Interest Period of three months or less, the last
day of such Interest Period, (c) as to any Eurodollar Loan having an Interest
Period longer than three months, each day which is three months, or a whole
multiple thereof, after the first day of such Interest Period and the last day
of such Interest Period and (d) as to any Eurodollar Loan, the date of any
repayment or prepayment made in respect thereof.


 


14

















 


“Interest Period”:  as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that,
all of the foregoing provisions relating to Interest Periods are subject to the
following:


(i)  
if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;


(ii)  
any Interest Period that would otherwise extend beyond the Revolving Credit
Termination Date shall end on the Revolving Credit Termination Date;


(iii)  
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 end on the last
Business Day of a calendar month; and


(iv)  
the Borrower shall select Interest Periods so as not to require a payment or
prepayment of any Eurodollar Loan during an Interest Period for such Eurodollar
Loan.


“Investments”:  as defined in Section 6.8.


“Issuing Lender”:  the Existing Issuing Lender and any other
Lender selected by the Borrower, with the consent of such Lender and the
Administrative Agent, to act as Issuing Lender, in its capacity as issuer of
any Letter of Credit.


“L/C Commitment”:  $10,000,000.


“L/C Fee Payment Date”:  the last day of each March, June, September
and December and the last day of the Revolving Credit Commitment Period.


“L/C Obligations”:  at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 2.23.


“L/C Participants”:  the collective reference to all the Lenders
other than the relevant Issuing Lender.


 


15

















 


“Lender Addendum”:  with respect to any initial Lender, a Lender
Addendum, substantially in the form of Exhibit I, to be executed and delivered
by such Lender on the Closing Date as provided in Section 9.17.


“Lenders”:  as defined in the preamble hereto.


“Letters of Credit”:  as defined in Section 2.19(a).


“Lien”:  any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge
or other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement and any capital lease having substantially the same economic effect
as any of the foregoing).


“Loan”:  any loan made by any Lender pursuant to this
Agreement.


“Loan Documents”:  this Agreement, the Applications, the
Security Documents and the Notes.


“Loan Parties”:  the Borrower and each Subsidiary of the
Borrower which is a party to a Loan Document.


“Mark-to-Market
Adjustment”:  any non-cash expense
or income resulting from current or future mark-to-market accounting that the
Borrower may apply with respect to any EIS, shares of the Borrower’s Class A
common stock, shares of Borrower’s Class B common stock or the Borrower’s
Senior Subordinated Notes issued in connection with the original issuance of
EIS on the Closing Date or at any time thereafter.


“Material Adverse Effect”:  a material adverse effect on (a) the
business, assets, property or financial condition of the Borrower and its
Subsidiaries taken as a whole or (b) the validity or enforceability of
this Agreement or any of the other Loan Documents or the rights or remedies of
the Administrative Agent or the Lenders hereunder or thereunder.


“Material Environmental
Amount”:  an amount or amounts
payable by the Borrower and/or any of its Subsidiaries, in the aggregate in
excess of $2,000,000 in respect of any one occurrence, for:  costs to comply with any Environmental Law;
costs of any investigation, and any remediation, of any Material of Environmental
Concern; and compensatory damages (including, without limitation damages to
natural resources), punitive damages, fines, and penalties pursuant to any
Environmental Law.


“Materials of
Environmental Concern”:  any
gasoline or petroleum (including crude oil or any fraction thereof) or
petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation,
asbestos, pollutants, contaminants, radioactivity, and any other substances or
forces of any kind, whether or not any such substance or force is defined as
hazardous or toxic under any Environmental Law, that is regulated pursuant to
or could reasonably be expected to give rise to liability under any
Environmental Law.


 


16

















 


“Moody’s”:  Moody’s Investors Service, Inc.


“Multiemployer Plan”:  a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.


“New Lenders”:  as defined in Section 9.1.


“New Revolving Credit
Commitments”:  as defined in Section
9.1.


“New Revolving Credit
Loans”:  as defined in Section 9.1.


“Non-Excluded Taxes”:  as defined in Section 2.14(a).


“Non-U.S. Lender”:  as defined in Section 2.14(d).


“Notes”:  the collective reference to each promissory
note, if any, evidencing Loans.


“Obligations”:  the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of the
Loans and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations and
liabilities of the Borrower to the Administrative Agent or to any Lender or any
Qualified Counterparty, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, any other Loan Document, the
Letters of Credit, any Specified Hedge Agreement or any other document made,
delivered or given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto) or otherwise; provided, that (i)
obligations of the Borrower or any Subsidiary under any Specified Hedge
Agreement shall be secured and guaranteed pursuant to the Security Documents
only to the extent that, and for so long as, the other Obligations are so
secured and guaranteed and (ii) any release of Collateral or Guarantors or any
waiver or modification of any other provision in the Loan Documents regarding
the Collateral effected in the manner permitted by this Agreement shall not
require the consent of holders of obligations under Specified Hedge Agreements.


“Old B&G Foods, Inc.”:  B&G Foods, Inc., a Delaware corporation,
existing immediately prior to the closing hereunder.


“Other Agents”:  the collective reference to the
Documentation Agent and the Syndication Agent.


 


17

















 


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


“Participant”:  as defined in Section 9.6(b).


“Payment Office”:  the office specified from time to time by
the Administrative Agent as its payment office by notice to the Borrower and
the Lenders.


“PBGC”:  the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any successor).


“Permitted Acquisition”:  any acquisition by the Borrower or any of
its Subsidiaries of all of the Capital Stock of, or all or substantially all of
the assets constituting a business unit of, any other Person so long as, with
respect to any such acquisition, the following conditions are satisfied:


(a)  
no Default or Event of Default shall have occurred and be continuing or would
result from such acquisition;


(b)  
the Borrower shall be in compliance with the financial covenants set forth in
Section 6.1, after giving pro  forma effect to such acquisition as
if it had occurred on the first day of the respective periods measured by such
covenants;


(c)  
such acquisition shall be consistent with the Borrower’s stated management
strategy as in effect on the Closing Date, and the target of such acquisition
shall be in the same or a similar line of business as the Borrower and its
Subsidiaries;


(d)  
unless such acquisition is consummated solely with the proceeds of Capital
Stock of the Borrower or in exchange for such Capital Stock, the aggregate
consideration for such acquisition shall not exceed $50,000,000; provided,
that the foregoing restriction in this paragraph (d) shall not be applicable to
any acquisition if the Consolidated Leverage Ratio would be less than or equal
to 5.50 to 1.0 after giving pro forma effect to such acquisition as if
it had occurred on the first day of the period measured by the Consolidated
Leverage Ratio;


(e)   the target
of such acquisition either (i) shall have had positive consolidated net income
before interest, taxes, depreciation and amortization, determined in accordance
with GAAP (“EBITDA”) for the period of four consecutive fiscal quarters
of such target most recently ended prior to the date of such acquisition, or
(ii) shall have had positive pro  forma EBITDA for such period
(such pro  forma EBITDA to be determined in accordance with the
Borrower’s customary practices consistent with the methodology used for
acquisitions consummated in the fiscal year prior to the Closing Date);


 


18

















 


(f)  
the Borrower shall have performed reasonable and customary due diligence with
respect to such acquisition and the target thereof, including with respect to
environmental matters;


(g)  
the Borrower and/or the applicable Subsidiary shall have obtained all material
third party consents and approvals required in connection with such
acquisition;


(h)  
environmental audits, if any, pro forma financial statements, appraisals, if
any, accounting reviews and material business due diligence reports conducted
by the Borrower with respect to the business to be acquired shall have been
delivered to Administrative Agent not less than ten Business Days prior to
consummation of such acquisition;


(i)  
the Borrower shall have reasonably determined that it has adequate liquidity
available for working capital; and


(j)  
substantially all of the assets so acquired are located in the United States or
Canada or, if such acquisition is structured as a purchase of stock, the Person
so acquired is organized under the laws of a state of the United States, and
substantially all of the assets owned by such Person are located in the United
States or Canada; provided, that (i) the Borrower may acquire the stock
of a Person organized under the laws of a state of the United States whose
assets are located, in whole or in part, in Puerto Rico or Canada, if such
Person becomes a Subsidiary Guarantor and grants a security interest in its
assets as contemplated by Section 5.9 and (ii) the Borrower may acquire the
stock of any Person organized under the laws of Puerto Rico or Canada, so long
as the aggregate amount of Investments made pursuant to this clause (ii),
together with Investments made as permitted by Section 6.8(m), does not exceed
$10,000,000.


“Person”:  an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.


“Plan”:  at a particular time, any employee pension
benefit plan within the meaning of Section 3(2) of ERISA and in respect of
which the Borrower or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an
“employer” as defined in Section 3(5) of ERISA.


“Pricing Grid”:  the Pricing Grid attached as Annex A.


“Principals”: the
members of management of the Borrower or any of its Subsidiaries as of the
Closing Date.


“Pro Forma Balance Sheet”:  as defined in Section 3.1(a).


“Projections”:  as defined in Section 5.2(c).


 


19

















 


“Property”:  any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.


“Qualified Counterparty”:  with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such Specified Hedge
Agreement was entered into, was a Lender or an affiliate of a Lender.


“Recovery Event”:  any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Borrower or any of its Subsidiaries.


“Refunded Swing Line
Loans”:  as defined in Section 2.2.


“Refunding Date”:  as defined in Section 2.2.


“Register”:  as defined in Section 9.6(d).


“Regulation H”:  Regulation H of the Board as in effect from
time to time.


“Regulation U”:  Regulation U of the Board as in effect from
time to time.


“Reimbursement Obligation”:  the obligation of the Borrower to reimburse
the relevant Issuing Lender pursuant to Section 2.23 for amounts drawn under
Letters of Credit.


“Related Parties”:
any (a) controlling stockholder, 662⁄3% (or more) owned Subsidiary, or
immediate family member (in the case of an individual) of any Principal, or (b)
any trust, corporation, partnership, limited liability company or other entity,
the beneficiaries, stockholders, partners, members, owners or Persons
beneficially holding 662⁄3% or more controlling interest of which consist
of any one or more Principals and/or such other Persons referred to in the
immediately preceding clause (a).


“Reorganization”:  with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.


“Reportable Event”:  any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. § 4043.


“Required Lenders”:  at any time, the holders of more than 50% of
the Total Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.


“Requirement of Law”:  as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other 


20

















 


Governmental
Authority, in each case applicable to or binding upon such Person or any of its
Property or to which such Person or any of its Property is subject.


“Responsible Officer”:  the chief executive officer, president or
chief financial officer of the Borrower, but in any event, with respect to
financial matters, the chief financial officer of the Borrower.


“Restricted Payments”:  as defined in Section 6.6.


“Revolving Credit
Commitment”:  as to any Lender, the
obligation of such Lender to make or participate in Loans and issue or
participate in Letters of Credit, in an aggregate principal and/or face amount
not to exceed the amount set forth under the heading “Revolving Credit
Commitment” opposite such Lender’s name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof.  The original amount of the Total Revolving
Credit Commitments is $30,000,000.


“Revolving Credit
Commitment Period”:  the period from
and including the Closing Date to the Revolving Credit Termination Date.


“Revolving Credit Loans”:  as defined in Section 2.1.


“Revolving Credit
Percentage”:  as to any Lender at
any time, the percentage which such Lender’s Revolving Credit Commitment then
constitutes of the Total Revolving Credit Commitments (or, at any time after
the Revolving Credit Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender’s Revolving
Credit Loans then outstanding constitutes of the aggregate principal amount of
the Revolving Credit Loans then outstanding).


“Revolving Credit
Termination Date”:  October [__],
2009.


“Revolving Extensions of
Credit”:  as to any Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of all
Revolving Credit Loans made by such Lender then outstanding, (b) such Lender’s
Revolving Credit Percentage of the L/C Obligations then outstanding and (c)
such Lender’s Revolving Credit Percentage of the aggregate principal amount of
Swing Line Loans then outstanding.


“S&P”:  Standard & Poor’s Ratings Services.


“SEC”:  the Securities and Exchange Commission (or
successors thereto or an analogous Governmental Authority).


“Security Documents”:  the collective reference to the Guarantee
and Collateral Agreement and all other security documents hereafter delivered
to the Administrative Agent granting a Lien on any Property of any Person to
secure the obligations and liabilities of any Loan Party under any Loan
Document.


21

















 


“Securities Holders
Agreement”:  the Second Amended and
Restated Securities Holders Agreement, dated as of [________], 2004, among the
Sponsor, certain of the Borrower’s existing stockholders, certain members of
the Borrower’s board of directors and the Borrower’s executive officers, as in
effect on the Closing Date.


“Senior Note Indenture”:  the Indenture, dated as of October [___],
2004 entered into by the Borrower and certain of its Subsidiaries and The Bank
of New York, as Trustee, in connection with the issuance of the Senior Notes,
together with all instruments and other agreements entered into by the Borrower
or such Subsidiaries in connection therewith, as the same may be amended,
supplemented or otherwise modified from time to time.


“Senior Notes”:  the senior notes of the Borrower issued from
time to time pursuant to the Senior Note Indenture.


“Senior Subordinated Note
Indenture”:  the Indenture, dated as
of October [__], 2004, entered into by the Borrower and certain of its
Subsidiaries and The Bank of New York, as Trustee, in connection with the
issuance of the Senior Subordinated Notes, together with all instruments and
other agreements entered into by the Borrower or such Subsidiaries in
connection therewith, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with Section 6.9.


“Senior Subordinated
Notes”: the senior subordinated notes of the Borrower issued from time to
time pursuant to the Senior Subordinated Note Indenture.


“Single Employer Plan”:  any Plan that is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.


“Solvent”:  when used with respect to any Person, that,
as of any date of determination, (a) the amount of the “present fair saleable
value” of the assets of such Person will, as of such date, exceed the amount of
all “liabilities of such Person, contingent or otherwise”, as of such date, as
such quoted terms are determined in accordance with applicable federal and
state laws governing determinations of the insolvency of debtors, (b) the
present fair saleable value of the assets of such Person will, as of such date,
be greater than the amount that will be required to pay the liability of such
Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (d) such Person will be able to pay its
debts as they mature.  For purposes of
this definition, (i) “debt” means liability on a “claim”, and (ii) “claim”
means any (x) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed,
secured or unsecured.


22

















 


“Specified Change of
Control”:  the occurrence of (a) the
direct or indirect sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the properties or assets of the
Borrower and its Subsidiaries taken as a whole to any “person” (as that term is
used in Section 13(d)(3) the Exchange Act other than a Principal or a Related
Party of a Principal, (b) the adoption of a plan relating to the liquidation or
dissolution of the Borrower, (c) the consummation of any transaction
(including, without limitation, any merger or consolidation), the result of
which is that any “person” (as defined above), other than the Principals and
their Related Parties, becomes the “beneficial owner” (as defined in Rules
13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more
than 50% of the Voting Stock of the Borrower, measured by voting power rather
than number of shares, or (d) the first day on which a majority of the members
of the Board of Directors of the Borrower are not Continuing Directors.


“Specified Hedge
Agreement”:  any Hedge Agreement
entered into by the Borrower or any of its Subsidiaries and any Qualified
Counterparty.


“Sponsor”:  Bruckmann, Rosser, Sherill & Co., L.P.


“Subsidiary”:  as to any Person, a corporation,
partnership, limited liability company or other entity of which shares of stock
or other ownership interests having ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all references
to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Borrower.


“Subsidiary Guarantor”:  each Subsidiary of the Borrower other than
any Foreign Subsidiary.


“Swing Line Commitment”:  the obligation of the Swing Line Lender to
make Swing Line Loans pursuant to Section 2.2 in an aggregate principal amount
at any one time outstanding not to exceed $5,000,000.


“Swing Line Lender”:  Lehman Commercial Paper Inc., in its
capacity as the lender of Swing Line Loans.


“Swing Line Loans”:  as defined in Section 2.1(b).


“Swing Line Participation
Amount”:  as defined in Section 2.2.


“Syndication Agent”:  as defined in the preamble hereto.


“Total Revolving Credit
Commitments”:  at any time, the
aggregate amount of the Revolving Credit Commitments of the Lenders then in
effect.


 


23

















 


 


“Total Revolving
Extensions of Credit”:  at any time,
the aggregate amount of the Revolving Extensions of Credit of the Lenders
outstanding at such time.


“Transactions Services
Agreement”: the amended and restated Transaction Services Agreement, dated
as of [____________], 2004 between Bruckmann, Rosser, Sherrill & Co. Inc.
and the Borrower, as in effect on the Closing Date.


“Transferee”:  as defined in Section 9.14.


“Type”:  as to any Loan, its nature as a Base Rate
Loan or a Eurodollar Loan.


“Wholly Owned Subsidiary”:  as to any Person, any other Person all of
the Capital Stock of which (other than directors’ qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.


“Wholly Owned Subsidiary
Guarantor”:  any Subsidiary
Guarantor that is a Wholly Owned Subsidiary of the Borrower.


1.2  
Other Definitional Provisions.  (a)  Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.


(b)   As used
herein and in the other Loan Documents, and any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in Section 1.1 and accounting terms
partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.


(c)   The words
“hereof”, “herein” and “hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section, Schedule and Exhibit
references are to this Agreement unless otherwise specified.


(d)   The meanings
given to terms defined herein shall be equally applicable to both the singular
and plural forms of such terms.


SECTION 2.  AMOUNT AND TERMS OF
COMMITMENTS; LETTERS OF CREDIT


2.1   Revolving Credit Commitments; Swing
Line Commitment. 
(a)    Subject to the terms and conditions hereof,
each Lender severally agrees to make revolving credit loans (“Revolving
Credit Loans”) to the Borrower from time to time during the Revolving
Credit Commitment Period in an aggregate principal amount at any one time
outstanding which, when added to such Lender’s Revolving Credit Percentage of
the L/C Obligations and Swing Line Loans then outstanding, does not exceed the
amount of such Lender’s Revolving Credit Commitment.  During the Revolving Credit Commitment Period the Borrower may
use the Revolving Credit Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof.  The
Revolving Credit Loans may from time to time be Eurodollar Loans or Base Rate
Loans, as


 


24

















 


determined by the
Borrower and notified to the Administrative Agent in accordance with Sections
2.2 and 2.7, provided that no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Revolving Credit
Termination Date.


(b)   Subject to
the terms and conditions hereof, the Swing Line Lender agrees to make available
a portion of the credit otherwise available to the Borrower under the Revolving
Credit Commitments from time to time during the Revolving Credit Commitment
Period by making swing line loans (“Swing Line Loans”) to the Borrower; provided
that (i) the aggregate principal amount of Swing Line Loans outstanding at any
time shall not exceed the Swing Line Commitment then in effect (notwithstanding
that the Swing Line Loans outstanding at any time, when aggregated with the
Swing Line Lender’s other outstanding Revolving Credit Loans hereunder, may
exceed the Swing Line Commitment then in effect) and (ii) the Borrower shall
not request, and the Swing Line Lender shall not make, any Swing Line Loan if,
after giving effect to the making of such Swing Line Loan, the aggregate amount
of the Available Revolving Credit Commitments would be less than zero.  During the Revolving Credit Commitment
Period, the Borrower may use the Swing Line Commitment by borrowing, repaying
and reborrowing, all in accordance with the terms and conditions hereof.  Swing Line Loans shall be Base Rate Loans
only.


(c)   The Borrower
shall repay all outstanding Loans on the Revolving Credit Termination Date.


2.2  
Procedure for Borrowing; Swing Line
Loans; Refunding of Swing Line Loans. 
(a)    The Borrower may borrow Revolving Credit
Loans under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 12:00 Noon, New York City time, (i) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (ii) one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Loans), specifying (A) the amount and Type of Revolving
Credit Loans to be borrowed, (B) the requested Borrowing Date and (C) in the
case of Eurodollar Loans, the length of the initial Interest Period
therefor.  Any Revolving Credit Loans
made on the Closing Date shall initially be Base Rate Loans and may be
converted to Eurodollar Loans pursuant to Section 2.7.  Each borrowing under the Revolving Credit
Commitments shall be in an amount equal to (x) in the case of Base Rate Loans,
$1,000,000 or a whole multiple thereof (or, if the then aggregate Available
Revolving Credit Commitments are less than $1,000,000, such lesser amount) and
(y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple of
$1,000,000 in excess thereof, provided, that the Swing Line Lender may
request, on behalf of the Borrower, borrowings under the Revolving Credit
Commitments which are Base Rate Loans in other amounts pursuant to Section
2.2(c).  Upon receipt of any such notice
from the Borrower, the Administrative Agent shall promptly notify each Lender
thereof.  Each Lender will make the
amount of its pro  rata share of each borrowing of Revolving
Credit Loans available to the Administrative Agent for the account of the
Borrower at the Funding Office prior to 12:00 Noon, New York City time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent.  Such borrowing
will then be made available to the Borrower by the Administrative Agent in like
funds as received by the Administrative Agent.


 


25

















 


(b)   Whenever the
Borrower desires that the Swing Line Lender make Swing Line Loans it shall give
the Swing Line Lender irrevocable telephonic notice confirmed promptly in
writing (which telephonic notice must be received by the Swing Line Lender not
later than 1:00 P.M., New York City time, on the proposed Borrowing Date),
specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date
(which shall be a Business Day during the Revolving Credit Commitment
Period).  Each borrowing under the Swing
Line Commitment shall be in an amount equal to $100,000 or a whole multiple of
$100,000 in excess thereof.  Not later
than 3:00 P.M., New York City time, on the Borrowing Date specified in a notice
in respect of Swing Line Loans, the Swing Line Lender shall make available to
the Administrative Agent at the Funding Office an amount in immediately
available funds equal to the amount of the Swing Line Loan to be made by the
Swing Line Lender.  The Administrative
Agent shall make the proceeds of such Swing Line Loan available to the Borrower
on such Borrowing Date in immediately available funds.


(c)   The Swing
Line Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs the
Swing Line Lender to act on its behalf), on one Business Day’s notice given by
the Swing Line Lender no later than 12:00 Noon, New York City time, request
each Lender to make, and each Lender hereby agrees to make, a Revolving Credit
Loan, in an amount equal to such Lender’s Revolving Credit Percentage of the
aggregate amount of the Swing Line Loans (the “Refunded Swing Line Loans”)
outstanding on the date of such notice, to repay the Swing Line Lender.  Each Lender shall make the amount of such
Revolving Credit Loan available to the Administrative Agent at the Funding
Office in immediately available funds, not later than 10:00 A.M., New York City
time, one Business Day after the date of such notice.  The proceeds of such Revolving Credit Loans shall be immediately
made available by the Administrative Agent to the Swing Line Lender for
application by the Swing Line Lender to the repayment of the Refunded Swing
Line Loans.


(d)   If prior to
the time a Revolving Credit Loan would have otherwise been made pursuant to
Section 2.2(c), one of the events described in Section 7(f) shall have occurred
and be continuing with respect to the Borrower or if for any other reason, as
determined by the Swing Line Lender in its sole discretion, Revolving Credit
Loans may not be made as contemplated by Section 2.2(c), each Lender shall, on
the date such Revolving Credit Loan was to have been made pursuant to the
notice referred to in Section 2.2(c) (the “Refunding Date”), purchase for
cash an undivided participating interest in the then outstanding Swing Line
Loans by paying to the Swing Line Lender an amount (the “Swing Line
Participation Amount”) equal to (i) such Lender’s Revolving Credit
Percentage times (ii) the sum of the aggregate principal amount of Swing
Line Loans then outstanding which were to have been repaid with such Revolving
Credit Loans.


(e)   Whenever, at
any time after the Swing Line Lender has received from any Lender such Lender’s
Swing Line Participation Amount, the Swing Line Lender receives any payment on
account of the Swing Line Loans, the Swing Line Lender will distribute to such
Lender its Swing Line Participation Amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender’s
participating interest was outstanding and funded and, in the case of principal
and interest payments, to reflect such Lender’s pro  rata portion
of such payment if such payment is not sufficient to pay the principal


 


26

















 


of and interest on all Swing Line Loans then due); provided,
however, that in the event that such payment received by the Swing Line
Lender is required to be returned, such Lender will return to the Swing Line
Lender any portion thereof previously distributed to it by the Swing Line
Lender.


(f)   Each
Lender’s obligation to make the Revolving Credit Loans referred to in Section
2.2(c) and to purchase participating interests pursuant to Section 2.2(d) shall
be absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any setoff, counterclaim, recoupment,
defense or other right which such Lender or the Borrower may have against the
Swing Line Lender, the Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default or the
failure to satisfy any of the other conditions specified in Section 4; (iii)
any adverse change in the condition (financial or otherwise) of the Borrower;
(iv) any breach of this Agreement or any other Loan Document by the Borrower,
any other Loan Party or any other Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.


2.3  
Repayment of Loans; Evidence of Debt.  (a)    The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the appropriate Lender the then unpaid principal amount of each Loan
of such Lender on the Revolving Credit Termination Date (or such earlier date
on which the Loans become due and payable pursuant to Section 7). The Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Loans from time to time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in Section 2.9.


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


(c)   The
Administrative Agent, on behalf of the Borrower, shall maintain the Register
pursuant to Section 9.6(d), and a subaccount therein for each Lender, in which
shall be recorded (i) the amount of each Loan made hereunder and any Note
evidencing such Loan, the Type thereof and each Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii)
both the amount of any sum received by the Administrative Agent hereunder from
the Borrower and each Lender’s share thereof.


(d)   The entries
made in the Register and the accounts of each Lender maintained pursuant to
Section 2.3(b) shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, however, that the failure of
any Lender or the Administrative Agent to maintain the Register or any such
account, or any error therein, shall not in any manner affect the obligation of
the Borrower to repay (with applicable interest) the Loans made to the Borrower
by such Lender in accordance with the terms of this Agreement.


(e)   The Borrower
agrees that, upon the request to the Administrative Agent by any Lender, the
Borrower will execute and deliver to such Lender a promissory note of the


 


27

















 


Borrower evidencing any Revolving Credit Loans or
Swing Line Loans, as the case may be, of such Lender, substantially in the
forms of Exhibit G-1 and G-2, respectively, with appropriate insertions as to
date and principal amount; provided that delivery of such notes shall
not be a condition precedent to the making of the Loans on the Closing Date.


2.4  
Commitment Fees, etc.  (a)  The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee for the period from and
including the Closing Date to the last day of the Revolving Credit Commitment
Period, computed at the Commitment Fee Rate on the average daily amount of the
Available Revolving Credit Commitment of such Lender during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Revolving Credit Termination
Date (or any earlier date of termination of the Revolving Credit Commitments),
commencing on the first of such dates to occur after the date hereof.


(b)   The Borrower
agrees to pay to the Agents the fees in the amounts and on the dates agreed to
in writing by the Borrower and the Agents prior to the Closing Date.


2.5  
Termination or Reduction of
Revolving Credit Commitments.  The
Borrower shall have the right, upon not less than three Business Days’ notice
to the Administrative Agent (which shall promptly notify each Lender thereof),
to terminate the Revolving Credit Commitments or, from time to time, to reduce
the amount of the Revolving Credit Commitments; provided that no such
termination or reduction of Revolving Credit Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the Revolving Credit
Loans and/or Swing Line Loans made on the effective date thereof, the Total
Revolving Extensions of Credit would exceed the Total Revolving Credit
Commitments.  Any such reduction shall
be in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce
permanently the Revolving Credit Commitments then in effect.


2.6  
Optional Prepayments.  The Borrower may at any time and from time to time prepay the
Loans, in whole or in part, without premium or penalty (except as otherwise
provided herein), upon irrevocable notice delivered to the Administrative Agent
at least three Business Days prior thereto in the case of Eurodollar Loans and
at least one Business Day prior thereto in the case of Base Rate Loans, which
notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurodollar Loans or Base Rate Loans; provided, that if
a Eurodollar Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower shall also pay any amounts owing pursuant
to Section 2.15.  Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof.  If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of prepayments of Base
Rate Loans) accrued interest to such date on the amount prepaid.  Partial prepayments of Revolving Credit
Loans shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof, and partial prepayments of Swing Line Loans shall be in an
aggregate principal amount of $100,000 or a whole multiple thereof.


 


2.7  
Conversion and Continuation Options.  (a)    The
Borrower may elect from time to time to convert Eurodollar Loans to Base Rate
Loans by giving the Administrative Agent


 


28

















 


at
least two Business Days’ prior irrevocable notice of such election, provided
that any such conversion of Eurodollar Loans may only be made on the last day
of an Interest Period with respect thereto. 
The Borrower may elect, from time to time, to convert Base Rate Loans to
Eurodollar Loans by giving the Administrative Agent at least three Business
Days’ prior irrevocable notice of such election (which notice shall specify the
length of the initial Interest Period therefor); provided that no Base
Rate Loan may be converted into a Eurodollar Loan (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Required Lenders have determined in its or their sole discretion not to permit
such conversions or (ii) after the date that is one month prior to the
Revolving Credit Termination Date.  Upon
receipt of any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.


(b)   Any
Eurodollar Loan may be continued as such upon the expiration of the then
current Interest Period with respect thereto by the Borrower giving irrevocable
notice to the Administrative Agent, in accordance with the applicable
provisions of the term “Interest Period” set forth in Section 1.1, of the
length of the next Interest Period to be applicable to such Revolving Credit
Loans; provided that no Eurodollar Loan may be continued as such (i)
when any Event of Default has occurred and is continuing and the Administrative
Agent has or the Required Lenders have determined in its or their sole
discretion not to permit such continuations or (ii) after the date that is one
month prior to the Revolving Credit Termination Date, and provided, further,
that if the Borrower shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Revolving Credit Loans shall be automatically converted
to Base Rate Loans on the last day of such then expiring Interest Period.  Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.


2.8  
Minimum Amounts and Maximum Number
of Eurodollar Tranches. 
Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that, (a) after giving
effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and (b) no more than ten Eurodollar Tranches
shall be outstanding at any one time.


2.9  
Interest Rates and Payment Dates.  (a)    Each
Eurodollar Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurodollar Rate
determined for such day plus the Applicable Margin.


(b)   Each Base
Rate Loan shall bear interest at a rate per annum equal to the Base Rate plus
the Applicable Margin.


(c)  
(i)    If all or a portion of the principal amount of any
Loan or Reimbursement Obligations shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), all outstanding Loans and
Reimbursement Obligations (whether or not overdue) shall bear interest at a
rate per annum that is equal to (x) in the case of Loans, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
Section plus 2% and


 


29

















 


(y) in the case of Reimbursement Obligations, the
rate applicable to Base Rate Loans plus 2%, and (ii) if all or a portion
of any interest payable on any Loans and Reimbursement Obligations (whether or
not overdue) or any commitment fee or other amount payable hereunder shall not
be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal
to the rate then applicable to Base Rate Loans plus 2%, in each case,
with respect to clauses (i) and (ii) above, from the date of such non-payment
until such amount is paid in full (after as well as before judgment).


(d)   Interest
shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this Section shall be payable
from time to time on demand.


2.10  
Computation of Interest and Fees.  (a)    Interest, fees
and commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base
Rate Loans the rate of interest on which is calculated on the basis of the
Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed.  The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of a Eurodollar Rate.  Any change in the
interest rate on a Loan resulting from a change in the Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective.  The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of the effective date
and the amount of each such change in interest rate.


(b)   Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. 
The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to Section 2.10(a).


2.11  
Inability to Determine Interest Rate.  If prior to the first day of any Interest
Period:


(a)  
the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or


(b)  
the Administrative Agent shall have received notice from the Required Lenders
that the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their affected
Revolving Credit Loans during such Interest Period,


the Administrative Agent
shall give telecopy or telephonic notice thereof to the Borrower and the
relevant Lenders as soon as practicable thereafter.  If such notice is given (x) any Eurodollar Loans requested to be
made on the first day of such Interest Period shall be made as Base Rate 


30

















 


Loans, (y) any
Revolving Credit Loans that were to have been converted on the first day of
such Interest Period to Eurodollar Loans shall be continued as Base Rate Loans
and (z) any outstanding Eurodollar Loans shall be converted, on the last day of
the then current Interest Period with respect thereto, to Base Rate Loans.  Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert Revolving Credit Loans
to Eurodollar Loans.


2.12  
Pro Rata Treatment and Payments.  (a)    Each
borrowing by the Borrower of Revolving Credit Loans hereunder and any reduction
of the Revolving Credit Commitments of the Lenders shall be made pro  rata
according to the respective Revolving Credit Percentages of the Lenders.  Other than with respect to any substituted
Lender in accordance with Section 2.18, each payment in respect of principal or
interest in respect of the Revolving Credit Loans, each payment in respect of
commitment fees payable hereunder shall be applied to the amounts of such
obligations owing to the Lenders pro  rata according to the
respective amounts then due and owing to the Lenders.  Each payment in respect of Reimbursement Obligations in respect
of any Letter of Credit shall be made to the Issuing Lender that issued such
Letter of Credit.


(b)   All payments
(including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff
or counterclaim and shall be made prior to 12:00 Noon, New York City time, on
the due date thereof to the Administrative Agent, for the account of the
Lenders, at the Payment Office, in Dollars and in immediately available
funds.  Any payment made after 12:00 Noon,
New York City time, on any Business Day shall be deemed to have been made on
the next succeeding Business Day.  The
Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. 
If any payment hereunder (other than payments on the Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day.  If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.  In the case of any extension of any payment
of principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.


(c)   Unless the
Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its
share of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount.  If such amount is not made
available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on demand,
such amount with interest thereon at a rate equal to the daily average Federal
Funds Effective Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent.  A certificate of the Administrative Agent submitted to any Lender
with respect to any amounts owing under this paragraph shall be conclusive in
the absence of manifest error.  If such
Lender’s share of such borrowing is not made available to the Administrative
Agent by such Lender within three Business Days of such Borrowing Date, the 


 


31

















 


Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Base Rate Loans, on demand, from the Borrower.


(d)   Unless the
Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made hereunder that the Borrower will not
make such payment to the Administrative Agent, the Administrative Agent may
assume that the Borrower is making such payment, and the Administrative Agent
may, but shall not be required to, in reliance upon such assumption, make
available to the Lenders their respective pro  rata shares of a
corresponding amount.  If such payment
is not made to the Administrative Agent by the Borrower within three Business
Days of such due date, the Administrative Agent shall be entitled to recover,
on demand, from each Lender to which any amount which was made available
pursuant to the preceding sentence, such amount with interest thereon at a rate
per annum equal to the daily average Federal Funds Effective Rate.  Nothing herein shall be deemed to limit the
rights of the Administrative Agent or any Lender against the Borrower.


2.13  
Requirements of Law.  (a)    If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:


(i)  
shall subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 2.14 and changes in
the rate of tax on the overall net income of such Lender);


(ii)  
shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or
other liabilities in or for the account of, advances, loans or other extensions
of credit by, or any other acquisition of funds by, any office of such Lender
that is not otherwise included in the determination of the Eurodollar Rate
hereunder; or


(iii)  
shall impose on such Lender any other condition;


and the result of any of the
foregoing is to increase the cost to such Lender, by an amount which such
Lender deems to be material, of making, converting into, continuing or
maintaining Eurodollar Loans or issuing or participating in Letters of Credit,
or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, the Borrower shall promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable.  If any
Lender becomes entitled to claim any additional amounts pursuant to this Section,
it shall promptly notify the Borrower (with a copy to the Administrative Agent)
of the event by reason of which it has become so entitled.


(b)   If any
Lender shall have determined that the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether
or not having the force of law) from any 


 


32

















 


Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such Lender’s or
such corporation’s capital as a consequence of its obligations hereunder to a
level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such
Lender’s or such corporation’s policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
corporation for such reduction.


(c)   A
certificate as to any additional amounts payable pursuant to this Section
submitted by any Lender to the Borrower setting out in reasonable detail the
method of determination of such additional amounts (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest
error.  The obligations of the Borrower
pursuant to this Section shall survive the termination of this Agreement and the
payment of amounts payable hereunder.


2.14  
Taxes.  (a)    All payments
made by the Borrower under this Agreement shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former
connection between the Administrative Agent or such Lender and the jurisdiction
of the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent’s or such Lender’s having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document).  If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings (“Non-Excluded Taxes”) are required to
be withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to such
Lender’s failure to comply with the requirements of paragraph (d) or (e) of
this Section or (ii) that are United States withholding taxes imposed on
amounts payable to such Lender at the time such Lender becomes a party to this
Agreement, except to the extent that such Lender’s assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Non-Excluded Taxes pursuant to Section 2.14(a).


(b)   In addition,
the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.


(c)   Whenever any
Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent


 


33

















 


for the account of the Administrative Agent or
relevant Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof.  If the Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority
or fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent or any Lender as a result of any
such failure.  The agreements in this
Section 2.14 shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.


(d)   Each Lender
(or Transferee) that is not a citizen or resident of the United States of
America, a corporation, partnership or other entity created or organized in or
under the laws of the United States of America (or any jurisdiction thereof),
or any estate or trust that is subject to federal income taxation regardless of
the source of its income (a “Non-U.S. Lender”) shall deliver to
the Borrower and the Administrative Agent (and, in the case of a Participant or
a Lender participating in a conduit financing arrangement, as defined in
Section 7701(1) of the Code and the regulations thereunder (a “Conduit
Financing Arrangement”) (such Lender, a “Conduit Lender”), also to
the Lender from which the related participation shall have been purchased or
from which the designation of such Conduit Lender was made, as the case may be)
two copies of either U.S. Internal Revenue Service Form W-8BEN, Form W-8ECI
or Form W-8IMY, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of “portfolio interest” a statement substantially in
the form of Exhibit H and a Form W-8BEN or Form W-8IMY, or any subsequent
versions thereof or successors thereto properly completed and duly executed by
such Non-U.S. Lender claiming complete exemption from, or a reduced rate
of, U.S. federal withholding tax on all payments by the Borrower under this
Agreement and the other Loan Documents. 
Such forms shall be delivered by each Non-U.S. Lender on or before
the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation).  In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Lender.  Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).  Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form
pursuant to this paragraph that such Non-U.S. Lender is not legally able
to deliver.  If any Non-U.S. Lender
provides a Form W-8IMY, such Non-U.S. Lender must also attach the additional
documentation that must be transmitted with Form W-8IMY, including the appropriate
forms described in this Section 2.14(d). 
A Conduit Lender shall provide two copies of the appropriate withholding
statements for all participants and parties to a potential Conduit Financing
Arrangement to the Borrower and the Administrative Agent on or before the date
of commencement of the potential Conduit Financing Arrangement.


(e)   A Lender
that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower, such properly completed and executed


 


34

















 


documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate, provided
that such Lender is legally entitled to complete, execute and deliver such
documentation and in such Lender’s reasonable judgment such completion,
execution or submission would not materially prejudice the legal position of
such Lender.


(f)   If the
Administrative Agent or any Lender receives a refund in respect of Non-Excluded
Taxes or Other Taxes paid by the Borrower, which in the good faith judgment of
such Lender is allocable to such payment, it shall promptly pay such refund,
together with any other amounts paid by the Borrower in connection with such
refunded Non-Excluded Taxes or Other Taxes, to the Borrower, net of all
out-of-pocket expenses of such Lender incurred in obtaining such refund, provided,
however, that the Borrower agrees to promptly return such refund to the
Administrative Agent or the applicable Lender, as the case may be, if it
receives notice from the Administrative Agent or applicable Lender that the
Administrative Agent or such Lender is required to repay such refund.


(g)  
No Conduit Lender or other participant in a potential Conduit Financing Arrangement
shall be entitled to receive any greater amount pursuant to Section 2.14 than
the financing entity (as defined in Treas. Reg. § 1.881-3(a)(2)) would be
entitled to receive pursuant to Section 2.14.


2.15  
Indemnity.  The
Borrower agrees to indemnify each Lender for and to hold each Lender harmless
from any loss or expense that such Lender may reasonably sustain or incur as a
consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b)  default by the Borrower
in making any prepayment after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment or conversion of Eurodollar Loans on a day that is not the last day
of an Interest Period with respect thereto. 
Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest that would have accrued on the amount so prepaid
or converted, or not so borrowed, converted or continued, for the period from
the date of such prepayment or conversion or of such failure to borrow, convert
or continue to the last day of such Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Revolving Credit Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) that would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar market.  A certificate as to any amounts payable
pursuant to this Section submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error. 
This covenant shall survive the termination of this Agreement and the
payment of the Revolving Credit Loans and all other amounts payable hereunder.


2.16  
Illegality. 
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Lender to make or maintain Eurodollar
Loans as contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurodollar Loans, continue


 


35

















 


Eurodollar
Loans as such and convert Base Rate Loans to Eurodollar Loans shall forthwith
be canceled and (b) such Lender’s Revolving Credit Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect
to such Revolving Credit Loans or within such earlier period as required by
law.  If any such conversion of a
Eurodollar Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Borrower shall pay to such Lender
such amounts, if any, as may be required pursuant to Section 2.15.


2.17  
Change of Lending Office.  Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.13, 2.14(a) or 2.16 with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans affected by such event with the object of
avoiding the consequences of such event; provided, that such designation
is made on terms that, in the sole judgment of such Lender, cause such Lender
and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section
shall affect or postpone any of the obligations of the Borrower or the rights
of any Lender pursuant to Section 2.13, 2.14(a) or 2.16.


2.18  
Substitution of Lenders.  Upon the receipt by the Borrower from any
Lender (an “Affected Lender”) of a claim under Section 2.13, 2.14 or
2.16, the Borrower may: (a) request one more of the other Lenders to acquire
and assume all or part of such Affected Lender’s Loans, Reimbursement
Obligations and Revolving Credit Commitment; or (b) replace such Affected
Lender by designating another Lender or a financial institution that is willing
to acquire such Loans and Reimbursement Obligations and assume such Revolving
Credit Commitment;  provided that
(i) such replacement does not conflict with any Requirement of Law, (ii) no
Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) the Borrower shall repay (or the replacement bank or
institution shall purchase, at par) all Loans and Reimbursement Obligations,
accrued interest and other amounts owing to such replaced Lender prior to the
date of replacement (including all amounts then owing to such replaced Lender
pursuant to Sections 2.13, 2.14 and 2.16), (iv) the Borrower shall be liable to
such replaced Lender under Section 2.15 if any Eurodollar Loan owing to such
replaced Lender shall be prepaid (or purchased) other than on the last day of
the Interest Period relating thereto, (v) the replacement bank or institution,
if not already a Lender, shall be reasonably satisfactory to the Administrative
Agent, and (vi) the replaced Lender shall be obligated to make such replacement
in accordance with the provisions of Section 9.6 (provided that the
Borrower or replacement Lender shall be obligated to pay the registration and
processing fee).


2.19   L/C Commitment(a)   .  (a)         Subject to the
terms and conditions hereof, each Issuing Lender, in reliance on the agreements
of the other Lenders set forth in Section 2.22(a), agrees to issue letters of
credit (the letters of credit issued on and after the Closing Date, together
with the Existing Letters of Credit, collectively, the “Letters of Credit”)
for the account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by such
Issuing Lender; provided that no Issuing Lender shall have any
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii)
the aggregate amount of the Available Revolving Credit Commitments would be
less than zero.  Each Letter of Credit
shall (i) be denominated in Dollars and (ii) expire no later than the earlier
of (x) the first anniversary


 


36

















 


of its date of issuance and (y) the date which is
five Business Days prior to the Revolving Credit Termination Date, provided
that any Letter of Credit with a one-year term may provide for the renewal
thereof for additional one-year periods (which shall in no event extend beyond
the date referred to in clause (y) above).


(b)
       No Issuing Lender shall at any time
be obligated to issue any Letter of Credit hereunder if such issuance would
conflict with, or cause such Issuing Lender or any L/C Participant to exceed
any limits imposed by, any applicable Requirement of Law.


2.20  
Procedure for Issuance of Letter of
Credit.  The Borrower may from time
to time request that an Issuing Lender issue a Letter of Credit by delivering
to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the reasonable satisfaction of such Issuing
Lender, and such other certificates, documents and other papers and information
as such Issuing Lender may reasonably request with respect to the requested
Letter of Credit.  Upon receipt of any
Application, an Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
any Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed to by such Issuing Lender and the Borrower.  Promptly after issuance by an Issuing Lender
of a Letter of Credit, such Issuing Lender shall furnish a copy of such Letter
of Credit to the Borrower.  Each Issuing
Lender shall promptly furnish to the Administrative Agent, which shall in turn
promptly furnish to the Lenders, notice of the issuance of each Letter of
Credit issued by it (including the amount thereof).


2.21  
Fees and Other Charges.  (a)    The Borrower will
pay a fee on the aggregate drawable amount of all outstanding Letters of Credit
at a per annum rate equal to the Applicable Margin then in effect with respect
to Revolving Credit Loans that are Eurodollar Loans, shared ratably among the
Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the
issuance date.  In addition, the
Borrower shall pay to each Issuing Lender for its own account a fronting fee on
the aggregate drawable amount of all outstanding Letters of Credit issued by it
in an amount to be agreed upon from time to time between such Issuing Lender
and the Borrower, payable quarterly in arrears on each L/C Fee Payment Date
after the Issuance Date.


(b)   In addition
to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lender
for such normal and customary costs and expenses as are incurred or charged by
such Issuing Lender in issuing, negotiating, effecting payment under, amending
or otherwise administering any Letter of Credit.


2.22  
L/C Participations.  (a)    Each
Issuing Lender irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce each Issuing Lender to issue Letters of Credit
hereunder, each L/C Participant irrevocably agrees to accept and purchase and
hereby accepts and purchases from each Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant’s own account and risk
an undivided interest equal to such L/C


 


37

















 


Participant’s
Revolving Credit Percentage in each Issuing Lender’s obligations and rights
under and in respect of each Letter of Credit issued by such Issuing Lender
hereunder and the amount of each draft paid by such Issuing Lender
thereunder.  Each L/C Participant
unconditionally and irrevocably agrees with each Issuing Lender that, if a
draft is paid under any Letter of Credit by such Issuing Lender for which such
Issuing Lender is not reimbursed in full by the Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay to such Issuing Lender
upon demand at such Issuing Lender’s address for notices specified herein an
amount equal to such L/C Participant’s Revolving Credit Percentage of the
amount of such draft, or any part thereof, that is not so reimbursed.


(b)   If any
amount required to be paid by any L/C Participant to an Issuing Lender pursuant
to Section 2.22(a) in respect of any unreimbursed portion of any payment made
by such Issuing Lender under any Letter of Credit is paid to such Issuing
Lender within three Business Days after the date such payment is due, such L/C
Participant shall pay to such Issuing Lender on demand an amount equal to the
product of (i) such amount, times (ii) the daily average Federal Funds
Effective Rate during the period from and including the date such payment is
required to the date on which such payment is immediately available to such
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360.  If any such amount required to be paid by
any L/C Participant pursuant to Section 2.22(a) is not made available to such
Issuing Lender by such L/C Participant within three Business Days after the
date such payment is due, such Issuing Lender shall be entitled to recover from
such L/C Participant, on demand, such amount with interest thereon calculated
from such due date at the rate per annum applicable to Base Rate Loans.  A certificate of such Issuing Lender
submitted to any L/C Participant with respect to any such amounts owing under
this Section shall be conclusive in the absence of manifest error.


(c)   Whenever, at
any time after an Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its pro  rata share of
such payment in accordance with Section 2.22(a), such Issuing Lender receives
any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by such
Issuing Lender), or any payment of interest on account thereof, such Issuing
Lender will distribute to such L/C Participant its pro  rata share
thereof; provided, however, that in the event that any such
payment received by such Issuing Lender shall be required to be returned by
such Issuing Lender, such L/C Participant shall return to such Issuing Lender
the portion thereof previously distributed by such Issuing Lender to it.


(d)   Each
Lender’s obligation to purchase, pursuant to Section 2.22(a), such Lender’s
Revolving Credit Percentage in each Issuing Lender’s obligations and rights
under and in respect of each Letter of Credit issued by such Issuing Lender
hereunder shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or the Borrower may have
against such Issuing Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 4; (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any other Loan Party; (iv) any breach of this Agreement or
any other Loan Document by the Borrower, any other Loan Party or any other


 


38

















 


Lender; or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.


2.23  
Reimbursement Obligation of the
Borrower.  The Borrower agrees to
reimburse each Issuing Lender on each date on which such Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by such Issuing Lender (but in any event no such
reimbursement shall be required before the date on which Base Rate Loans would
be made (or the procedure specified in Section 2.22 would become applicable) as
described in the last two sentences of this Section) for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment (the amounts
described in the foregoing clauses (a) and (b) in respect of any drawing,
collectively, the “Payment Amount”). 
Each such payment shall be made to such Issuing Lender at its address
for notices specified herein in lawful money of the United States of America
and in immediately available funds. 
Interest shall be payable on each Payment Amount from the date of the
applicable drawing until payment in full at the rate set forth in
(i) until the second Business Day following the date of the applicable
drawing, Section 2.9(b) and (ii) thereafter, Section 2.9(c).  Each drawing under any Letter of Credit
shall (unless an event of the type described in clause (i) or (ii) of Section
7(f) shall have occurred and be continuing with respect to the Borrower, in
which case the procedures specified in Section 2.22 for funding by L/C
Participants shall apply) constitute a request by the Borrower to the
Administrative Agent for a borrowing pursuant to Section 2.2 of Base Rate Loans
in the amount of such drawing.  The
Borrowing Date with respect to such borrowing shall be the first date on which
a borrowing of Revolving Credit Loans could be made, pursuant to Section 2.2,
if the Administrative Agent had received a notice of such borrowing at the time
of such drawing under such Letter of Credit.


2.24  
Obligations Absolute.  The Borrower’s obligations under Sections 2.19 through 2.25 shall
be absolute and unconditional under any and all circumstances and irrespective
of any setoff, counterclaim or defense to payment that the Borrower may have or
have had against any Issuing Lender, any L/C Participant, any beneficiary of a
Letter of Credit or any other Person. 
The Borrower also agrees that each Issuing Lender and the L/C Participant
shall not be responsible for, and the Borrower’s Reimbursement Obligations
under Section 2.23 shall not be affected by, among other things, the validity
or genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrower against any beneficiary of such Letter of
Credit or any such transferee.  No
Issuing Lender or L/C Participant shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except
for errors or omissions found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Issuing Lender.  The
Borrower agrees that any action taken or omitted by an Issuing Lender under or
in connection with any Letter of Credit issued by it or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards or care specified in the Uniform Commercial
Code of the State of New York, shall be binding on the Borrower and shall not
result in any liability of such Issuing Lender or any L/C Participant to the
Borrower.


 


39

















 


2.25  
Letter of Credit Payments.  If any draft shall be presented for payment
under any Letter of Credit, the relevant Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. 
The responsibility of the relevant Issuing Lender to the Borrower in
connection with any draft presented for payment under any Letter of Credit
issued by such Issuing Lender shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.


2.26  
Applications. 
To the extent that any provision of any Application related to any Letter
of Credit is inconsistent with the provisions of Sections 2.19 through 2.25,
the provisions of Sections 2.19 through 2.25 shall apply; provided, however,
that any term, condition or provision of any Application which is in addition
to, or the subject matter of which is not in, part of or covered by, the
provisions of Sections 2.19 through 2.25 shall not be considered as being or
deemed to be in conflict with or inconsistent with the provisions of Sections
2.19 through 2.25.


SECTION 3.  REPRESENTATIONS AND
WARRANTIES


To induce the Agents and the
Lenders to enter into this Agreement and to make the Loans and to issue or
participate in Letters of Credit, the Borrower hereby represents and warrants
to each Agent and each Lender that:


3.1  
Financial Condition.  (a)  The unaudited pro  forma consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at July 3,
2004 (including the notes thereto) (the “Pro Forma Balance Sheet”),
copies of which have heretofore been furnished to each Lender, has been
prepared giving effect (as if such events had occurred on such date) to
(i) the Loans to be made hereunder, if any, on the Closing Date and the
use of proceeds thereof and (ii) the payment of fees and expenses in
connection with the foregoing.  The Pro
Forma Balance Sheet has been prepared based on the best information available
to the Borrower as of the date of delivery thereof, and presents fairly on a
pro forma basis the estimated financial condition of Borrower and its
consolidated Subsidiaries as at July 3, 2004, assuming that the events
specified in the preceding sentence had actually occurred at such date.


(b)   The audited
consolidated balance sheets of the Borrower as at December 29, 2001, December
28, 2002 and January 3, 2004, and the related consolidated statements of income
and of cash flows for the fiscal years ended on such dates, reported on by and
accompanied by an unqualified report from KPMG LLP, present fairly the
consolidated financial condition of the Borrower as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended.  The
unaudited consolidated balance sheet of the Borrower as at July 3, 2004, and
the related unaudited consolidated statements of income and cash flows for the
twenty-six week period ended on such date, present fairly the consolidated
financial condition of Borrower as at such date, and the consolidated results
of its operations and its consolidated cash flows for the twenty-six week period
then ended (subject to normal year-end audit adjustments).  All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by the
aforementioned firm of


 


40

















 


accountants and disclosed therein and subject, in
the case of the financial statements as of and for the period ended July 3,
2004, to normal year end audit adjustments and the absence of notes).  The Borrower and its Subsidiaries do not
have any material Guarantee Obligations, contingent liabilities and liabilities
for taxes, or any long-term leases or unusual forward or long-term
commitments, including, without limitation, any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph.  During
the period from January 3, 2004, to and including the date hereof there has
been no Disposition by the Borrower of any material part of its business or
Property.


3.2  
No Change.  Since
January 3, 2004, there has been no development or event that has had or could
reasonably be expected to have a Material Adverse Effect.


3.3  
Corporate Existence; Compliance
with Law.  Each of the Borrower and
its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has the corporate
or business trust power and authority, and the legal right, to own and operate
its Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or business trust and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of Property or the conduct
of its business requires such qualification and (d) is in compliance with all
Requirements of Law except, in the case of each of the foregoing clauses (c)
and (d), to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.


3.4  
Corporate Power; Authorization;
Enforceable Obligations.  Each Loan
Party has the corporate or business trust power and authority, and the legal
right, to make, deliver and perform the Loan Documents to which it is a party
and, in the case of the Borrower, to borrow and obtain other extensions of
credit hereunder.  Each Loan Party has
taken all necessary corporate action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and, in the case of
the Borrower, to authorize the borrowings and other extensions of credit on the
terms and conditions of this Agreement. 
No consent or authorization of, filing with, notice to or other act by
or in respect of, any Governmental Authority or any other Person is required in
connection with the borrowings and other extensions of credit hereunder or with
the execution, delivery, performance, validity or enforceability of this
Agreement or any of the other Loan Documents, except (i) consents,
authorizations, filings and notices described in Schedule 3.4, which consents,
authorizations, filings and notices have been obtained or made and are in full
force and effect, (ii) the filings referred to in Section 3.19 and (iii)
consents, notices and filings which the failure to make or obtain could not
reasonably be expected to have a Material Adverse Effect.  Each Loan Document has been duly executed
and delivered on behalf of each Loan Party party thereto.  This Agreement constitutes, and each other
Loan Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party party thereto, enforceable against each such Loan
Party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).


41

















3.5   No Legal Bar.  The
execution, delivery and performance of this Agreement and the other Loan Documents,
the issuance of Letters of Credit, borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation of the Borrower or any of its Subsidiaries and will not result in,
or require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security
Documents).  No Requirement of Law or
Contractual Obligation applicable on the Closing Date to the Borrower or any of
its Subsidiaries could reasonably be expected to have a Material Adverse
Effect.


3.6  
No Material Litigation.  No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions contemplated
hereby or thereby, or (b) that could reasonably be expected to have a Material
Adverse Effect.


3.7  
No Default. 
Neither the Borrower nor any of its Subsidiaries is in default under or
with respect to any of its Contractual Obligations in any respect that could
reasonably be expected to have a Material Adverse Effect.  No Default or Event of Default has occurred
and is continuing.


3.8   Ownership of Property; Liens.  Each of the Borrower and each of its
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its real property, subject only to Liens and other matters permitted by Section
6.3, and good title to, or a valid leasehold or other property interest in, all
its other Property, and none of such Property is subject to any Lien except as
permitted by Section 6.3.


3.9  
Intellectual Property.  To the knowledge of the Borrower, the
Borrower and each of its Subsidiaries owns, or is licensed to use, all
Intellectual Property necessary and material for the conduct of its business as
currently conducted.  To the knowledge
of the Borrower, except as indicated on Schedule 3.9, no material claim has
been asserted and is pending by any Person alleging that the use of any
Intellectual Property by the Borrower and its Subsidiaries infringes on the
intellectual property rights of any Person in any material respect nor does the
Borrower know of any valid basis for any such claim.


3.10  
Taxes.  Each of the
Borrower and each of its Subsidiaries has filed or caused to be filed all Federal,
state and other material tax returns that are required to be filed and has paid
all taxes shown to be due and payable on said returns or on any assessments
made against it or any of its Property and all other taxes, fees or other
charges imposed on it or any of its Property by any Governmental Authority
(other than any the amount or validity of which are currently being contested
in good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or its
Subsidiaries, as the case may be); and as of the Closing Date no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.


 


42

















 


3.11  
Federal Regulations.  No part of the proceeds of any Loans and no Letters of Credit
will be used for “purchasing” or “carrying” any “margin stock” within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect or for any purpose that violates the
provisions of the Regulations of the Board. 
If requested by any Lender or the Administrative Agent, the Borrower
will furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form G-3 or FR Form
U-1 referred to in Regulation U.


3.12  
Labor Matters. 
There are no strikes or other labor disputes against the Borrower or any
of its Subsidiaries pending or, to the knowledge of the Borrower, threatened
that (individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect.  Hours worked
by and payment made to employees of the Borrower and its Subsidiaries have not
been in violation of the Fair Labor Standards Act or any other applicable
Requirement of Law dealing with such matters that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect.  All payments due from the Borrower or any of
its Subsidiaries on account of employee health and welfare insurance that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect if not paid have been paid or accrued as a liability on
the books of the Borrower or the relevant Subsidiary.


3.13   ERISA.  Neither a
Reportable Event nor an “accumulated funding deficiency” (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code.  No termination of a Single Employer Plan has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period.  The present value of
all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by more than $2,000,000.  Neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial withdrawal
from any Multiemployer Plan that has resulted or could reasonably be expected
to result in a material liability under ERISA, and neither the Borrower nor any
Commonly Controlled Entity would become subject to any liability under ERISA if
the Borrower or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made that could
reasonably be expected to have a Material Adverse Effect.  No such Multiemployer Plan is in
Reorganization or Insolvent as of the Closing Date.


3.14  
Investment Company Act; Other
Regulations.  No Loan Party is an
“investment company”, or a company “controlled” by an “investment company”, within
the meaning of the Investment Company Act of 1940, as amended.  No Loan Party is subject to regulation under
any Requirement of Law (other than Regulation X of the Board) which limits its
ability to incur Indebtedness.


3.15   Subsidiaries. 
(a)  The Subsidiaries listed on Schedule 3.15 constitute all
the Subsidiaries of the Borrower at the date hereof.  Schedule 3.15 sets forth as of the Closing Date the name and
jurisdiction of incorporation of each Subsidiary and, as to each such
Subsidiary, the percentage of each class of Capital Stock owned by any Loan
Party.


 


43

















 


(b)   There are no
outstanding subscriptions, options, warrants, calls, rights or other agreements
or commitments (other than stock options granted to employees or directors and
directors’ qualifying shares) of any nature relating to any Capital Stock of
the Borrower or any Subsidiary.


3.16   Use of Proceeds. 
The proceeds of the Loans shall be used (i) to refinance certain
existing Indebtedness of the Borrower, (ii) to finance the working capital
needs of the Borrower and its Subsidiaries in the ordinary course of business,
and (iii) for Permitted Acquisitions. 
The Letters of Credit shall be used for the working capital needs of the
Borrower and its Subsidiaries.


3.17   Environmental Matters.  Other than exceptions to any of the following that could not,
individually and in the aggregate, reasonably be expected to have a Material
Adverse Effect:


(a)  
the Borrower and its Subsidiaries:  (i) are,
and within the period of all applicable statutes of limitation have been, in
compliance with all applicable Environmental Laws; (ii) hold all Environmental
Permits (each of which is in full force and effect) required for any of their
current operations or for any property owned, leased, or otherwise operated by
any of them; (iii) are, and within the period of all applicable statutes of
limitation have been, in compliance with all of their Environmental Permits;
and (iv) reasonably believe that:  each
of their Environmental Permits will be timely renewed and complied with; any
additional Environmental Permits that may be required of any of them will be
timely obtained and complied with; and compliance with any Environmental Law
that is or is expected to become applicable to any of them will be timely
attained and maintained.


(b)  
Materials of Environmental Concern are not present at, on, under, in, or about
any real property now or, to the knowledge of the Borrower and its
Subsidiaries, formerly owned, leased or operated by the Borrower or any of its
Subsidiaries, or, to the knowledge of the Borrower and its Subsidiaries, at any
other location (including, without limitation, any location to which Materials
of Environmental Concern have been sent for re-use or recycling or for
treatment, storage, or disposal) which could reasonably be expected to (i) give
rise to liability of the Borrower or any of its Subsidiaries under any
applicable Environmental Law or otherwise result in costs to the Borrower or
any of its Subsidiaries, or (ii) interfere with the Borrower’s or any of its
Subsidiaries’ continued operations.


(c)  
There is no judicial, administrative, or arbitral proceeding (including any
notice of violation or alleged violation) under or relating to any Environmental
Law to which the Borrower or any of its Subsidiaries is, or to the knowledge of
the Borrower or any of its Subsidiaries will be, named as a party that is
pending or, to the knowledge of the Borrower or any of its Subsidiaries,
threatened.


 


44

















 


(d)  
Neither the Borrower nor any of its Subsidiaries has received any written
request for information, or been notified that it is a potentially responsible
party under or relating to the federal Comprehensive Environmental Response,
Compensation, and Liability Act or any similar Environmental Law, or with
respect to any Materials of Environmental Concern.


(e)  
Neither the Borrower nor any of its Subsidiaries has entered into or agreed to
any consent decree, order, or settlement or other agreement, or is subject to
any judgment, decree, or order or other agreement, in any judicial,
administrative, arbitral, or other forum for dispute resolution, relating to
compliance with or liability under any Environmental Law.


(f)  
Neither the Borrower nor any of its Subsidiaries has assumed or retained, by
contract, any liabilities of any kind, fixed or contingent, known or unknown,
under any Environmental Law or with respect to any Material of Environmental
Concern.


3.18  
Accuracy of Information, etc.  No written statement or written information
(other than projections) contained in this Agreement, any other Loan Document
or any other document, certificate or written statement furnished to the
Administrative Agent or the Lenders or any of them, by or on behalf of any Loan
Party for use in connection with the transactions contemplated by or pursuant
to this Agreement or the other Loan Documents, contained as of the date such
statement, information, document or certificate was so furnished, any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements contained herein or therein not misleading.  The projections and pro forma financial
information contained in the materials referenced above are based upon good
faith estimates and assumptions believed by management of the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as
fact and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth therein
by a material amount.


3.19  
Security Documents.  The Guarantee and Collateral Agreement is effective to create in
favor of the Administrative Agent, for the benefit of the Lenders, a legal,
valid and enforceable security interest in the Collateral described therein and
proceeds thereof.  In the case of the
Pledged Stock described in the Guarantee and Collateral Agreement, when any
stock certificates representing such Pledged Stock are delivered to the
Administrative Agent together with stock powers endorsed to the Administrative
Agent or in blank, and in the case of the other Collateral described in the
Guarantee and Collateral Agreement, when financing statements in appropriate
form are filed in the offices specified on Schedule 3.19(a)-1, (which financing
statements have been duly completed and delivered to the Administrative Agent)
and such other filings as are specified on Schedule 3 to the Guarantee and
Collateral Agreement (all of which filings have been duly completed), the
Guarantee and Collateral Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in
such Collateral and the proceeds thereof, as security for the Obligations (as
defined in the Guarantee and Collateral Agreement), in each case prior and
superior in right to any other Person (except, in the case of Collateral other
than Pledged Stock, Liens permitted by Section 6.3).  Schedule 3.19(a)-2 lists each UCC Financing Statement (other than
any naming the


 


45

















 


Administrative Agent as secured party) that (i) names
any Loan Party as debtor and (ii) will remain on file after the Closing Date.


3.20  
Solvency.  The
Borrower and each of its Subsidiaries are, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith will be and will continue to be, Solvent.


3.21  
Senior Indebtedness.  The Obligations constitute “Senior Debt” of the Borrower under
and as defined in the Senior Subordinated Note Indenture.  The obligations of each Subsidiary Guarantor
under the Guarantee and Collateral Agreement constitute “Senior Debt” of such
Subsidiary Guarantor under and as defined in the Senior Subordinated Note
Indenture.


SECTION 4.  CONDITIONS PRECEDENT


4.1  
Conditions to Initial Extension of Credit.  The agreement of each Lender to make its
initial extension of credit on or after the Closing Date is subject to the
satisfaction, prior to or concurrently with the making of any extensions of
credit on the Closing Date, of the following conditions precedent:


(a)  
Loan Documents.  The
Administrative Agent shall have received (i) this Agreement, executed and
delivered by a duly authorized officer of the Borrower and (ii) the
Guarantee and Collateral Agreement, executed and delivered by a duly authorized
officer of the Borrower and each Subsidiary Guarantor.


(b)  
Issuance of the EIS and Other Indebtedness.  The Borrower shall have received gross proceeds of at least
$200,000,000 from the issuance of its Senior Notes and at least $337,626,000
from the issuance of the EIS (which includes $190,000,000 from the issuance of
the Senior Subordinated Notes), in each case, on terms satisfactory to the
Lenders.  The capital structure of each
Loan Party shall be as set forth in the S-1 filed on September 15, 2004 with
the SEC.


(c)  
Pro Forma Balance Sheet; Financial Statements.  The Lenders shall have received and be satisfied (in form and
substance) with the Pro Forma Balance Sheet and the financial statements
described in Section 3.1.


(d)  
Approvals. All governmental and third party approvals reasonably
necessary in the discretion of the Administrative Agent in connection with the
financing contemplated hereby and the continuing operations of the Borrower and
its Subsidiaries shall have been obtained and be in full force and effect; 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 financing contemplated hereby; and
the Administrative Agent shall have received a certificate of a Responsible
Officer to the foregoing effect, which certificate shall also either (i)
certify that no such approvals are required or (ii) have attached to it copies
of any such required approvals.


 


46

















 


(e)  
Related Agreements.  The
Administrative Agent shall have received (in a form reasonably satisfactory to
the Administrative Agent), true and correct copies, certified as to
authenticity by the Borrower, of the Senior Note Indenture, the EIS
Documentation and such other documents or instruments as may be reasonably
requested by the Administrative Agent.


(f)  
Fees.  The Arranger and the
Administrative Agent shall have received all fees required to be paid, and all
expenses for which invoices have been presented (including reasonable fees,
disbursements and other charges of counsel to the Administrative Agent), on or
before the Closing Date.  All such
amounts will be paid from the issuance of the Senior Notes  and will be
reflected in the funding instructions given by the Borrower to the
Administrative Agent on or before the Closing Date.


(g)  
Business Plan.  The
Administrative Agent shall have received satisfactory business projections for
the Borrower and its Subsidiaries for fiscal years 2004-2008.


(h)  
Lien Searches.  The
Administrative Agent shall have received the results of a recent lien search in
each relevant jurisdiction with respect to the Borrower and its Subsidiaries,
and such search shall reveal no liens on any of the assets of the Borrower or
its Subsidiaries except for liens permitted by Section 6.3 or liens to be
discharged on or prior to the Closing Date pursuant to documentation
satisfactory to the Administrative Agent.


(i)  
Closing Certificate.  The
Administrative Agent shall have received a certificate of each Loan Party,
dated the Closing Date, substantially in the form of Exhibit C, with
appropriate insertions and attachments.


(j)  
Legal Opinions.  The
Administrative Agent shall have received the following executed legal opinions:


(i)  
the legal opinion of Dechert LLP, counsel to the Borrower and its Subsidiaries,
substantially in the form of Exhibit F; and


(ii)  
the legal opinion of [local counsel in Vermont], which opinion shall be in form
and substance satisfactory to the Administrative Agent.


Each such legal opinion
shall cover such other matters incident to the transactions contemplated by
this Agreement as the Administrative Agent may reasonably require.


(k)  
Pledged Stock; Stock Power .  The
Administrative Agent shall have received the certificates representing the
shares of Capital Stock pledged pursuant to the Guarantee and Collateral
Agreement, together with an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor thereof.


(l)  
Filings, Registrations and Recordings. 
Each document (including, without limitation, any Uniform Commercial
Code financing statement) required by the Security Documents or under law
or reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for the 


47

















 


benefit of the Lenders, a
perfected Lien on the Collateral described therein, prior and superior in right
to any other Person (other than with respect to Liens and other matters
expressly permitted by Section 6.3), shall be in proper form for filing,
registration or recordation.


(m)  
Insurance.  The Administrative
Agent shall have received insurance certificates satisfying the requirements of
Section 5.3 of the Guarantee and Collateral Agreement.


(n)  
Leverage Ratio.  As of the
Closing Date, the ratio of the Borrower’s Consolidated Total Debt to the
Borrower’s pro  forma Consolidated EBITDA for the four consecutive
fiscal quarters ended July 3, 2004 shall not be greater than 5.35 to 1.0.  The Lenders shall have received a
certificate from the Borrower containing all information and calculations
necessary for determining compliance with the foregoing requirement.


(o)  
Termination of Existing Credit Agreement.  The Administrative Agent shall have received evidence
satisfactory to the Administrative Agent that the Existing Credit Agreement
shall be simultaneously terminated, all amounts thereunder shall be
simultaneously paid in full and arrangements satisfactory to the Administrative
Agent shall have been made for the termination (or assignment to the
Administrative Agent) of Liens and security interests granted in connection
therewith.


(p)  
Solvency.  The Lenders shall have
received a Solvency Certificate executed by the chief financial officer of the
Borrower which shall document the solvency of each Loan Party after giving
effect to the transactions contemplated hereby.


(q)  
Merger.  The merger of Old
B&G Foods, Inc. with and into B&G Foods Holdings Corp. shall have
become effective by the filing of a Certificate of Merger with the Secretary of
State of the State of Delaware, and B&G Foods Holdings Corp. shall have
filed an amendment to its certificate of incorporation with the Secretary of
the State of Delaware effectively changing its name to B&G Foods, Inc.


(r)  
Existing Subordinated Notes.  The
95⁄8% Senior Subordinated Notes due August 1, 2007 that are to be called
for redemption shall have been called for redemption by the Borrower and the
proceeds necessary therefore shall have been deposited with the trustee with
respect to such 95⁄8% Senior Subordinated Notes.


4.2  
Conditions to Each Extension of
Credit.  The agreement of each Lender to
make any extension of credit requested to be made by it on any date (including,
without limitation, its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:


(a)  
Representations and Warranties. 
Each of the representations and warranties  made by any Loan Party in or pursuant to this Agreement or any
other Loan Document shall be true and correct on and as of such date as if made
on and as of such date (unless stated to relate to an earlier date, in which
case such representations and warranties shall be true and correct as of such
earlier date).


 


48

















 


(b)  
No Default.  No Default or Event
of Default shall have occurred and be continuing on such date or after giving
effect to the making of the extensions of credit requested to be made on such
date.


(c)  
Senior Debt.  A Responsible
Officer of the Borrower shall have certified in writing to the Administrative
Agent that the incurrence of Indebtedness represented by the requested
extension of credit is permitted under the Senior Subordinated Notes Indenture.


Each borrowing by and
issuance of a Letter of Credit on behalf of the Borrower hereunder shall
constitute a representation and warranty by the Borrower as of the date of such
extension of credit that the conditions contained in this Section 4.2 have been
satisfied.


 


SECTION
5.  AFFIRMATIVE COVENANTS


The Borrower hereby agrees
that, so long as the Revolving Credit Commitments remain in effect, any Letter
of Credit remains outstanding or any Loan or other amount is owing to any
Lender or any Agent hereunder, the Borrower shall and shall cause each of its
Subsidiaries to:


5.1   Financial Statements.  Furnish to the Administrative Agent and each Lender:


(a)  
as soon as available, but in any event within 90 days or, after fiscal year end 2005, such earlier
date as required by the SEC, after the end of each fiscal year of the
Borrower, a copy of the audited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such year and the related
audited consolidated statements of income and of cash flows for such year,
setting forth in each case in comparative form the figures as of the end of the
previous year, reported on without a “going concern” or like qualification or
exception, or qualification arising out of the scope of the audit, by KPMG,
L.L.P. or other independent certified public accountants of nationally
recognized standing;


(b)  
as soon as available, but in any event not later than 45 days or, after fiscal
year end 2005, such earlier date as required by the SEC, after the end of each
of the first three quarterly periods of each fiscal year of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and of cash flows for such quarter and the
portion of the fiscal year 


 


49

















 


through the end of such
quarter, setting forth in each case in comparative form the figures as of the
end of and for the corresponding period in the previous year, certified by a
Responsible Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments); and


(c)  
as soon as available, but in any event not later than 45 days after the end of
each month occurring during each fiscal year of the Borrower (other than the
third, sixth, ninth and twelfth such month), the unaudited consolidated balance
sheets of the Borrower and its Subsidiaries as at the end of such month and the
related unaudited consolidated statements of income and of cash flows for such
month and the portion of the fiscal year through the end of such month, setting
forth in each case in comparative form the figures as of the end of and for the
corresponding period in the previous year, certified by a Responsible Officer
as being fairly stated in all material respects (subject to normal year-end
audit adjustments);


all such financial statements
to be complete and correct in all material respects and to be prepared in
reasonable detail and in accordance with GAAP applied consistently throughout
the periods reflected therein and with prior periods (except as approved by
such accountants or officer, as the case may be, and disclosed therein).


5.2   Certificates; Other Information.  Furnish to the Administrative Agent and each
Lender, or, in the case of clause (g), to the relevant Lender:


(a)  
concurrently with the delivery of the financial statements referred to in
Section 5.1(a), a certificate of the independent certified public accountants
reporting on such financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate;


(b)  
concurrently with the delivery of any financial statements pursuant to Section
5.1, (i) a certificate of a Responsible Officer stating that, to the best of
such Responsible Officer’s knowledge, each Loan Party during such period has
observed or performed all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement and the other Loan Documents to
which it is a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate and (ii) in the case of
quarterly or annual financial statements, (x) a Compliance Certificate
containing all information and calculations necessary for determining
compliance by the Borrower and its Subsidiaries with the provisions of this
Agreement referred to therein as of the last day of the fiscal quarter or
fiscal year of the Borrower, as the case may be, and (y) to the extent not
previously disclosed to the Administrative Agent, a listing of any Intellectual
Property acquired by any Loan Party since the date of the most recent list
delivered pursuant to this clause (y) (or, in the case of the first such list
so delivered, since the Closing Date);


(c)  
as soon as available, and in any event no later than 45 days after the end of
each fiscal year of the Borrower, a detailed consolidated budget for the
following fiscal year (including a projected consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of the following fiscal year, and
the related consolidated statements of projected cash flow, projected changes
in financial position and projected income), and, as soon as available,
significant revisions, if any, of such budget and projections with respect to
such fiscal year (collectively, the “Projections”), which Projections
shall in each case be accompanied by a certificate of a Responsible Officer
stating that such Projections are based on reasonable estimates, information
and assumptions and that such Responsible Officer has no reason to believe that
such Projections are incorrect or misleading in any material respect;


 


50

















 


(d)  
within 45 days after the end of each fiscal quarter of the Borrower, a
narrative discussion and analysis of the financial condition and results of
operations of the Borrower 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, as compared to the portion of the Projections covering
such periods and to the comparable periods of the previous year;


(e)  
within five days after the same are sent, copies of all financial statements
and reports that the Borrower sends to the holders of any class of its debt
securities or public equity securities and, within five days after the same are
filed, copies of all financial statements and reports that the Borrower may
make to, or file with, the SEC;


(f)  
as soon as possible and in any event within 5 days of obtaining knowledge
thereof:  (i)  a description of any development, event, or condition that,
individually or in the aggregate with other developments, events or conditions,
could reasonably be expected to result in the payment by the Borrower and its
Subsidiaries, in the aggregate, of a Material Environmental Amount; and
(ii)  any notice that any governmental
authority may deny any application for an Environmental Permit sought by, or
revoke or refuse to renew any Environmental Permit held by, the Borrower which
could reasonably be expected to have a Material Adverse Effect; and


(g)  
promptly, such additional financial and other information as any Lender may
from time to time reasonably request.


5.3  
Payment of Obligations.  Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.


5.4  
Conduct of Business and Maintenance of
Existence, etc. 
(a)  (i)  Preserve, renew and keep in full force and
effect its corporate existence and (ii) take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business, except, in each case, as otherwise permitted by
Section 6.4 and except, in the case of clause (ii) above, to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (b) comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.


5.5  
Maintenance of Property; Insurance.  (a) Keep all Property and systems useful and
necessary in its business in good working order and condition, ordinary wear
and tear excepted and (b) maintain with financially sound and reputable
insurance companies insurance on all its Property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business.


 


51

















 


5.6  
Inspection of Property; Books and
Records; Discussions.  (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) permit
representatives of any Lender upon reasonable notice to visit and inspect any
of its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other condition
of the Borrower and its Subsidiaries with officers and employees of the
Borrower and its Subsidiaries and with its independent certified public
accountants.


5.7  
Notices.  Promptly
give notice to the Administrative Agent and each Lender of:


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


(b)  
any (i) default or event of default under any Contractual Obligation of the
Borrower or any of its Subsidiaries or (ii) litigation, investigation or
proceeding which may exist at any time between the Borrower or any of its
Subsidiaries and any Governmental Authority, that in either case, if not cured
or if adversely determined, as the case may be, could reasonably be expected to
have a Material Adverse Effect;


(c)  
any litigation or proceeding affecting the Borrower or any of its Subsidiaries
in which the amount involved is $2,000,000 or more and not covered by insurance
or in which injunctive or similar relief is sought;


(d)  
the following events, as soon as possible and in any event within 30 days after
the Borrower knows or has reason to know thereof:  (i) the occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of
any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii)
the institution of proceedings or the taking of any other action by the PBGC or
the Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan that in any case under clause (i) or (ii) may
reasonably be expected to result in liability of more than $2,000,000;


(e)  
any amendment or other modification of any of the documents described in
Section 6.9; and


(f)  
any development or event that has had or could reasonably be expected to have a
Material Adverse Effect.


Each notice pursuant to this
Section shall be accompanied by a statement of a Responsible Officer setting
forth details of the occurrence referred to therein and stating what action the
Borrower or the relevant Subsidiary proposes to take with respect thereto.


5.8  
Environmental Laws.  (a)  Comply in all material respects with, and ensure
compliance in all material respects by all tenants and subtenants, if any,
with, all applicable


 


 


 


52

















 


 Environmental
Laws, and obtain and comply in all material respects with and maintain, and
ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws.


(b)   Conduct and
complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required under Environmental Laws and promptly comply
in all material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws, or contest such orders
and directives by appropriate legal means.


5.9   Additional Collateral, etc.  (a)  With respect to any Property acquired after the
Closing Date by the Borrower or any of its Subsidiaries (other than (v) any
real property (or interest therein), (w) any Intellectual Property to the
extent creation of a security interest therein would be contractually
prohibited, (x) any Property described in paragraph (b) of this Section, (y) any
Property subject to a Lien expressly permitted by Section 6.3(g) and (z)
Property acquired by a Foreign Subsidiary) as to which the Administrative
Agent, for the benefit of the Lenders, does not have a perfected Lien, promptly
(i) execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement or such other documents as the
Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in
such Property and (ii) take all actions necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in such Property (subject to Liens permitted by
Section 6.3), including without limitation, the filing of Uniform Commercial
Code financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent.


(b)   With respect
to any new Subsidiary of the Borrower (other than a Foreign Subsidiary) created
or acquired after the Closing Date (which, for the purposes of this paragraph,
shall include any existing Subsidiary that ceases to be a Foreign Subsidiary),
by the Borrower or any of its Subsidiaries, promptly (i) execute and deliver to
the Administrative Agent such amendments to the Guarantee and Collateral
Agreement as the Administrative Agent deems necessary or advisable to grant to
the Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in the Capital Stock of such new Subsidiary that is
owned by the Borrower or any of its Subsidiaries, (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers, in blank, executed and delivered by a duly
authorized officer of the Borrower or such Subsidiary, as the case may be,
(iii) cause such new Subsidiary (A) to become a party to the Guarantee and
Collateral Agreement and (B) to take such actions reasonably necessary or
advisable to grant to the Administrative Agent for the benefit of the Lenders a
perfected first priority security interest in the Collateral described in the
Guarantee and Collateral Agreement with respect to such new Subsidiary (subject
to Liens and other matters permitted by Section 6.3 and excluding real property
and any interests therein, and Intellectual Property to the extent creation of
a security interest therein would be contractually prohibited), including,
without limitation, the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be requested by the Administrative Agent, and
(iv) if reasonably requested by the Administrative Agent, deliver to the


 


 


53

















 


Administrative Agent legal opinions covering matters
consistent with those covered by the opinions delivered by Dechert LLP or the
applicable local counsel, as the case may be, on the Closing Date relating to
the matters described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent.


(c)   With respect
to any new Foreign Subsidiary created or acquired after the Closing Date by the
Borrower or any of its Subsidiaries, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable in order to grant to
the Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in the Capital Stock of such new Subsidiary that is
owned by the Borrower or any of its Subsidiaries (provided that in no
event shall more than 65% of the total outstanding voting Capital Stock of any
such new Subsidiary which is an Excluded Foreign Subsidiary be required to be
so pledged), (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, and take such other action as may be necessary
or, in the opinion of the Administrative Agent, desirable to perfect the Lien
of the Administrative Agent thereon, and (iii) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.


5.10  
Further Assurances.  From time to time execute and deliver, or cause to be executed
and delivered, such additional instruments, certificates or documents, and take
all such actions, as the Administrative Agent may reasonably request, for the
purposes of implementing or effectuating the provisions of this Agreement and
the other Loan Documents, or of more fully perfecting or renewing the rights of
the Administrative Agent and the Lenders with respect to the Collateral (or
with respect to any additions thereto or replacements or proceeds thereof or
with respect to any other property or assets hereafter acquired by the Borrower
or any Subsidiary which may be deemed to be part of the Collateral) pursuant
hereto or thereto.  Upon the exercise by
the Administrative Agent or any Lender of any power, right, privilege or remedy
pursuant to this Agreement or the other Loan Documents which requires any
consent, approval, recording, qualification or authorization of any
Governmental Authority, the Borrower will execute and deliver, or will cause
the execution and delivery of, all applications, certifications, instruments
and other documents and papers that the Administrative Agent or such Lender may
be required to obtain from the Borrower or any of its Subsidiaries for such
governmental consent, approval, recording, qualification or authorization.


SECTION
6.  NEGATIVE COVENANTS


The Borrower hereby agrees
that, so long as the Revolving Credit Commitments remain in effect, any Letter
of Credit remains outstanding or any Loan or other amount is owing to any
Lender or the Agents hereunder, the Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly:


6.1  
Financial Condition Covenants.


 


 


54

















 


(a)   Consolidated
Leverage Ratio.  Permit the
Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal quarter commencing
with the fiscal quarter ending December 31, 2004, to exceed 6.00 to 1.00.


(b)   Consolidated
Senior Leverage Ratio.  Permit the
Consolidated Senior Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal quarter
commencing with the fiscal quarter ending December 31, 2004, to exceed
3.50 to 1.00.


(c)   Consolidated
Interest Coverage Ratio.  Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower ending with any fiscal quarter commencing with the
fiscal quarter ending December 31, 2004, to be less than 1.35 to 1.00.


6.2  
Limitation on Indebtedness.  Create, incur, assume or suffer to exist any
Indebtedness, except:


(a)  
Indebtedness of any Loan Party pursuant to any Loan Document;


(b)  
Indebtedness of the Borrower to any Subsidiary and of any Wholly Owned
Subsidiary Guarantor to the Borrower or any other Subsidiary;


(c)  
Indebtedness (including, without limitation, Capital Lease Obligations) secured
by Liens permitted by Section 6.3(g) in an aggregate principal amount not to
exceed $20,000,000 at any one time outstanding;


(d)  
Indebtedness outstanding on the Closing Date and listed on Schedule 6.2(d) and
any refinancings, refundings, renewals or extensions thereof (without any
increase in the principal amount thereof or any shortening of the maturity of
any principal amount thereof);


(e)  
Guarantee Obligations made in the ordinary course of business by the Borrower
or any of its Subsidiaries of obligations of the Borrower or any Subsidiary
Guarantor;


(f)  
(i)  Indebtedness of the Borrower in
respect of the Senior Notes in an aggregate principal amount not to exceed
$200,000,000, (ii) Guarantee Obligations of any Subsidiary Guarantor in respect
of such Indebtedness and (iii) Indebtedness of the Borrower that refinances the
Senior Notes and Guarantee Obligations of any Subsidiary Guarantor in respect
of such refinancing Indebtedness; provided, that (A) the maturity date
of such refinancing Indebtedness shall be no earlier than six months after the
Revolving Credit Termination Date, (B) the terms of such refinancing
Indebtedness, taken as a whole, shall not be materially less favorable to the
Borrower and the Subsidiary Guarantors than the terms of the Senior Notes and
(C) the principal amount of such refinancing Indebtedness does not exceed the
principal amount of Senior Notes refinanced thereby;


 


 


55

















 


(g)  
(i)  Indebtedness of the Borrower in
respect of the Senior Subordinated Notes in an aggregate principal amount not
to exceed $190,000,000, (ii) Guarantee Obligations of any Subsidiary Guarantor
in respect of such Indebtedness; provided  that, in the case of
any Subsidiary Guarantor, such Guarantee Obligations are subordinated to the
obligations of such Subsidiary Guarantor under the Guarantee and Collateral
Agreement to the same extent as the obligations of the Borrower in respect of
the Senior Subordinated Notes are subordinated to the Obligations and (iii)
Indebtedness of the Borrower that refinances Senior Subordinated Notes and
Guarantee Obligations of any Subsidiary Guarantor in respect of such
refinancing Indebtedness; provided, that (A) such refinancing
Indebtedness and Guarantee Obligations shall be subordinated to the obligations
of the Borrower and the Subsidiary Guarantors under the Loan Documents to the
same extent as the obligations of the Borrower and the Subsidiary Guarantors in
respect of the Senior Subordinated Notes are subordinated, (B) the maturity
date of such refinancing Indebtedness shall be no earlier than six months after
the Revolving Credit Termination Date, (C) the terms of such refinancing
Indebtedness, taken as a whole, shall not be materially less favorable to the
Borrower and the Subsidiary Guarantors than the terms of the Senior
Subordinated Notes and (D) the principal amount of such refinancing
Indebtedness does not exceed the principal amount of the Senior Subordinated
Notes refinanced thereby;


(h)  
Indebtedness of the Borrower or its Subsidiaries incurred to finance the
acquisition (including, without limitation, by way of merger) of Capital Stock
of any Person engaged in, or assets used or useful in, a business permitted
pursuant to Section 6.14; provided that the Fixed Charge Coverage Ratio
for the Borrower’s most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such Indebtedness is incurred would have been at least 1.75:1.00,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if such Indebtedness had been incurred at the beginning
of such four-quarter period;


(i)  
Indebtedness secured by Liens permitted by Section 6.3(l); provided,
that the aggregate principal amount of such Indebtedness, plus the aggregate
principal amount of Indebtedness permitted by Section 6.2(c), shall not at any
time exceed $20,000,000;


(j)  
Indebtedness of the Borrower or its Subsidiaries arising from the honoring by a
bank or other financing institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds in the ordinary course of
business;


(k)  
Indebtedness of the Borrower or its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar
obligations, in each case, incurred in connection with the disposition of any
business, assets or a Subsidiary, other than the guaranties of Indebtedness
incurred by any Person acquiring all or any portion of such business, assets or
Subsidiary for the purpose of financing such acquisition; provided, however,
that: (i) such Indebtedness is not reflected on the balance sheet of the
Borrower or any of its Subsidiaries (contingent obligations referred to in a
footnote to financing statements and not otherwise reflected on the balance
sheet will not be deemed to be reflected on such balance sheet for purposes of
this clause (i)) and 


 


56

















 


(ii) the
maximum assumable liability in respect of all such Indebtedness shall at no
time exceed the gross proceeds including non-cash proceeds (the Fair Market
Value of such non-cash proceeds being measured at the time received and without
giving effect to any subsequent changes in value) actually received by the
Borrower and its Subsidiaries in connection with such disposition;


(l)  
subordinated Indebtedness of the Borrower or any of its Subsidiaries in an
aggregate principal amount at any time outstanding not to exceed $2,000,000
issued to directors, officers or employees of the Borrower or any of its
Subsidiaries in connection with the redemption or purchase of Capital Stock
that is not secured by any assets of the Borrower or any of its Subsidiaries,
does not require cash payments prior to the stated maturity of the Senior Notes
and contains subordination terms reasonably acceptable to the Administrative
Agent;


(m)  
Indebtedness of the Borrower in the form of Senior Subordinated Notes in
connection with the issuance of EIS or, if there are no EIS outstanding on the
date of such issuance, the issuance of Borrower’s Class A common stock, (and in
each case, the incurrence of the related guarantees in respect of such Senior
Subordinated Notes by the Guarantors), provided  that (i) no
Default or Event of Default has occurred and is continuing at the time of such
issuance or would be caused thereby, (ii) the ratio of the aggregate principal
amount of such Senior Subordinated Notes over the number of additional shares
of the Borrower’s Class A common stock issued contemporaneously therewith shall
not exceed (A) the equivalent ratio with respect to the EIS outstanding
immediately prior to such issuance, or (B) if there are no EIS outstanding
immediately prior to such issuance, the equivalent ratio with respect to the
EIS outstanding on the Closing Date, and (iii) the Borrower uses the proceeds
of such issuance solely to repurchase shares of Class B common stock issued on
or before the Closing Date from holders thereof in accordance with the
Securities Holders Agreement; and


(n)  
other unsecured Indebtedness, not included in clauses (a) through (m) above,
not to exceed $20,000,000 in an aggregate principal amount (or accreted value,
as applicable) at any time outstanding.


6.3   Limitation on Liens.  Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, except for:


(a)  
Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded; provided that any reserve
or other appropriate provision as is required in conformity with GAAP has been
made therefor;


(b)  
Liens imposed by law, such as carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s, landlord’s or other like Liens arising in the
ordinary course of business which are not overdue for a period of more than 30
days or that are being contested in good faith by appropriate proceedings;


 


57

















 


(c)  
Liens (other than any Lien imposed by ERISA or any rule or regulation
promulgated thereunder) incurred or deposits made in the ordinary course of
business in connection with workers’ compensation, unemployment insurance, and
other types of social security;


(d)  
Liens to secure the performance of statutory obligations, surety or appeal
bonds, performance bonds, deposits to secure the performance of bids, trade
contracts, government contracts, warranty requirements, leases or licenses or
other obligations of a like nature or incurred in the ordinary course of
business (including, without limitation, landlord Liens on leased real
property); survey exceptions, easements or reservations of, or rights of others
for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions as to the use
of real property that were not incurred in connection with Indebtedness and
that do not in the aggregate materially adversely affect the value of said
properties or materially impair their use in the operation of the business of
such Person;


(e)  
Liens in existence on the date hereof listed on Schedule 6.3(f), securing
Indebtedness permitted by Section 6.2(d), provided that no such Lien is
spread to cover any additional Property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;


(f)  
Liens securing Indebtedness of the Borrower or any other Subsidiary incurred
pursuant to Section 6.2(c) to finance the acquisition of fixed or capital
assets, provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets, (ii) such
Liens do not at any time encumber any Property other than the Property financed
by such Indebtedness and (iii) the amount of Indebtedness secured thereby is
not increased;


(g)  
Liens created pursuant to the Security Documents;


(h)  
any interest or title of a lessor under any lease entered into by the Borrower
or any other Subsidiary in the ordinary course of its business and covering
only the assets so leased;


(i)  
judgment liens which would not create any Event of Default;


(j)  
licenses of Intellectual Property in the ordinary course of business;


(k)  
liens on fixed assets existing at the time such fixed assets are acquired in
connection with a Permitted Acquisition and not created in contemplation
thereof;


(l)  
deposits in an aggregate amount not to exceed $1,000,000 made in the ordinary
course of business to secure liability to insurance carriers;


(m)  
Liens in favor of customs and revenue authorities to secure payment of customs
duties in connection with the importation of goods in the ordinary course of
business and other similar Liens arising in the ordinary course of business;


 


58

















 


(n)  
Liens upon specific items of inventory or other goods and proceeds of any
Person securing such Person’s obligations in respect of bankers’ acceptances
issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or other goods;


(o)  
leases or subleases granted to third Persons not interfering with the ordinary
course of business of the Borrower or any of its Subsidiaries;


(p)  
deposits, in an aggregate amount not to exceed $250,000 at any one time
outstanding, made in the ordinary course of business to secure liability to the
Borrower’s insurance carriers;


(q)  
Liens on assets of a Subsidiary of the Borrower that is not a Guarantor
securing Indebtedness of that Subsidiary; provided that such
Indebtedness was permitted to be incurred by Section 6.2;


(r)  
Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business;


(s)  
Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant
to Section 6.2(h) to finance the acquisition (including, without limitation, by
way of merger) of Capital Stock of any Person; provided that (i) such Liens
shall be created substantially simultaneously with the acquisition of such
Capital Stock, (ii) such Liens do not at any time encumber any Property other
than the Capital Stock of such acquired Person and (iii) the amount of
Indebtedness secured thereby does not exceed $30,000,000; and


(t)  
Liens not otherwise permitted by this Section 6.3, so long as neither (i) the
aggregate outstanding principal amount of the obligations secured thereby nor
(ii) the aggregate Fair Market Value (determined as of the date such Lien is
incurred) of the assets subject thereto exceeds $10,000,000 at any one time.


6.4  
Limitation on Fundamental Changes.  Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
Property or business, except that:


(a)  
any Subsidiary may be merged or consolidated with or into the Borrower (provided
that the Borrower shall be the continuing or surviving corporation) or with or
into any Subsidiary Guarantor (provided that such Subsidiary Guarantor
shall be the continuing or surviving corporation); and


(b)  
any Subsidiary may Dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any Subsidiary Guarantor.


6.5  
Limitation on Disposition of Property.  Dispose of any of its Property (including,
without limitation, receivables and leasehold interests), whether now owned or 


 


59

















 


hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary’s Capital Stock to any Person,
except:


(a)  
the Disposition of obsolete or worn out property in the ordinary course of
business;


(b)  
the sale of inventory in the ordinary course of business;


(c)  
Dispositions permitted by Section 6.4(b);


(d)  
the sale or issuance of any Subsidiary’s Capital Stock to the Borrower or any
Subsidiary Guarantor;


(e)  
the Disposition of other assets in any fiscal year of the Borrower that
contributed, in the aggregate, not more than 20% of Consolidated EBITDA for the
prior fiscal year; provided that (i) in the case of each such
Disposition, the Borrower shall be in pro  forma compliance with
the financial covenants set forth in Section 6.1 after giving effect to such
Disposition (determined on the assumption that such Disposition and the
repayment of any Indebtedness resulting therefrom had occurred on the first day
of the relevant period measured by such covenants) and (ii) in the case of any
such Disposition yielding net cash proceeds of $1,000,000 or more, the
Administrative Agent shall have received a certificate of a Responsible Officer
to the effect set forth in the foregoing clause (i) and showing calculations
thereof; and


(f)  
any Disposition constituting a Recovery Event.


6.6   Limitation on Restricted Payments.  Declare or pay any dividend (other than
dividends payable solely in common stock of the Person making such dividend)
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any Capital Stock of the Borrower or any Subsidiary,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Borrower or any Subsidiary, or enter into any derivatives or
other transaction with any financial institution, commodities or stock exchange
or clearinghouse (a “Derivatives Counterparty”) obligating the Borrower
or any Subsidiary to make payments to such Derivatives Counterparty as a result
of any change in market value of any such Capital Stock (collectively, “Restricted
Payments”), except: (a) any Subsidiary may make Restricted Payments to the
Borrower or any Subsidiary Guarantor; and (b) so long as no Default or Event of
Default has occurred and is continuing or would result therefrom, the Borrower
may make Restricted Payments if at the time such Restricted Payment is made,
such Restricted Payment is permitted to be made under the Senior Notes
Indenture as in effect on the date hereof; provided that the Borrower may make
the Restricted Payment set forth in subsections 4.07(b)(1), 4.07(b)(4),
4.07(b)(9), 4.07(b)(10) and


4.07(b)(13) of the Senior Subordinated Note
Indenture regardless of whether a Default or Event of Default exists. .


 


6.7   Limitation on
Capital Expenditures.  Make or
commit to make any Capital Expenditure, except (a) Capital Expenditures of the
Borrower and its Subsidiaries in the ordinary


 


60

















 


course
of business not exceeding, $11,000,000, for any fiscal year; provided,
that (i) any such amount, if not so expended in the fiscal year for which it is
permitted, may be carried over for expenditure in the next succeeding fiscal
year and (ii) Capital Expenditures made pursuant to this clause during any
fiscal year shall be deemed made, first, in respect of amounts permitted
for such fiscal year as provided preceding this proviso above and second,
in respect of amounts carried over from the prior fiscal year pursuant to
subclause (i) above and (b) Capital Expenditures made with the proceeds of
settlement or payment in respect of any property or casualty insurance claim,
or any condemnation proceeding relating to any asset of the Borrower or its
subsidiaries.


6.8   Limitation on Investments.  Make after the Closing Date any advance,
loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any Capital Stock, bonds, notes, debentures or
other debt securities of, or any assets constituting an ongoing business from,
or make any other investment in, any other Person (all of the foregoing, “Investments”),
except:


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


(b)  
investments in Cash Equivalents;


(c)  
Investments arising in connection with the incurrence and lending of
Indebtedness permitted by Sections 6.2(b) and (e);


(d)  
loans and advances to employees of the Borrower or any Subsidiaries of the
Borrower in the ordinary course of business (including, without limitation, for
travel, entertainment and relocation expenses) in an aggregate amount for  the Borrower and its Subsidiaries not to
exceed $2,000,000 at any one time outstanding;


(e)  
Permitted Acquisitions;


(f)  
Investments (other than those relating to the incurrence of Indebtedness
permitted by Section 6.8(c)) by the Borrower or any of its Subsidiaries in the
Borrower or any Person that, prior to such investment, is a Subsidiary
Guarantor;


(g)  
any Investments received (i) in compromise or resolution of (x) obligations of
trade creditors or customers that were incurred in the ordinary course of
business of the Borrower or any of its Subsidiaries, including pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency
of any trade creditor or customer or (y) litigation, arbitration or other
disputes with Persons who are not Affiliates; or (ii) in satisfaction of
judgments;


(h)  
loans by the Borrower in an aggregate principal amount not exceeding $3,000,000
to employees of the Borrower or its Subsidiaries to finance the sale of the
Borrower’s Capital Stock by the Borrower to such employees;


(i)  
receivables owing to the Borrower or any Subsidiary if created or acquired in
the ordinary course of business and payable or dischargeable in accordance with
customary trade terms;


 


61

















 


(j)  
any Investment in any Person to the extent such Investment consists of prepaid
expenses, negotiable instruments held for collection and lease, utility and
workers’ compensation, performance and other similar deposits made in the
ordinary course of business by the Borrower of any of its Subsidiaries;


(k)  
Investments obtained as consideration for a Disposition of property permitted
under Section 6.5 in an aggregate amount not to exceed 25% of the total
aggregate consideration received from all Dispositions of property permitted
under Section 6.5 during the term hereof;


(l)    Investments consisting of Specified Hedging
Obligations; and


(m)  
other Investments in any Person having an aggregate Fair Market Value (measured
on the date each such Investment was made and without giving effect to
subsequent changes in value), when taken together with all other Investments
made pursuant to this clause (m) that are at the time outstanding, not to
exceed $10,000,000; provided that if an Investment made pursuant to this
clause (m) is made in any Person that is not a Subsidiary at the date of the
making of such Investment and such Person becomes a Subsidiary after such date,
such Investment will thereafter be deemed to have been made pursuant to clause
(f) above and shall cease to have been made pursuant to this clause (m).


6.9  
Limitation on Optional Payments and
Modifications of Debt Instruments, etc. 
(a)  Except as permitted by Section 6.2(g), make or offer to
make any optional or voluntary payment, prepayment, repurchase or redemption
of, or otherwise voluntarily or optionally defease, the Senior Subordinated
Notes or any Indebtedness that refinances the Senior Subordinated Notes, or
segregate funds for any such payment, prepayment, repurchase, redemption or
defeasance, or enter into any derivative or other transaction with any
Derivatives Counterparty obligating the Borrower or any Subsidiary to make
payments to such Derivatives Counterparty as a result of any change in market
value of the Senior Subordinated Notes or any Indebtedness that refinances the
Senior Subordinated Notes, (b) amend, modify or otherwise change, or consent or
agree to any amendment, modification, waiver or other change to, any of the
terms of the Senior Subordinated Notes or the Senior Subordinated Note
Indenture or the indenture or instruments governing any Indebtedness that
refinances the Senior Subordinated Notes (other than any such amendment,
modification, waiver or other change which (i) would extend the maturity or
reduce the amount of any payment of principal thereof, reduce the rate or
extend the date for payment of interest thereon or relax any covenant or other
restriction applicable to the Borrower or any of its Subsidiaries and (ii) does
not involve the payment of a consent fee), (c) designate any Indebtedness
(other than the Obligations and Indebtedness under the Senior Note Indenture)
as “Designated Senior Indebtedness” for the purposes of the Senior Subordinated
Note Indenture or the indenture or instruments governing any Indebtedness that
refinances the Senior Subordinated Notes or (d) amend its certificate of
incorporation in any manner materially adverse to the Lenders.


6.10  
Limitation on Transactions with
Affiliates.  Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate 


 


62

















 


(other
than the Borrower or any Subsidiary Guarantor) unless such transaction is
(a) otherwise permitted under this Agreement, (b) in the ordinary course
of business of the Borrower or such Subsidiary, as the case may be, and
(c) upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary, as the case may be, than it would obtain in a comparable arm’s
length transaction with a Person that is not an Affiliate.  Notwithstanding the foregoing (i) so long as
no Default or Event of Default shall be in existence, the Borrower may pay
transaction fees to the Sponsor or any affiliates thereof pursuant to the
Transactions Services Agreement in connection with Permitted Acquisitions,
divestitures and financings made by a Loan Party in an amount not to exceed 1%
of the total transaction value of such Permitted Acquisitions, divestitures and
financings, as applicable, and (ii) the Borrower and its Subsidiaries may enter
into the transactions and make the payments set forth on Schedule 6.10.


6.11  
Limitation on Sales and Leasebacks.  Enter into any sale and leaseback
transaction; provided that the Borrower or any Subsidiary may enter into
a sale and leaseback transaction if:


(a)    the Borrower or such Subsidiary, as
applicable, could have (i) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction under Section
6.2 and (ii) incurred a Lien to secure such Indebtedness pursuant to Section
6.3;


(b)  
the gross cash proceeds of that sale and leaseback transaction are at least
equal to the Fair Market Value of the property that is the subject of that sale
and leaseback transaction; and


(c)  
the transfer of assets in that sale and leaseback transaction is permitted by
Section 6.5.


6.12  
Limitation on Changes in Fiscal
Periods.  Permit the fiscal year of
the Borrower to end on a day other than the Saturday nearest to December 31 or
change the Borrower’s method of determining fiscal quarters.


6.13  
Limitation on Negative Pledge Clauses.  Enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of the Borrower or
any of its Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its Property or revenues, whether now owned or hereafter acquired,
to secure the Obligations or, in the case of any guarantor, its obligations
under the Guarantee and Collateral Agreement, other than (a) this Agreement and
the other Loan Documents, (b) any agreements governing any purchase money Liens
or Capital Lease Obligations otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the assets financed
thereby), (c) customary non-assignment provisions in licenses or sublicenses by
the Borrower and its Subsidiaries in the ordinary course of business (in which
case such prohibition or limitation shall only be effective against the
Intellectual Property subject thereto), (d) customary provisions in joint
venture agreements and similar agreements that restrict transfers of assets of,
or equity interests in, such joint venture, (e) agreements governing
Indebtedness permitted by Sections 6.2(h) and (i) (in which case such
prohibition or limitation shall be effective only against the property acquired
thereby) and (f) agreements entered into by a Subsidiary that is not a
Guarantor governing Liens 


 


63

















 


permitted by Section 6.3(r) or the Indebtedness
secured thereby (in which case such prohibition or limitation shall only be
effective against the assets of such Subsidiary subject to such Lien).


6.14   Limitation on Restrictions on
Subsidiary Distributions.  Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay or subordinate
any Indebtedness owed to, the Borrower or any other Subsidiary, (b) make
Investments in the Borrower or any other Subsidiary or (c) transfer any of
its assets to the Borrower or any other Subsidiary, except for such
encumbrances or restrictions existing under or by reason of (i) any
restrictions existing under the Loan Documents, (ii) any restrictions existing
under the Senior Subordinated Note Indenture and any agreements governing
Indebtedness permitted by Sections 6.2(g), to the extent such restrictions are
no more restrictive than those in the Senior Subordinated Note Indenture, (iii)
any restrictions existing under the Senior Note Indenture and any agreements
governing Indebtedness permitted by Section 6.2(f), to the extent such
restrictions are no more restrictive than those in the Senior Note Indenture,
(iv) any restrictions with respect to a Subsidiary imposed pursuant to an
agreement that has been entered into in connection with the Disposition of all
or substantially all of the Capital Stock or assets of such Subsidiary, (v)
customary net worth provisions contained in real property leases entered into
in by any Loan Party so long as such net worth provisions would not reasonably
be expected to impair materially the ability of the Loan Parties to meet their
ongoing obligations under this Agreement or any of the other Loan Documents,
and (vi) with respect to clause (c) only, (i) customary non-assignment
provisions in licenses or sublicenses by the Borrower and its Subsidiaries in
the ordinary course of business (in which case such prohibition or limitation
shall only be effective against the Intellectual Property subject thereto),
(ii) customary provisions in joint venture agreements and similar agreements
that restrict transfers of assets of, or equity interests in, such joint
venture, (iii) agreements governing Indebtedness permitted by Sections 6.2(h)
and (i) (in which case such prohibition or limitation shall be effective only
against the property acquired thereby), (iv) agreements entered into by a
Subsidiary that is not a Guarantor governing Liens permitted by Section 6.3(r)
or the Indebtedness secured thereby (in which case such prohibition or
limitation shall only be effective against the assets of such Subsidiary
subject to such Lien) and (v) any agreements governing any purchase money Liens
or Capital Lease Obligations otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the assets financed
thereby).


 


6.15   Limitation on Lines of Business.  Enter into any business, either directly or
through any Subsidiary, except for those businesses in which the Borrower and
its Subsidiaries are engaged on the date of this Agreement or that are
reasonably related thereto.


SECTION
7.  EVENTS OF DEFAULT


If any of the following
events shall occur and be continuing:


(a)  
The Borrower shall fail to pay any principal of any Loan or Reimbursement
Obligation when due in accordance with the terms hereof; or the Borrower shall
fail to pay any interest on any Loan or Reimbursement Obligation, or any other
amount payable


 


64

















 


 hereunder or under any other Loan Document, within five days after
any such interest or other amount becomes due in accordance with the terms
hereof; or


(b)  
Any representation or warranty made or deemed made by any Loan Party herein or
in any other Loan Document or that is contained in any certificate, document or
financial or other written statement furnished by it at any time under or in
connection with this Agreement or any other Loan Document shall prove to have
been inaccurate in any material respect on or as of the date made or deemed
made or furnished; or


(c)  
Any Loan Party shall default in the observance or performance of any agreement
contained in clause (i) or (ii) of Section 5.4(a) (with respect to the Borrower
only), Section 5.7(a) or Section 6, or Section 5.6 of the Guarantee and
Collateral Agreement; or


(d)  
Any Loan Party shall default in the observance or performance of any other
agreement contained in this Agreement or any other Loan Document (other than as
provided in paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days; or


(e)  
The Borrower or any of its Subsidiaries shall (i) default in making any payment
of any principal of any Indebtedness (including, without limitation, any
Guarantee Obligation, but excluding the Loans and Reimbursement Obligations) on
the scheduled or original due date with respect thereto; or (ii) default
in making any payment of any interest on any such Indebtedness beyond the
period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit
the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf
of such holder or beneficiary) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become payable; provided,
that a default, event or condition described in clause (i), (ii) or (iii) of
this paragraph (e) shall not at any time constitute an Event of Default unless,
at such time, one or more defaults, events or conditions of the type described
in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $10,000,000; or


(f)  
(i) The Borrower or any of its Subsidiaries shall commence any case, proceeding
or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or
(B) seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or
the Borrower or any


 


65

















 


of its Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period
of 60 days; or (iii) there shall be commenced against the Borrower or any of
its Subsidiaries any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any
such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Borrower or
any of its Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or


(g)  
(i) Any Person shall engage in any “prohibited transaction” (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any “accumulated funding deficiency” (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in
favor of the PBGC or a Plan shall arise on the assets of the Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed (or a trustee
shall be appointed) to administer, or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan
or (vi) any other similar event or condition shall occur or exist with respect
to a Plan other than in the ordinary course of business; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could, in the sole judgment of the
Required Lenders, reasonably be expected to have a Material Adverse Effect; or


(h)  
One or more judgments or decrees shall be entered against the Borrower or any
of its Subsidiaries involving for the Borrower and its Subsidiaries taken as a
whole a liability (not paid or fully covered by insurance as to which the
relevant insurance company has acknowledged coverage) of $10,000,000 or more,
and all such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry thereof; or


(i)  
Any of the Security Documents shall cease, for any reason, to be in full force
and effect, or any Loan Party or any Affiliate of any Loan Party shall so
assert, or any Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created
thereby; or


 


66

















 


(j)  
The guarantee contained in Section 2 of the Guarantee and Collateral Agreement
shall cease, for any reason, to be in full force and effect or any Loan Party
or any Affiliate of any Loan Party shall so assert; or


(k)  
(i) a “Change of Control” shall occur under the Senior Note Indenture or the
Senior Subordinated Note Indenture (i) or (ii) a Specified Change of Control
shall occur; or


(l)  
The Senior Subordinated Notes or the guarantees thereof shall cease, for any
reason, to be validly subordinated to the Obligations or the obligations of the
Subsidiary Guarantors under the Guarantee and Collateral Agreement, as the case
may be, as provided in the Senior Subordinated Note Indenture, or any Loan
Party, any Affiliate of any Loan Party, the trustee in respect of the Senior
Subordinated Notes or the holders of at least 25% in aggregate principal amount
of the Senior Subordinated Notes shall so assert;


then, and in any such event,
(A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Borrower, automatically
the Revolving Credit Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken:  (i) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Revolving Credit Commitments to be terminated forthwith, whereupon
the Revolving Credit Commitments shall immediately terminate; and (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) to be due and payable forthwith,
whereupon the same shall immediately become due and payable.  With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of
an acceleration pursuant to this paragraph, the Borrower shall at such time
deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit.  Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon,
if any, shall be applied to repay other obligations of the Borrower hereunder
and under the other Loan Documents. 
After all such Letters of Credit shall have expired or been fully drawn
upon, all Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrower hereunder and under the other Loan Documents shall
have been paid in full, the balance, if any, in such cash collateral account
shall be returned to the Borrower (or such other Person as may be lawfully
entitled thereto).


 


67

















 


SECTION
8.  THE ADMINISTRATIVE
AGENT; THE ARRANGER; THE OTHER AGENTS


 


8.1  
Appointment. 
Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the Administrative Agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental thereto.   Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall have no
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.


8.2  
Delegation of Duties.  The Administrative Agent may execute any of its duties under this
Agreement and the other Loan Documents by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties.  The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.


8.3  
Exculpatory Provisions.  Neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from its or such Person’s own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party a party thereto to
perform its obligations hereunder or thereunder.  The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.


8.4  
Reliance by Administrative Agent.  The Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Loan Parties), independent
accountants and other experts selected by the Administrative Agent.  The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed
with the Administrative Agent.  


 


68

















 


The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense (other than any liability or
expense arising from its gross negligence or willful misconduct) that may be
incurred by it by reason of taking or continuing to take any such action.  The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or, if so specified by this Agreement, all Lenders), and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans and L/C
Obligations.


8.5  
Notice of Default. 
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default”.  In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give notice thereof to the Lenders.  The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.


8.6  
Non-Reliance on
Administrative Agent and Other Lenders. 
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates have made any representations or warranties to it and that no act
by the Administrative Agent hereafter taken, including any review of the
affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Lender.  Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates and
made its own decision to make its Revolving Credit Loans hereunder and enter
into this Agreement.  Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and
their affiliates.  Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Administrative Agent shall have no
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Loan Party or any affiliate
of a Loan Party that may come into the possession of the


 


69

















 


Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.


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


8.8  
Administrative Agent in Its
Individual Capacity.  The Person
serving as the Administrative Agent and its affiliates may make loans to,
accept deposits from and generally engage in any kind of business with any Loan
Party as though the Person serving as the Administrative Agent were not the
Administrative Agent hereunder.  With
respect to its Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, the Person serving as the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not the Administrative Agent, and the terms “Lender” and “Lenders”
shall include the Person serving as the Administrative Agent in its individual
capacity.


8.9   Successor Administrative Agent.  The Administrative Agent may resign as
Administrative Agent upon 10 days’ written notice to the Lenders and the
Borrower.  If the Administrative Agent
shall resign as Administrative Agent under this Agreement and the other Loan
Documents, then the Required Lenders shall appoint from among the Lenders a
successor Administrative Agent for the Lenders, which successor Administrative
Agent shall (unless an Event of Default under Section 7(a) or Section 7(f) with
respect to the Borrower shall have occurred and be continuing) be subject to
approval by the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor Administrative Agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term “Administrative
Agent” shall mean such successor Administrative Agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the


 


70

















 


Loans.  If no
successor Administrative Agent has accepted appointment as Administrative Agent
by the date that is 10 days following a retiring Administrative Agent’s notice
of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such
time, if any, as the Required Lenders appoint a successor Administrative Agent
as provided for above.  After any
retiring Administrative Agent’s resignation as Administrative Agent, the
provisions of this Section 8 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.


8.10  
Authorization to Release Liens;
Other Actions Relating to Security Documents.  The Administrative Agent is hereby irrevocably authorized by each
of the Lenders to release any Lien covering any Property of the Borrower or any
of its Subsidiaries that is the subject of a Disposition which is permitted by
this Agreement or which has been consented to in accordance with Section 9.1 of
this Agreement.


8.11  
The Arranger; the Other Agents.  None of the Arranger or the Other Agents, in
their respective capacities as such, shall have any duties or responsibilities,
or incur any liability, under this Agreement and the other Loan Documents.


SECTION 9.  MISCELLANEOUS


9.1  
Amendments and Waivers.  Neither this Agreement or any other Loan
Document, nor any terms hereof or thereof, may be amended, supplemented or
modified except in accordance with the provisions of this Section 9.1.  Subject to the provisions of the immediately
following sentence, the Required Lenders and each Loan Party party to the
relevant Loan Document may, or (with the written consent of the Required
Lenders) the Administrative Agent and each Loan Party party to the relevant
Loan Document may, from time to time, (a) enter into written amendments,
supplements or modifications hereto and to the other Loan Documents (including
amendments and restatements hereof or thereof) for the purpose of adding any
provisions to this Agreement or the other Loan Documents or changing in any
manner the rights of the Lenders or of the Loan Parties hereunder or thereunder
or (b) waive, on such terms and conditions as may be specified in the instrument
of waiver, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or
modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan or Reimbursement Obligation, or reduce
the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or modify the definition of Interest Period
to permit an Interest Period greater than six months in duration, or increase
the amount or extend the expiration date of the Revolving Credit Commitment of
any Lender, in each case without the consent of each Lender directly affected
thereby; (ii) amend, modify or waive any provision of this Section or reduce
any percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, release all or substantially
all of the Collateral or release all or substantially all of the Guarantors
from their guarantee obligations under the Guarantee and Collateral Agreement,
in each case without the consent of all Lenders; (iii) amend, modify or waive
any provision of Section 8 without the consent of the 


 


71

















 


Administrative
Agent; (iv) amend, modify or waive any provision of Section 2.12 without the
consent of each Lender directly affected thereby; (v) amend, modify, or
waive any provision of Sections 2.19 through 2.26 without the consent of the
Issuing Lenders, or of Section 2.1(b) or Section 2.2(b)-(f) without the consent
of the Swing Line Lender or (vi) extend the expiration date of any Letter of
Credit to a date later than the fifth Business Day prior to the Revolving
Credit Termination Date without the consent of each Lender (including the
Issuing Lender) unless such Letter of Credit has been cash collateralized or
backstopped in a manner reasonably acceptable to the relevant Issuing
Lender.  Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans and L/C
Obligations.  In the case of any waiver,
the Loan Parties, the Lenders and the Administrative Agent shall be restored to
their former position and rights hereunder and under the other Loan Documents,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.  Any such waiver, amendment, supplement or
modification shall be effected by a written instrument signed by the parties
required to sign pursuant to the foregoing provisions of this Section; provided,
that delivery of an executed signature page of any such instrument by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof.  Notwithstanding the foregoing,
this Agreement may be amended (or amended and restated) with the written
consent of the Required Lenders, the Administrative Agent and each Loan Party
to each relevant Loan Document (x) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time
to time outstanding thereunder and the accrued interest and fees in respect
thereof (collectively, the “Additional Extensions of Credit”) to share
ratably in the benefits of this Agreement and the other Loan Documents with the
Revolving Extensions of Credit and the accrued interest and fees in respect
thereof and (y) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders; provided, that  no Lender shall be required to make or
participate in such Additional Extensions of Credit without the consent of such
Lender in its sole discretion.


In addition to the
foregoing, and notwithstanding the first paragraph of this Section 10.1, this
Agreement and any other Loan Document may be amended (or amended and restated)
with the consent of the Borrower, the Administrative Agent and the Lenders
providing commitments therefor, but without the consent of the other Lenders,
to increase the Revolving Credit Commitments (the “New Revolving Credit
Commitments”) in an aggregate principal amount of up to $[________]; so
long as (i) no Default or Event of Default has occurred and is continuing
and (ii) the Borrower is in pro forma compliance with the financial covenants
set forth in Section 6.1 with respect to the most recently completed fiscal
quarter for which financial statements are then available.  No Lenders will be required to commit to
provide any portion of the New Revolving Credit Commitments.  The proceeds of the New Revolving Credit
Commitments will be used for Permitted Acquisitions or for general corporate
purposes.  On the date of effectiveness
of any such New Revolving Credit Commitments, each of the existing Lenders
shall assign to each of the lenders providing New Revolving Credit Commitments
(the “New Lenders”) and each of the New Lenders shall purchase from each
of the Lenders, at the principal amount therefor (together with accrued
interest), such interests in the Revolving Credit Loans outstanding on such
effective date as shall be necessary in order that, after giving effect to all
such assignments and purchases, such Revolving Credit Loans will be held by
existing


 


72

















 


Lenders and New Lenders
ratably in accordance with their Revolving Credit Commitments after giving
effect to the addition of the New Revolving Credit Commitments and each New
Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit
Commitment and each Revolving Credit Loan made thereunder (a “New Revolving
Credit Loan”) shall be deemed, for all purposes to be a Revolving Credit
Loan and each New Lender shall become a Lender with respect to the New
Revolving Loan Commitment and all matters relating thereto.


 


9.2  
Notices.  All notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered, or
three Business Days after being deposited in the mail, postage prepaid, or, in
the case of telecopy notice, when received, addressed (a) in the case of the
Borrower and the Administrative Agent, as follows and (b) in the case of the
Lenders, as set forth in an administrative questionnaire delivered to the
Administrative Agent or on Schedule I to the Lender Addendum to which such
Lender is a party or, in the case of a Lender which becomes a party to this
Agreement pursuant to an Assignment and Acceptance, in such Assignment and
Acceptance or (c) in the case of any party, to such other address as such party
may hereafter notify to the other parties hereto:


	
  The Borrower:

  	
   

  	
  B&G Foods, Inc.

  Four Gatehall Drive, Suite
  110

  Parsippany, NJ  07054 

  Attention:  Chief Financial Officer

  Telecopy: 973-630-6550

   Telephone: 973-401-6500

  
	
   

  	
   

  	
   

  
	
  The Administrative Agent:

  	
   

  	
  Lehman Commercial Paper
  Inc.

  745 Seventh Avenue

  New York, New York 10019

  Attention:  Craig Malloy

  Telecopy:  (646) 758-4617

  Telephone:  (212) 526-7150

  
	
   

  	
   

  	
   

  
	
  Issuing Lender:

  	
   

  	
  As notified by such
  Issuing Lender to the Administrative Agent and the Borrower

  



 


provided that any
notice, request or demand to or upon the Administrative Agent or any Lender
shall not be effective until received.


9.3  
No Waiver; Cumulative Remedies.  No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.


 


73

















 


9.4  
Survival of Representations and
Warranties.  All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of
the extensions of credit hereunder.


9.5  
Payment of Expenses.  The Borrower agrees (a) to pay or reimburse the Administrative
Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the syndication of the Revolving Credit Commitments
through the Closing Date (other than fees payable to syndicate members) and
with the development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements and other charges of
counsel to the Administrative Agent and the charges of Intralinks, (b) to pay
or reimburse each Lender including, without limitation, the Issuing Lender and
the Swing Line Lender and the Administrative Agent for all their costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and disbursements and other charges of in-house counsel)
to each Lender and of counsel to the Administrative Agent, (c) to pay, and
indemnify and hold harmless each Lender and the Administrative Agent from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (d) to pay, and indemnify and hold
harmless each Lender, each Agent, their respective affiliates, and their
respective officers, directors, trustees, employees, advisors, agents and
controlling persons (each, an “Indemnitee”) from and against, any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance
and administration of this Agreement, the other Loan Documents and any such
other documents, including, without limitation, any of the foregoing relating
to the use of proceeds of the Loans or the use of the Letters of Credit or the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower, any of its Subsidiaries or any of
the Properties and the fees and disbursements and other charges of legal
counsel in connection with claims, actions or proceedings by any Indemnitee
against the Borrower hereunder (all the foregoing in this clause (d),
collectively, the “Indemnified Liabilities”), provided, that the
Borrower shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such
Indemnitee.  No Indemnitee, in the
absence of the gross negligence or willful misconduct of such Indemnitee, shall
be liable for any damages arising from the use by unauthorized persons of
information or other materials sent through electronic, telecommunications or
other information transmission systems that are intercepted by such
persons.  Without limiting the
foregoing, and to the extent permitted by applicable law, the Borrower agrees
not to assert and to cause its Subsidiaries not to assert, and hereby waives
and


 


74

















 


agrees to cause its Subsidiaries so to waive, all
rights for contribution or any other rights of recovery with respect to all
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any indemnitee.  All amounts due under this Section shall be
payable not later than 30 days after written demand therefor.  Statements payable by the Borrower pursuant
to this Section shall be submitted with reasonable supporting detail to the Borrower’s
chief financial officer, at the address of the Borrower set forth in Section
9.2, or to such other Person or address as may be hereafter designated by the
Borrower in a written notice to the Administrative Agent (which shall promptly
notify each Lender).  The agreements in
this Section shall survive repayment of the Loans and all other amounts payable
hereunder.


9.6  
Successors and Assigns;
Participations and Assignments. 
(a)  This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent, all future
holders of the Loans and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement or any other Loan Document without the prior written consent of
the Administrative Agent and each Lender (and any attempted such assignment or
transfer without such consents shall be null and void).


(b)   Any Lender
may, without the consent of the Borrower, in accordance with applicable law, at
any time sell to one or more banks, financial institutions or other entities
(each, a “Participant”) participating interests in any Revolving Credit
Loan owing to such Lender, the Revolving Credit Commitment of such Lender or
any other interest of such Lender hereunder and under the other Loan
Documents.  In the event of any such
sale by a Lender of a participating interest to a Participant, such Lender’s
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Revolving
Credit Loan or any Reimbursement Obligation for all purposes under this
Agreement and the other Loan Documents, and the Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement and the other
Loan Documents.  In no event shall any
Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to
any departure by any Loan Party therefrom and each Lender shall retain the sole
right to enforce any Loan Document and approve any amendment, modification or
waiver of any provision of the Loan Documents, except that a selling Lender may
agree that, without the Participant’s consent, such selling Lender will not
agree to any amendment, waiver or consent to any provisions of the Loan
Documents to the extent that such amendment, waiver or consent would reduce the
principal of, or interest on, the Loans or Reimbursement Obligations or any
fees payable hereunder, release all or substantially all of the Collateral,
release all or substantially all of the Guarantors from their guarantee
obligations under the Guarantee and Collateral Agreement, or postpone the date
of the final maturity of the Loans, in each case to the extent subject to such
participation.  The Borrower agrees that
if amounts outstanding under this Agreement are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the


 


75

















 


amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 9.7(a) as
fully as if it were a Lender hereunder. 
The Borrower also agrees that each Participant shall be entitled to the
benefits of Sections 2.13, 2.14 and 2.15 with respect to its participation in
the Revolving Credit Commitments and the Loans and Reimbursement Obligations
outstanding from time to time as if it were a Lender; provided that, in
the case of Section 2.14, such Participant shall have complied with the
requirements of said Section and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to any
such Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.


(c)   Any Lender
(an “Assignor”) may, in accordance with applicable law and upon written
notice to the Administrative Agent, at any time and from time to time assign to
any Lender or any affiliate or Approved Fund or Control Investment Affiliate
thereof or, with the consent of each Issuing Lender, the Swing Line Lender, the
Administrative Agent and the Borrower (which, in each case, shall not be
unreasonably withheld or delayed), to an additional bank, financial institution
or other entity (an “Assignee”) all or any part of its rights and
obligations under this Agreement pursuant to an Assignment and Acceptance,
executed by such Assignee and such Assignor (and, where the consent of the
Borrower or any other Person is required pursuant to the foregoing provisions,
by the Borrower and each such other Person) and delivered to the Administrative
Agent for its acceptance and recording in the Register; provided that no
such assignment to an Assignee (other than any Lender or any affiliate or
Approved Fund thereof) shall be in an aggregate principal amount of less than
$3,000,000 (other than in the case of an assignment of all of a Lender’s
interests under this Agreement), unless (i) otherwise agreed by the Borrower
and the Administrative Agent or (ii) such assignment is one of two or more
assignments being made simultaneously to affiliated Assignees, the sum of the
aggregate principal amounts of which is at least $3,000,000.  Upon such execution, delivery, acceptance
and recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Revolving Credit Commitment and/or
Loans and other interests as set forth therein, and (y) the Assignor thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment
and Acceptance covering all of an Assignor’s rights and obligations under this
Agreement, such Assignor shall cease to be a party hereto except as to Sections
2.13, 2.14, 2.16 and 9.5 in respect of the period prior to such effective
date).  Notwithstanding any provision of
this Section, the consent of the Borrower shall not be required for any
assignment that occurs at any time when any Event of Default shall have
occurred and be continuing.


(d)   The
Administrative Agent shall, on behalf of the Borrower, maintain at its address
referred to in Section 9.2 a copy of each Assignment and Acceptance delivered
to it and a register (the “Register”) for the recordation of the names
and addresses of the Lenders and the Revolving Credit Commitment of, and
principal amount of the Revolving Extensions of Credit owing to, each Lender
from time to time.  The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register as the owner of the Revolving 


 


76

















 


Extensions of Credit and any Notes evidencing the
Loans recorded therein for all purposes of this Agreement.  Any assignment of any Loan, whether or not
evidenced by a Note, shall be effective only upon appropriate entries with
respect thereto being made in the Register (and each Note shall expressly so
provide).  Any assignment or transfer of
all or part of a Loan evidenced by a Note shall be registered on the Register
only upon surrender for registration of assignment or transfer of the Note
evidencing such Loan, accompanied by a duly executed Assignment and Acceptance;
thereupon one or more new Notes in the same aggregate principal amount shall be
issued to the designated Assignee, and the old Notes shall be returned by the
Administrative Agent to the Borrower marked “canceled”.  The Register shall be available for
inspection by the Borrower or any Lender (with respect to any entry relating to
such Lender’s Revolving Extensions of Credit) at any reasonable time and from
time to time upon reasonable prior notice.


(e)   Upon its
receipt of an Assignment and Acceptance executed by an Assignor and an Assignee
(and, in any case where the consent of any other Person is required by Section
9.6(c), by each such other Person) together with payment to the Administrative
Agent of a registration and processing fee of $3,500 (except that no such
registration and processing fee shall be payable (y) in connection with an
assignment by or to Lehman Commercial Paper Inc. or any Affiliate thereof or
(z) in the case of an Assignee which is already a Lender or is an affiliate or
Approved Fund of a Lender or a Person under common management with a Lender),
the Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record
the information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders, the Administrative Agent and the
Borrower.  On or prior to such effective
date, the Borrower, at its own expense, upon request, shall execute and deliver
to the Administrative Agent (in exchange for the Note of the assigning Lender)
a new Note to the order of such Assignee in an amount equal to the Revolving
Credit Commitment acquired by it pursuant to such Assignment and Acceptance
and, if the Assignor has retained a Revolving Credit Commitment, upon request,
a new Note to the order of the Assignor in an amount equal to the Revolving
Credit Commitment retained by it hereunder. 
Such new Note or Notes shall be dated the Closing Date and shall
otherwise be in the form of the Note replaced thereby.


(f)   For
avoidance of doubt, the parties to this Agreement acknowledge that the
provisions of this Section concerning assignments of Loans and Notes relate
only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable law.


(g)   Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle (an “SPC”), identified as
such in writing from time to time by the Granting Lender to the Administrative
Agent and the Borrower, the option to provide to the Borrower all or any part
of any Loan that such Granting Lender would otherwise be obligated to make to
the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan, (ii) if
an SPC elects not to exercise such option or otherwise fails to provide all or
any part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof and (iii) the Granting Lender’s and the Borrower’s
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, the Granting Lender shall remain


 


77

















 


solely responsible for the performance thereof, and
the Borrower, the Lenders and the Agents shall continue to deal solely and
directly with such Granting Lender in connection with such Granting Lender’s
rights and obligations under this Agreement and the other Loan Documents.  The making of a Loan by an SPC hereunder shall
utilize the Revolving Credit Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender.  Each party hereto hereby agrees that no SPC
shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Lender).  In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other indebtedness of
any SPC, it will not institute against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any state
thereof.  In addition, notwithstanding
anything to the contrary in this Section 9.6(g), any SPC may (A) with
notice to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Lender, or with the
prior written consent of the Borrower and the Administrative Agent (which
consent shall not be unreasonably withheld) to any financial institutions
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans, and (B) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC; provided that non-public
information with respect to the Borrower may be disclosed only with the
Borrower’s consent which will not be unreasonably withheld.  In the event that the consent of all or any
portion of the Lenders is required pursuant to any provision of any Loan
Document at a time when any Loan is held by any SPC, such SPC and the Granting
Lender that would otherwise have been obligated to make such Loan shall agree
between themselves as to which of them shall be entitled to grant or withhold
any consent applicable to such Loan, but such Granting Lender shall communicate
with the Administrative Agent and the Borrower as to the giving or withholding
of such consent, and the parties to the Loan Documents shall be entitled to
rely conclusively on the advice by such Granting Lender as to whether such
consent is being granted or withheld. This paragraph (g) may not be amended
without the written consent of any SPC with Loans outstanding at the time of
such proposed amendment.


9.7  
Adjustments; Set-off.  (a)  Except to the extent that this Agreement provides
for payments to be allocated to a particular Lender and except to the extent
that Section 2.18 of this Agreement provides for payments to a substituted
Lender, if any Lender (a “Benefited Lender”) shall at any time receive
any payment of all or part of the Obligations owing to it, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 7(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender’s
Obligations, such Benefited Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other Lender’s
Obligations, or shall provide such other Lenders with the benefits of any such
collateral, as shall be necessary to cause such Benefited Lender to share the
excess payment or benefits of such collateral ratably with each of the Lenders;
provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.


 


78

















 


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


9.8  
Counterparts. 
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.  Delivery of an executed signature page of
this Agreement or of a Lender Addendum by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.


9.9  
Severability. 
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


9.10  
Integration. 
This Agreement and the other Loan Documents represent the entire
agreement of the Borrower, the Agents, the Arranger and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Arranger, any Agent or any
Lender relative to subject matter hereof or thereof not expressly set forth or
referred to herein or in the other Loan Documents.


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


9.12  
Submission To Jurisdiction; Waivers.  The Borrower hereby irrevocably and
unconditionally:


(a)  
submits for itself and its Property in any legal action or proceeding relating
to this Agreement and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;


 


79

















 


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


(c)  
agrees that service of process in any such action or proceeding may be effected
by mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Borrower at its address set
forth in Section 9.2 or at such other address of which the Administrative Agent
shall have been notified pursuant thereto;


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


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


9.13  
Acknowledgments.  The Borrower hereby acknowledges that:


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


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


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


9.14  
Confidentiality.  Each of the Agents and the Lenders agrees to keep confidential
all non-public information provided to it by any Loan Party pursuant to this
Agreement that is designated by such Loan Party as confidential; provided
that nothing herein shall prevent any Agent or any Lender from disclosing any
such information (a) to the Arranger, any Agent, any other Lender or any
affiliate or Approved Fund of any thereof, (b) to any Participant, or Assignee,
or pledgee of interests hereunder (each, a “Transferee”) or prospective
Transferee that agrees to comply with the provisions of this Section, (c) to
any of its employees, directors, agents, attorneys, accountants and other
professional advisors who are, or are expected to be, engaged in evaluating,
approving, structuring or administering this Agreement or otherwise on a
“need-to-know basis” if reasonably incidental to the administration of this
Agreement (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such information and instructed
to keep such information confidential), (d) to any financial institution that
is a direct or indirect contractual counterparty in swap agreements or such
contractual counterparty’s professional advisor (so long as such


 


80

















 


contractual counterparty or professional advisor to
such contractual counterparty agrees to be bound by the provisions of this
Section), (e) upon the request or demand of any Governmental Authority
(including, without limitation, bank regulatory authorities) having
jurisdiction over it, (f) in response to any order of any court or other
Governmental Authority (including, without limitation, bank regulatory
authorities) or as may otherwise be required pursuant to any Requirement of
Law, (g) in connection with any litigation or similar proceeding, (h) that has
been publicly disclosed other than in breach of this Section, (i) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about a Lender’s investment portfolio in connection with ratings issued with
respect to such Lender or (j) in connection with the exercise of any remedy
hereunder or under any other Loan Document.


9.15   Release of Collateral Security and
Guarantee Obligations. 
Notwithstanding anything to the contrary contained herein or in the
Guarantee and Collateral Agreement, upon request of the Borrower, the
Administrative Agent shall (without notice to or vote or consent of any Lender)
take action having the effect of releasing any Collateral and/or guarantee
obligations provided for in the Guarantee and Collateral Agreement to the
extent necessary to permit consummation, by the relevant Person in accordance
with the terms of this Agreement and the other Loan Documents, of any
transaction not prohibited hereunder.


9.16   Accounting Changes.  In the event that any “Accounting Change” (as defined below)
shall occur and such change results in a change in the method of calculation of
financial covenants, standards or terms in this Agreement, then the Borrower
and the Administrative Agent agree to enter into negotiations in order to amend
such provisions of this Agreement so as to equitably reflect such Accounting
Change with the desired result that the criteria for evaluating the Borrower’s
financial condition shall be the same after such Accounting Change as if such
Accounting Change had not been made. 
Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Administrative Agent and the Required Lenders,
all financial covenants, standards and terms in this Agreement shall continue
to be calculated or construed as if such Accounting Change had not
occurred.  “Accounting Change” refers to
any change in accounting principles required by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.


9.17  
Delivery of Lender Addenda.  Each initial Lender shall become a party to
this Agreement by delivering to the Administrative Agent a Lender Addendum duly
executed by such Lender, the Borrower and the Administrative Agent.


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


 


81

















 


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


 


	
   

  	
  B&G
  FOODS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  LEHMAN
  BROTHERS INC.,

  
	
   

  	
  as
  Arranger

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  LEHMAN
  COMMERCIAL PAPER INC.,

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  



 


 


82

















 


ANNEX A


PRICING GRID FOR REVOLVING
CREDIT LOANS


	
  Consolidated Leverage Ratio

  	
   

  	
  Applicable Margin for Eurodollar Loans

  	
   

  	
  Applicable Margin for Base Rate Loans

  
	
  Greater than or equal to
  5.00 to 1.00

  	
   

  	
  3.00%

  	
   

  	
  2.00%

  
	
  Less than 5.00 to 1.00,
  but greater than or equal to 4.50 to 1.00

  	
   

  	
  2.75%

  	
   

  	
  1.75%

  
	
  Less than 4.50 to 1.00,
  but greater than or equal to 4.00 to 1.00

  	
   

  	
  2.50%

  	
   

  	
  1.50%

  
	
  Less than 4.00 to 1.00

  	
   

  	
  2.25%

  	
   

  	
  1.25%

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Changes in the Applicable
Margin with respect to Loans resulting from changes in the Consolidated
Leverage Ratio shall become effective on the date (the “Adjustment Date”)
on which financial statements are delivered to the Lenders pursuant to Section
5.1 (but in any event not later than the 45th day after the end of each of the
first three quarterly periods of each fiscal year or the 90th day after the end
of each fiscal year, as the case may be) and shall remain in effect until the
next change to be effected pursuant to this paragraph.  If any financial statements referred to
above are not delivered within the time periods specified above, then, until
such financial statements are delivered, the Consolidated Leverage Ratio as at
the end of the fiscal period that would have been covered thereby shall for the
purposes of this Pricing Grid be deemed to be greater than 5.00 to 1.00.  In addition, at all times while an Event of
Default shall have occurred and be continuing, the Consolidated Leverage Ratio
shall for the purposes of this Pricing Grid be deemed to be greater than 5.00
to 1.00.  Each determination of the
Consolidated Leverage Ratio pursuant to this Pricing Grid shall be made with
respect to the period of four consecutive fiscal quarters of the Borrower
ending at the end of the period covered by the relevant financial statements.

















 


ANNEX B


EXISTING
LETTERS OF CREDIT


	
  Ref. No.

  	
   

  	
  Amount

  	
   

  	
  Beneficiary

  
	
  00039782

  	
   

  	
  93,095

  	
   

  	
  Zurich Insurance Company

  
	
  00040169

  	
   

  	
  251,864

  	
   

  	
  The Travelers Indemnity Company

  
	
  00039594

  	
   

  	
  850,000

  	
   

  	
  State of CA Public Employees Retirement System

  
	
  00039783

  	
   

  	
  71,753

  	
   

  	
  Liberty Mutual Insurance Company

  



 

















 


SCHEDULE 3.4


CONSENTS, AUTHORIZATIONS,
FILINGS AND NOTICES

















SCHEDULE 3.9


INTELLECTUAL PROPERTY CLAIMS












SCHEDULE 3.15


SUBSIDIARIES

















 


SCHEDULE 3.19(a)-1


UCC FILING JURISDICTIONS

















 


SCHEDULE 3.19(a)-2


UCC FINANCING STATEMENTS TO
REMAIN ON FILE

















 


SCHEDULE 6.2(d)


EXISTING INDEBTEDNESS

















 


SCHEDULE 6.3(f)


EXISTING LIENS

















 


SCHEDULE 6.10


TRANSACTIONS WITH AFFILIATES