EX-10.1



 





Exhibit 10.1

 





TERM LOAN CREDIT AGREEMENT




dated as of July 20, 2007




among




NETWORK COMMUNICATIONS, INC.,




GALLARUS MEDIA HOLDINGS, INC.,




THE LENDERS PARTY HERETO




and




TORONTO DOMINION (TEXAS) LLC,

as Administrative Agent and Collateral Agent




 






TD SECURITIES (USA) LLC,

as Sole Bookrunner and Sole Lead Arranger,




TD SECURITIES (USA) LLC,

as Syndication Agent




and




WELLS FARGO FOOTHILL, INC.,

as Documentation Agent




 






 









 








Table of Contents




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	Definitions
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Terms Generally
	 	 	38	 
	SECTION 1.03. Classification of Loans and Borrowings
	 	 	38	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	The Credits
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	39	 
	SECTION 2.02. Loans
	 	 	39	 
	SECTION 2.03. Borrowing Procedure
	 	 	40	 
	SECTION 2.04. Evidence of Debt; Repayment of Loans
	 	 	40	 
	SECTION 2.05. Administrative Agent Fees
	 	 	41	 
	SECTION 2.06. Interest on Loans
	 	 	41	 
	SECTION 2.07. Default Interest
	 	 	42	 
	SECTION 2.08. Alternate Rate of Interest
	 	 	42	 
	SECTION 2.09. Termination of Commitments
	 	 	42	 
	SECTION 2.10. Conversion and Continuation of Borrowings
	 	 	42	 
	SECTION 2.11. Repayment of Borrowings
	 	 	44	 
	SECTION 2.12. Optional Prepayment
	 	 	45	 
	SECTION 2.13. Mandatory Prepayments
	 	 	45	 
	SECTION 2.14. Reserve Requirements; Change in Circumstances
	 	 	46	 
	SECTION 2.15. Change in Legality
	 	 	47	 
	SECTION 2.16. Indemnity
	 	 	48	 
	SECTION 2.17. Pro Rata Treatment
	 	 	48	 
	SECTION 2.18. Sharing of Setoffs
	 	 	49	 
	SECTION 2.19. Payments
	 	 	49	 
	SECTION 2.20. Taxes
	 	 	50	 
	SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate
	 	 	51	 
	SECTION 2.22. Incremental Loans
	 	 	52	 
	SECTION 2.23. Change of Control
	 	 	54	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	Representations and Warranties
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	55	 
	SECTION 3.02. Authorization
	 	 	55	 
	SECTION 3.03. Enforceability
	 	 	55	 
	SECTION 3.04. Governmental Approvals
	 	 	56	 
	SECTION 3.05. Financial Statements
	 	 	56	 
	SECTION 3.06. No Material Adverse Change
	 	 	56	 






i









 





Table
of Contents
(continued)




	 	 	 	 	 
	 	 	Page
	SECTION 3.07. Title to Properties; Possession Under Leases
	 	 	57	 
	SECTION 3.08. Subsidiaries
	 	 	57	 
	SECTION 3.09. Litigation; Compliance with Laws
	 	 	57	 
	SECTION 3.10. Agreements
	 	 	57	 
	SECTION 3.11. Federal Reserve Regulations
	 	 	58	 
	SECTION 3.12. Investment Company Act
	 	 	58	 
	SECTION 3.13. Use of Proceeds
	 	 	58	 
	SECTION 3.14. Tax Returns
	 	 	58	 
	SECTION 3.15. No Material Misstatements
	 	 	58	 
	SECTION 3.16. Employee Benefit Plans
	 	 	58	 
	SECTION 3.17. Environmental Matters
	 	 	59	 
	SECTION 3.18. Insurance
	 	 	59	 
	SECTION 3.19. Security Documents
	 	 	59	 
	SECTION 3.20. Location of Real Property and Leased Premises
	 	 	60	 
	SECTION 3.21. Labor Matters
	 	 	61	 
	SECTION 3.22. Solvency
	 	 	61	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	Conditions of Lending
	 	 	 	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	Affirmative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Existence; Compliance with Laws; Businesses and Properties
	 	 	64	 
	SECTION 5.02. Insurance
	 	 	64	 
	SECTION 5.03. Obligations and Taxes
	 	 	65	 
	SECTION
5.04. Financial Statements, Reports, etc.
	 	 	65	 
	SECTION 5.05. Litigation and Other Notices
	 	 	67	 
	SECTION 5.06. Information Regarding Collateral
	 	 	68	 
	SECTION 5.07. Maintaining Records; Access to Properties and Inspections; Maintenance of Ratings
	 	 	68	 
	SECTION 5.08. Use of Proceeds
	 	 	68	 
	SECTION 5.09. Employee Benefits
	 	 	68	 
	SECTION 5.10. Compliance with Environmental Laws
	 	 	69	 
	SECTION 5.11. Preparation of Environmental Reports
	 	 	69	 
	SECTION 5.12. Further Assurances
	 	 	69	 
	SECTION 5.13. Maintenance of Corporate Separateness
	 	 	70	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	Negative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01. Limitation on Indebtedness
	 	 	71	 
	SECTION 6.02. Limitation on Liens
	 	 	74	 
	SECTION 6.03. Limitation on Restricted Payments
	 	 	74	 






ii









 




Table
of Contents
(continued)




	 	 	 	 	 
	 	 	Page
	SECTION 6.04. Limitation on Restrictions on Distributions from Restricted Subsidiaries

	 	 	79	 
	
SECTION 6.05. Limitation on Sales of Assets and Subsidiary Stock
	 	 	81	 
	SECTION 6.06. Limitation on Affiliate Transactions
	 	 	82	 
	SECTION 6.07. Limitation on Line of Business
	 	 	84	 
	SECTION 6.08. Merger and Consolidation
	 	 	84	 
	SECTION 6.09. Limitation on Sale/Leaseback Transactions
	 	 	86	 
	SECTION 6.10. Impairment of Security Interest
	 	 	86	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	Events of Default
	 	 	 	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	The Administrative Agent
	 	 	 	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	91	 
	SECTION 9.02. Survival of Agreement
	 	 	92	 
	SECTION 9.03. Binding Effect
	 	 	92	 
	SECTION 9.04. Successors and Assigns
	 	 	92	 
	SECTION 9.05. Expenses; Indemnity
	 	 	96	 
	SECTION 9.06. Right of Setoff
	 	 	97	 
	SECTION 9.07. Applicable Law
	 	 	97	 
	SECTION 9.08. Waivers; Amendment
	 	 	97	 
	SECTION 9.09. Interest Rate Limitation
	 	 	98	 
	SECTION 9.10. Entire Agreement
	 	 	98	 
	SECTION 9.11. WAIVER OF JURY TRIAL
	 	 	99	 
	SECTION 9.12. Severability
	 	 	99	 
	SECTION 9.13. Counterparts
	 	 	99	 
	SECTION 9.14. Headings
	 	 	99	 
	SECTION 9.15. Jurisdiction; Consent to Service of Process
	 	 	99	 
	SECTION 9.16. Confidentiality
	 	 	100	 
	SECTION 9.17. USA PATRIOT Act Notice
	 	 	100	 






iii









 





Table
of Contents
(continued)



SCHEDULES




					
	 	 	 	 	Page







	 	 	 	 	 
	Schedule 1.01(a)

	 	—
	 	Subsidiary Guarantors
	Schedule 1.01(b)

	 	—
	 	Existing Liens
	Schedule 2.01

	 	—
	 	Lenders and Commitments
	Schedule 3.08

	 	—
	 	Subsidiaries
	Schedule 3.09

	 	—
	 	Litigation
	Schedule 3.17

	 	—
	 	Environmental Matters
	Schedule 3.18

	 	—
	 	Insurance
	Schedule 3.19(a)

	 	—
	 	UCC Filing Offices
	Schedule 3.20(b)

	 	—
	 	Leased Real Property
	Schedule IV(d)

	 	—
	 	Local Counsel
	Schedule 6.01

	 	—
	 	Existing Indebtedness






EXHIBITS




	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Administrative Questionnaire
	Exhibit B

	 	—
	 	Form of Assignment and Acceptance
	Exhibit C

	 	—
	 	Form of Borrowing Request
	Exhibit D

	 	—
	 	Form of Guarantee, Collateral and Intercreditor Agreement
	Exhibit E

	 	—
	 	Form of Term Loan Promissory Note






iv









 






     TERM LOAN CREDIT AGREEMENT (this “Agreement”) dated as of July 20,
2007, among NETWORK COMMUNICATIONS, INC., a Georgia corporation (the
“Borrower”), GALLARUS MEDIA HOLDINGS, INC., a Delaware corporation
(“Holdings”), the Lenders (as defined in Article I), and TORONTO DOMINION
(TEXAS) LLC, as administrative agent (in such capacity, the “Administrative
Agent”) and as collateral agent (in such capacity, the “Collateral Agent”)
for the Lenders.



     The Borrower has requested the Lenders to extend credit in the form of Loans (such term and
each other capitalized term used but not defined in this introductory statement having the meaning
given it in Article I) on the Closing Date, in an aggregate principal amount not in excess of
$76,635,902. The proceeds of the Loans are to be used solely (a) to repay all amounts outstanding
under the Existing Credit Agreement, (b) to pay fees and expenses incurred in connection with the
Transactions and (c) for general corporate purposes not expressly prohibited herein.



     The Lenders are willing to extend such credit to the Borrower on the terms and subject to the
conditions set forth herein. Accordingly, the parties hereto agree as follows:



ARTICLE I




Definitions




     SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:



     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.



     “Additional Assets” shall mean (a) any assets used or capable of being used in a Related
Business, (b) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the
acquisition of such Capital Stock by the Borrower or another Restricted Subsidiary, or (c) Capital
Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary;
provided, however, that any such Restricted Subsidiary described in clause (b) or (c) above is
primarily engaged in a Related Business.



     “Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum equal to the product of (a) the LIBO Rate in effect for such
Interest Period and (b) Statutory Reserves.



     “Administrative Agent” shall have the meaning assigned to such term in the preamble to this
Agreement.



     “Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05.



 









 





     “Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of
Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.



     “Affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing; provided that for the avoidance of doubt,
for all purposes hereunder Court Square Advisor, LLC, a Delaware limited liability company, shall
be considered to be an Affiliate of Sponsor.



     “Affiliate Transaction” shall have the meaning assigned to such term in Section 6.06(a).



     “Agreement” shall have the meaning assigned to such term in the preamble to this Agreement.



     “Alternate Base Rate” shall mean, for any day, a rate per annum 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%. If the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the preceding sentence until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may be.



     “Annual Reporting Period” shall mean (a) prior to the delivery of a Notice of Change of
Reporting Period, a fiscal period consisting of four consecutive Quarterly Reporting Periods ending
on the last Sunday of March of each calendar year, and (b) after delivery of a Notice of Change of
Reporting Period, a fiscal period consisting of twelve consecutive calendar months ending on the
date specified in the Notice of Change of Reporting Period.



     “Applicable Percentage” shall mean, for any day, (a) with respect to any Eurodollar Loan,
2.00% or (b) with respect to any ABR Loan, 1.00%.



     “Asset Sale” shall mean the sale, transfer or other disposition (by way of merger, casualty,
condemnation or otherwise) by the Borrower or any of the Restricted Subsidiaries to any Person
other than the Borrower or any Subsidiary Guarantor of (a) any Capital Stock of any of the
Restricted Subsidiaries (other than directors’ qualifying shares) or (b) any other assets of the
Borrower or any of the Restricted Subsidiaries (other than (i) inventory, damaged, obsolete or worn
out assets, scrap and cash or Temporary Cash Investments, in each case disposed of in the ordinary
course of business, (ii) dispositions between or among Foreign Subsidiaries and (iii) any



2









 







sale, transfer or other disposition or series of related sales, transfers or other
dispositions having a value not in excess of $350,000).



     “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender
and an assignee, and accepted by the Administrative Agent, in the form of Exhibit B or such other
form as shall be approved by the Administrative Agent.



     “Attributable Debt” shall mean, in respect of a Sale/Leaseback Transaction, as at the time of
determination, the present value (discounted at the interest rate then borne by the Loans,
compounded annually) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended); provided, however, that if such Sale/Leaseback Transaction
results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be
determined in accordance with the definition of “Capital Lease Obligation”.



     “Average Life” shall mean, as of the date of determination, with respect to any Indebtedness,
the quotient obtained by dividing (a) the sum of the products of the numbers of years from the date
of determination to the dates of each successive scheduled principal payment of or redemption or
similar payment with respect to such Indebtedness multiplied by the amount of such payment by
(b) the sum of all such payments.



     “Board” shall mean the Board of Governors of the Federal Reserve System of the United States
of America.



     “Board of Directors” shall mean the Board of Directors of the Borrower or any committee
thereof duly authorized to act on behalf of such Board of Directors.



     “Borrower” shall have the meaning assigned to such term in the preamble to this Agreement.



     “Borrowing” shall mean Loans of the same Type made, converted or continued on the same date
and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.



     “Borrowing Request” shall mean a request by the Borrower in accordance with the terms of
Section 2.03 and substantially in the form of Exhibit C, or such other form as shall be approved by
the Administrative Agent.



     “Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in New
York City and Toronto, Canada are authorized or required by law to close; provided, however, that
when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day
on which banks are not open for dealings in dollar deposits in the London interbank market.



     “Capital Expenditures” shall mean, for any period, (a) the additions to property, plant and
equipment and other capital expenditures of the Borrower and its consolidated Subsidiaries that are
(or should be) set forth in a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP and (b) Capital Lease Obligations or Synthetic Lease Obligations
incurred by the Borrower and its consolidated Subsidiaries during such period,



3









 







but excluding in each case any such expenditure during such period (i) made to restore,
replace or rebuild property to the condition of such property immediately prior to any damage,
loss, destruction or condemnation of such property, to the extent such expenditure is made with
insurance proceeds, condemnation awards or damage recovery proceeds relating to any such damage,
loss, destruction or condemnation, (ii) constituting reinvestment of the net cash proceeds from
sales or other disposition of assets permitted hereby, (iii) made as the purchase price in respect
of the purchase of (A) assets constituting all or substantially all the assets of a Person or a
line of business, division or segment of a Person or (B) not less than 100% of the Capital Stock
(other than directors’ qualifying shares) of a Person, (iv) which is contractually required to be,
and is, reimbursed in cash by a third party or (v) constituting capitalized interest.



     “Capital Lease Obligation” shall mean an obligation that is required to be classified and
accounted for as a capital lease for financial reporting purposes in accordance with GAAP, and the
amount of Indebtedness represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.



     “Capital Stock” of any Person shall mean any and all shares, interests (including partnership
interests), rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred Stock, but
excluding any debt securities convertible into such equity.



     A “Change of Control” shall be deemed to have occurred if (a) any “Person” (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, is
or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except
that for purposes of this clause (a) such Person shall be deemed to have “beneficial ownership” of
all shares that any such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more than 50% of the
total voting power of the Voting Stock of the Borrower, (b) individuals who on the Closing Date
constituted the Board of Directors (together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the Borrower was (i) approved by
a vote of the majority of the directors of the Borrower then still in office who were either
directors on the Closing Date or whose election or nomination for election was previously so
approved or (ii) approved by Permitted Holders, as the case may be) cease for any reason to
constitute a majority of the Board of Directors then in office, (c) the adoption of a plan relating
to the liquidation or dissolution of the Borrower, or (d) the merger or consolidation of the
Borrower or Holdings with or into another Person or the merger of another Person with or into the
Borrower or Holdings, or the sale of all or substantially all the assets of the Borrower or
Holdings (determined on a consolidated basis) to another Person other than (i) a transaction in
which the survivor or transferee is one or more Permitted Holders or a Person or Persons controlled
by one or more of the Permitted Holders or (ii) a transaction following which (A) in the case of a
merger or consolidation transaction, holders of securities that represented 100% of the Voting
Stock of the Borrower or Holdings, as the case may be, immediately prior to such transaction (or
other securities into which such securities are converted as part of such merger or consolidation
transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock
of the surviving Person in such merger or consolidation transaction



4









 







immediately after such transaction and in substantially the same proportion as before the
transaction and (B) in the case of a sale of assets transaction, each transferee becomes a
Subsidiary of the transferor of such assets and in the case of a transferee of the Borrower,
becomes an obligor in respect of the Loans.



     “Change in Law” shall mean (a) the adoption of any law, rule or regulation after the date of
this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.14, by any lending office of such Lender or
by such Lender’s holding company, if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the date of this
Agreement.



     “Closing Date” shall mean July 20, 2007.



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



     “Collateral” shall mean all the “Collateral” as defined in any Security Document and shall
also include the Mortgaged Properties.



     “Collateral Agent” shall have the meaning assigned to such term in the preamble to this
Agreement.



     “Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make
Loans hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender assumed its Commitment, as applicable, as the same may be reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. Unless the
context shall otherwise require, the term “Commitments” shall include the Incremental Loan
Commitments.



     “Commodity Agreement” shall mean any non-speculative agreement entered into by the Borrower or
any Restricted Subsidiary in order to hedge for price fluctuations of raw materials used or usable
in the ordinary course of business of the Borrower.



     “Consolidated Coverage Ratio” shall mean, as of any date of determination, the ratio of
(a) the aggregate amount of EBITDA for the period of the most recent four consecutive Quarterly
Reporting Periods ending prior to the date of such determination for which internal financial
statements are available to (b) Consolidated Interest Expense for such period of four consecutive
Quarterly Reporting Periods; provided, however, that (i) if the Borrower or any Restricted
Subsidiary has Incurred any Indebtedness since the beginning of such period that remains
outstanding or if the transaction giving rise to the need to calculate the Consolidated Coverage
Ratio is an Incurrence of Indebtedness, or both, EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving effect on a pro forma basis to such Indebtedness as if such
Indebtedness had been Incurred on the first day of such period, (ii) if the Borrower or any
Restricted Subsidiary has repaid, repurchased, defeased or otherwise discharged any Indebtedness
since the beginning of such period or if any Indebtedness is to be repaid, repurchased, defeased or
otherwise discharged (in each case other than Indebtedness Incurred under any revolving credit
facility unless such Indebtedness has been permanently repaid and has



5









 







not been replaced) on the date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense for such period shall be
calculated on a pro forma basis as if such discharge had occurred on the first day of such period,
(iii) if since the beginning of such period the Borrower or any Restricted Subsidiary shall have
made any Asset Sale, EBITDA for such period shall be reduced by an amount equal to EBITDA (if
positive) directly attributable to the assets which are the subject of such Asset Sale for such
period, or increased by an amount equal to EBITDA (if negative), directly attributable thereto for
such period and Consolidated Interest Expense for such period shall be reduced by an amount equal
to the Consolidated Interest Expense directly attributable to any Indebtedness of the Borrower or
any Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with respect to the
Borrower and its continuing Restricted Subsidiaries in connection with such Asset Sale for such
period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest
Expense for such period directly attributable to the Indebtedness of such Restricted Subsidiary to
the extent the Borrower and its continuing Restricted Subsidiaries are no longer liable for such
Indebtedness after such sale), (iv) if since the beginning of such period the Borrower or any
Restricted Subsidiary (by merger or otherwise) shall have made an Investment in any Restricted
Subsidiary (or any Person which becomes a Restricted Subsidiary) or an acquisition of assets,
including any acquisition of assets occurring in connection with a transaction requiring a
calculation to be made hereunder, which constitutes all or substantially all of an operating unit
of a business, EBITDA and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any Indebtedness) as if such
Investment or acquisition had occurred on the first day of such period; and (v) if since the
beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged
with or into the Borrower or any Restricted Subsidiary since the beginning of such period) shall
have made any Asset Sale, any Investment or acquisition of assets that would have required an
adjustment pursuant to clause (iii) or (iv) above if made by the Borrower or a Restricted
Subsidiary during such period, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if such Asset Sale, Investment or acquisition
had occurred on the first day of such period.



     For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto and the amount of Consolidated Interest
Expense associated with any Indebtedness Incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible financial or accounting Officer of
the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date
of determination had been the applicable rate for the entire period (taking into account any
Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a
remaining term in excess of 12 months).



     If any Indebtedness is incurred under a revolving credit facility and is being given pro forma
effect, the interest on such Indebtedness shall be calculated based on the average daily balance of
such Indebtedness for the four Quarterly Reporting Periods subject to the pro forma calculation to
the extent that such Indebtedness was incurred solely for working capital purposes.



     “Consolidated Foreign Assets” shall mean, as of any date of determination, the total amount of
assets (but without duplication) that would appear on a combined balance sheet of the



6









 







Borrower’s Foreign Restricted Subsidiaries, determined on a combined basis in accordance with
GAAP.



     “Consolidated Interest Expense” shall mean, for any period, (a) the total interest expense of
the Borrower and its consolidated Restricted Subsidiaries; plus (b) to the extent not
included in such total interest expense, and to the extent incurred by the Borrower or its
Restricted Subsidiaries, without duplication, (i) interest expense attributable to Capital Lease
Obligations, (ii) amortization of debt discount, (iii) capitalized interest, (iv) non-cash interest
expense, (v) commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financing, (vi) net payments pursuant to interest rate Hedging
Obligations (including amortization of fees), (vii) dividends accrued in respect of all
Disqualified Stock of the Borrower and all Preferred Stock of any Restricted Subsidiary, in each
case, held by Persons other than the Borrower or a Restricted Subsidiary (other than dividends
payable solely in Capital Stock (other than Disqualified Stock) of the Borrower); provided,
however, that such dividends will be multiplied by a fraction of the numerator of which is one and
the denominator of which is one minus the effective combined tax rate of the issuer of such
Preferred Stock (expressed as a decimal) for such period (as estimated by the chief financial
officer of the Borrower in good faith), (viii) interest incurred in connection with Investments in
discontinued operations, (ix) interest accruing on any Indebtedness of any other Person to the
extent such Indebtedness is Guaranteed by (or secured by the assets of) the Borrower or any
Restricted Subsidiary (other than a pledge of the Capital Stock of an Unrestricted Subsidiary to
secure Indebtedness of such Unrestricted Subsidiary); and (x) the cash contributions to any
employee stock ownership plan or similar trust to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than the Borrower) in connection with
Indebtedness Incurred by such plan or trust; less (c) interest income actually received in
cash for such period; provided, however, that Securitization Fees and amortization of debt issuance
costs shall not be deemed to constitute Consolidated Interest Expense.



     “Consolidated Leverage Ratio” shall mean, as of any date of determination, the ratio of
(a) the aggregate amount of (i) Indebtedness of the Borrower and its Restricted Subsidiaries as of
such date of determination less (ii) the aggregate amount of cash and cash equivalents of
the Borrower and its Restricted Subsidiaries as of such date of determination to (b) EBITDA for the
most recent four consecutive Quarterly Reporting Periods for which internal financial statements
are available prior to such date of determination (the “Reference Period”); provided, however, that
(i) if the transaction giving rise to the need to calculate the Consolidated Leverage Ratio is an
Incurrence of Indebtedness, the amount of such Indebtedness and the amount of cash and cash
equivalents shall be calculated after giving effect on a pro forma basis to such Indebtedness and
the use of proceeds of such Indebtedness, (ii) if any Indebtedness is to be repaid, repurchased,
defeased or otherwise discharged on the date of the transaction giving rise to the need to
calculate the Consolidated Leverage Ratio (other than, in each case, Indebtedness Incurred under
any revolving credit agreement unless commitments thereunder are permanently reduced), the
aggregate amount of Indebtedness and cash and cash equivalents shall be calculated on a pro forma
basis, (iii) if since the beginning of the Reference Period the Borrower or any Restricted
Subsidiary shall have made any Asset Sale, the EBITDA for the Reference Period shall be reduced by
an amount equal to the EBITDA (if positive) directly attributable to the assets which are the
subject of such Asset Sale for the Reference Period or increased by an amount equal to the EBITDA
(if negative) directly attributable thereto for the Reference Period, (iv) if since the



7









 







beginning of the Reference Period the Borrower or any Restricted Subsidiary (by merger or
otherwise) shall have made an Investment in any Restricted Subsidiary (or any Person which becomes
a Restricted Subsidiary) or an acquisition of assets which constitutes all or substantially all of
an operating unit of a business, EBITDA for the Reference Period shall be calculated after giving
pro forma effect thereto (including the Incurrence of any Indebtedness) as if such Investment or
acquisition had occurred on the first day of the Reference Period, and (v) if since the beginning
of the Reference Period any Person (that subsequently became a Restricted Subsidiary or was merged
with or into the Borrower or any Restricted Subsidiary since the beginning of such Reference
Period) shall have made any Asset Sale, any Investment or acquisition of assets that would have
required an adjustment pursuant to clause (iii) or (iv) above if made by the Borrower or a
Restricted Subsidiary during the Reference Period, EBITDA for the Reference Period shall be
calculated after giving pro forma effect thereto as if such Asset Sale, Investment or acquisition
had occurred on the first day of the Reference Period.



     For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto and the amount of Consolidated Interest
Expense associated with any Indebtedness Incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible financial or accounting Officer of
the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date
of determination had been the applicable rate for the entire period (taking into account any
interest rate agreement applicable to such Indebtedness if such interest rate agreement has a
remaining term in excess of 12 months).



     If any Indebtedness is incurred under a revolving credit facility and is being given pro forma
effect, the interest on such Indebtedness shall be calculated based on the average daily balance of
such Indebtedness for the four Quarterly Reporting Periods subject to the pro forma calculation to
the extent such Indebtedness was incurred solely for working capital purposes.



     “Consolidated Net Income” shall mean, for any period, the net income of the Borrower and its
consolidated Subsidiaries; provided, however, that there shall not be included in such Consolidated
Net Income:



     (a) any net income of any Person (other than the Borrower) if such Person is not a Restricted
Subsidiary, except that:




     (i) subject to the exclusion contained in clause (d) below, the Borrower’s equity in
the net income of any such Person for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such Person during such
period to the Borrower or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid to a Restricted Subsidiary,
to the limitations contained in clause (c) below), and




     (ii) (A) the Borrower’s equity in a net loss of any such Person (other than an
Unrestricted Subsidiary) for such period shall be included in determining such Consolidated
Net Income up to the aggregate amount of cash or other property actually paid or contributed
by the Borrower or a Restricted Subsidiary to fund such loss and (B)



8









 







the Borrower’s equity in a net loss of an Unrestricted Subsidiary for such period shall
be excluded;



     (b) any net income (or loss) of any Person acquired by the Borrower or a Subsidiary in a
pooling of interests transaction (or any transaction accounted for in a manner similar to a pooling
of interests) for any period prior to the date of such acquisition;



     (c) solely for the purpose of determining the amount available for Restricted Payments under
Section 6.03(a)(iii), any net income of any Restricted Subsidiary if such Restricted Subsidiary is
subject to restrictions, directly or indirectly, on the payment of dividends or the making of
distributions by such Restricted Subsidiary, directly or indirectly, to the Borrower, except that:




     (i) subject to the exclusion contained in clause (d) below, the Borrower’s equity in
the net income of any such Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Borrower or another Restricted Subsidiary as
a dividend or other distribution (subject, in the case of a dividend or other distribution
paid to another Restricted Subsidiary, to the limitation contained in this clause), and




     (ii) the Borrower’s equity in a net loss of any such Restricted Subsidiary for such
period shall be included in determining such Consolidated Net Income up to the aggregate
amount of cash or other property actually paid or contributed by the Borrower or another
Restricted Subsidiary to fund such loss;



     (d) any gain (or loss) realized upon the sale or other disposition of any assets of the
Borrower, its consolidated Subsidiaries or any other Person (including pursuant to any
sale-and-leaseback arrangement) which is not sold or otherwise disposed of in the ordinary course
of business and any gain (or loss) realized upon the sale or other disposition of any Capital Stock
of any Person;



     (e) any net after-tax extraordinary, unusual or nonrecurring gains, losses, charges or
expenses (including severance, relocation, transition and other restructuring costs and litigation
settlements or losses);



     (f) the cumulative effect of a change in accounting principles;



     (g) any unrealized non-cash gains or losses or charges in respect of Hedging Obligations
(including those resulting from the application of Statement of Financial Accounting Standards
No. 133);



     (h) any non-cash compensation charge arising from any grant of stock, stock options or other
equity-based awards;



     (i) any gains or losses (less all fees and expenses or charges relating thereto) attributable
to the early extinguishment of Indebtedness;



9









 





     (j) the effect of any non-cash items resulting from any depreciation of software development
costs, amortization, write-up, write-down or write-off of existing assets (including intangible
assets, goodwill and deferred financing costs) or assets acquired in connection with the
Refinancing or any future acquisition, merger, consolidation or similar transaction (excluding any
such non-cash item to the extent that it represents an accrual of or reserve for cash expenditures
in any future period except to the extent such item is subsequently reversed);



     (k) any income or loss from discontinued operations and any gains or losses on disposal of
discontinued operations;



     (l) any non-cash impairment charges resulting from the application of Statement of Financial
Accounting Standards Nos. 142 and 144 and the amortization of intangibles arising pursuant to
Statement of Financial Accounting Standards No. 141;



     (m) accruals and reserves that are established within twelve months after the Closing Date and
that are so required to be established in accordance with GAAP; provided, however, that any
non-cash item that represents an accrual or reserve for a cash expenditure for a future period
shall be treated as an expense in such future period when cash is paid (except to the extent such
item would otherwise be excluded under this definition); and



     (n) fees, expenses and charges in connection with the Refinancing; in each case, for such
period; provided further, however, that an amount equal to the distributions actually made in
respect of such period in accordance with Section 6.03(b)(xix) shall be included as though such
amounts had been paid as income taxes for such period. Notwithstanding the foregoing, for the
purposes of Section 6.03 only, there shall be excluded from Consolidated Net Income any
repurchases, repayments or redemptions of Investments, proceeds realized on the sale of Investments
or return of capital to the Borrower or a Restricted Subsidiary to the extent such repurchases,
repayments, redemptions, proceeds or returns increase the amount of Restricted Payments permitted
under Section 6.03(a)(iii)(D).



     “Consolidated Total Assets” shall mean, as of any date of determination, the total amount of
assets which would appear on a consolidated balance sheet of the Borrower and its consolidated
Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP.



     “Credit Agreements” shall mean this Agreement and the Revolving Loan Credit Agreement.



     “Credit Facilities” shall mean the term loan facility and the incremental term loan facility
provided for by this Agreement.



     “Cure Right” shall mean the Borrower’s right to cure defaults in respect of the Financial
Performance Covenants as set forth in Article VII of the Revolving Loan Credit Agreement, as the
same may be amended or modified from time to time in accordance with the terms of the Revolving
Loan Credit Agreement.



     “Currency Agreement” shall mean any foreign exchange contract, currency derivative, currency
swap agreement or other similar agreement with respect to currency values.



10









 





     “Current Assets” shall mean, at any time, the consolidated current assets (other than cash and
Temporary Cash Investments) of the Borrower and the Restricted Subsidiaries.



     “Current Liabilities” shall mean, at any time, the consolidated current liabilities of the
Borrower and the Restricted Subsidiaries at such time, but excluding, without duplication, (a) the
current portion of any long-term Indebtedness, (b) outstanding revolving loans under the Revolving
Loan Credit Agreement and (c) deferred tax liabilities.



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



     “Designated Noncash Consideration” shall mean any non-cash consideration received by the
Borrower or one of its Restricted Subsidiaries in connection with an Asset Sale that is designated
as Designated Noncash Consideration pursuant to an Officers’ Certificate of the Borrower. Such
Officers’ Certificate shall state the basis of such valuation. A particular item of Designated
Noncash Consideration shall no longer be considered to be outstanding to the extent it has been
sold or liquidated for cash and the related Net Cash Proceeds are applied as required under
Section 6.05.



     “Designated Preferred Stock” shall mean Preferred Stock of the Borrower or any direct or
indirect parent entity of the Borrower (in each case, other than Disqualified Stock), that is
issued for cash (other than to the Borrower or any of its Subsidiaries or an employee stock
ownership plan or trust established by the Borrower or any of its Subsidiaries) and is so
designated as Designated Preferred Stock, pursuant to an Officers’ Certificate, on the issuance
date thereof, the cash proceeds of which are excluded from the calculation set forth in Section
6.03(a)(iii); provided, however, that if such Preferred Stock is issued by any parent, the proceeds
therefrom (net of any costs of issuance) are contributed to the common equity of the Borrower.



     “Disqualified Stock” shall mean, with respect to any Person, any Capital Stock which by its
terms (or by the terms of any security into which it is convertible or for which it is exchangeable
at the option of the holder) or upon the happening of any event (a) matures or is mandatorily
redeemable (other than redeemable only for Capital Stock of such Person which is not itself
Disqualified Stock) pursuant to a sinking fund obligation or otherwise, (b) is convertible or
exchangeable at the option of the holder for Indebtedness or Disqualified Stock, or (c) is
mandatorily redeemable or must be purchased upon the occurrence of certain events or otherwise, in
whole or in part; in each case on or prior to the 91st day following the Maturity Date; provided,
however, that any Capital Stock that would not constitute Disqualified Stock but for provisions
thereof giving holders thereof the right to require such Person to purchase or redeem such Capital
Stock upon the occurrence of an “asset sale” or “change of control” occurring prior to the 91st day
following the Maturity Date shall not constitute Disqualified Stock if (i) the “asset sale” or
“change of control” provisions applicable to such Capital Stock are not more favorable to the
holders of such Capital Stock than the terms applicable to the Loans and described in Sections 2.13
and 6.05 and Section 2.23, respectively, and (ii) any such requirement only becomes operative after
compliance with such terms applicable to the Loans, including the prepayment of any Loans tendered
pursuant thereto.



11









 





     The amount of any Disqualified Stock that does not have a fixed redemption, repayment or
repurchase price will be calculated in accordance with the terms of such Disqualified Stock as if
such Disqualified Stock were redeemed, repaid or repurchased on any date on which the amount of
such Disqualified Stock is to be determined pursuant to this Agreement; provided, however, that if
such Disqualified Stock could not be required to be redeemed, repaid or repurchased at the time of
such determination, the redemption, repayment or repurchase price will be the book value of such
Disqualified Stock as reflected in the most recent financial statements of such Person.



     “dollars” or “$” shall mean lawful money of the United States of America.



     “Domestic Restricted Subsidiary” shall mean any Restricted Subsidiary that is not a Foreign
Subsidiary.



     “Earn-Out Consideration” shall mean unsecured Indebtedness in the form of a conditional sale
arrangement or deferred purchase price incurred by the Borrower or any of its Subsidiaries as
partial consideration for an acquisition of assets in an amount not to exceed 50% of the aggregate
consideration paid for such acquisition, which Indebtedness shall be subordinated to the
Obligations.



     “EBITDA” shall mean, for any period, the sum of Consolidated Net Income; plus (a) the
following to the extent deducted in calculating such Consolidated Net Income: (i) all income tax
expense of the Borrower and its consolidated Restricted Subsidiaries, (ii) Consolidated Interest
Expense, (iii) depreciation and amortization expense of the Borrower and its consolidated
Restricted Subsidiaries (excluding amortization expense attributable to a prepaid item that was
paid in cash in a prior period), (iv) all other non-cash charges of the Borrower and its
consolidated Restricted Subsidiaries (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash expenditures in any future period), (v) any reasonable
expenses or charges incurred in connection with any Equity Offering, Permitted Investment,
acquisition, recapitalization or Indebtedness permitted to be Incurred under this Agreement (in
each case whether or not consummated) or pursuant to the Refinancing, (vi) the amount of any
business optimization expenses and restructuring charges or reserves (which, for the avoidance of
doubt, shall include retention, severance, systems establishment cost, excess pension charges,
contract termination costs, including future lease commitments, and costs to consolidate facilities
and relocate employees), (vii) any net gain or loss resulting from Hedging Obligations, (viii) the
amount of management, monitoring, consulting and advisory fees and related expenses paid by any
direct or indirect parent entity of the Borrower to the Sponsor or its Affiliates (or any accruals
relating to such fees and related expenses) during such period pursuant to the Management Agreement
to the extent such payments were actually reimbursed by the Borrower in accordance with
Section 6.06(b)(vii), and (ix) Securitization Fees, in each case for such period; less
(b) non-cash items increasing Consolidated Net Income of such Person for such period (excluding any
items which represent either the accrual of revenue in the ordinary course of business or the
reversal of any accrual of, or cash reserve for, anticipated cash charges made in any prior
period).



     Notwithstanding the foregoing, the provision for taxes based on the income or profits of, and
the depreciation and amortization and non-cash charges of, a Restricted Subsidiary shall be



12









 







added to Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion, including by reason of minority interests) that the net income or loss of such
Restricted Subsidiary was included in calculating Consolidated Net Income and only if a
corresponding amount would be permitted at the date of determination to be dividended to the
Borrower by such Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted Subsidiary or its
shareholders.



     “Environmental Laws” shall mean all former, current and future Federal, state, local and
foreign laws (including common law), treaties, regulations, rules, ordinances, codes, decrees,
judgments, directives, orders (including consent orders), and agreements in each case, relating to
protection of the environment, natural resources, human health and safety or the presence, Release
of, or exposure to, Hazardous Materials, or the generation, manufacture, processing, distribution,
use, treatment, storage, transport, recycling or handling of, or the arrangement for such
activities with respect to, Hazardous Materials.



     “Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims,
actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including
administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of or relating to (a) compliance or non-compliance with any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release of any Hazardous
Materials or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.



     “Equity Offering” shall mean any public or private sale of common stock or Preferred Stock of
the Borrower or any Parent (excluding Disqualified Stock of the Borrower), other than (a) public
offerings with respect to common stock of the Borrower or of any of its direct or indirect parent
entities registered on Form S-4 or Form S-8, (b) any such public or private sale that constitutes
an Excluded Contribution or (c) an issuance to any Subsidiary of the Borrower.



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



     “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.



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



13









 







liability under Title IV of ERISA with respect to the termination of any Plan or the
withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or
Multiemployer Plan, (e) the receipt by the Borrower or any of its ERISA Affiliates from the PBGC or
a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan, (f) the adoption of any amendment to a Plan that would
require the provision of security pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, (g) the receipt by the Borrower or any of its ERISA Affiliates of any notice, or the receipt
by any Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any notice,
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA,
(h) the occurrence of a “prohibited transaction” with respect to which the Borrower or any of the
Subsidiaries is a “disqualified Person” (within the meaning of Section 4975 of the Code) or with
respect to which the Borrower or any such Subsidiary could otherwise be liable, (i) any Foreign
Benefit Event or (j) any other event or condition with respect to a Plan or Multiemployer Plan that
could result in liability of the Borrower or any Subsidiary.



     “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.



     “Event of Default” shall have the meaning assigned to such term in Article VII.



     “Excess Cash Flow” shall mean, for any Annual Reporting Period of the Borrower, the excess, if
any, of (a) the sum, without duplication, of (i) EBITDA for such Annual Reporting Period and
(ii) reductions to noncash working capital of the Borrower and the Restricted Subsidiaries for such
Annual Reporting Period (i.e., the decrease, if any, in Current Assets minus Current Liabilities
from the beginning to the end of such Annual Reporting Period) over (b) the sum, without
duplication, of (i) the amount of any Taxes payable in cash by the Borrower and the Restricted
Subsidiaries with respect to such Annual Reporting Period, (ii) Consolidated Interest Expense for
such Annual Reporting Period paid in cash, (iii) Capital Expenditures made in cash during such
Annual Reporting Period, except to the extent financed with the proceeds of Indebtedness, equity
issuances, casualty proceeds, condemnation proceeds or other proceeds that would not be included in
EBITDA, (iv) permanent repayments of Indebtedness (other than mandatory prepayments of Loans under
Section 2.13 and Voluntary Prepayments) made by the Borrower and the Restricted Subsidiaries during
such Annual Reporting Period, but only to the extent that the Indebtedness so prepaid by its terms
cannot be reborrowed or redrawn and such prepayments do not occur in connection with a refinancing
of all or any portion of such Indebtedness, (v) the amount of management, monitoring, consulting
and advisory fees paid in cash during such Annual Reporting Period to the extent added back to
EBITDA (pursuant to clause (a)(viii) of the definition of such term) and (vi) additions to noncash
working capital for such Annual Reporting Period (i.e., the increase, if any, in Current Assets
minus Current Liabilities from the beginning to the end of such Annual Reporting Period).



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



     “Excluded Contribution” shall mean net cash proceeds or the Fair Market Value of other
property or assets, in each case received by the Borrower and its Restricted Subsidiaries from (a)



14









 







contributions to its common equity capital; and (b) the sale (other than to a Subsidiary or to
any management equity plan or stock option plan or any other management or employee benefit plan or
agreement of the Borrower or any Subsidiary) of Capital Stock (other than Disqualified Stock and
Designated Preferred Stock), in each case designated as Excluded Contributions pursuant to an
Officers’ Certificate on the date such capital contributions are made or the date such Capital
Stock is sold, as the case may be, which are excluded from the calculation set forth in
Section 6.03(a)(iii).



     “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of the Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under Section 2.21(a)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender’s failure to comply with Section 2.20(e), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 2.20(a).



     “Existing Credit Agreement” shall mean the Term Loan Credit Agreement dated as of November 30,
2005, as further amended, supplemented or otherwise modified to date, among the Borrower, Holdings,
the financial institutions party thereto and Credit Suisse, as administrative agent.



     “Existing PIK Notes” shall mean the 12% senior subordinated pay-in-kind notes due 2013 in an
initial aggregate principal amount of $25,000,000 issued by Holdings pursuant to that certain
Senior Subordinated Credit Agreement dated as of January 7, 2005, by and between Holdings, as
borrower thereunder, and Citicorp Mezzanine III, L.P. (as assignee of Court Square Capital
Limited), as lender.



     “Fair Market Value” shall mean, with respect to any asset or property, the price which could
be negotiated in an arm’s length, free-market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction. Fair Market Value will be determined in good faith by the Board of Directors, whose
determination will be conclusive and evidenced by a resolution of such Board of Directors;
provided, however, that, for purposes Section 6.03(a)(iii), if the Fair Market Value of the
property or assets in question is so determined to be in excess of $15,000,000, such determination
must be confirmed by an Independent Qualified Party. For purposes of determining the Fair Market
Value of Capital Stock, the value of the Capital Stock of a Person shall be based upon such
Person’s property and assets, exclusive of goodwill or any similar intangible asset.



15









 





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



     “Fee Letter” shall mean the Agreement Regarding Fees dated June 25, 2007, between the Borrower
and the Administrative Agent.



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



     “Financial Performance Covenants” shall mean the covenants of the Borrower set forth in
Sections 6.11 and 6.12 of the Revolving Loan Credit Agreement, as the same may be amended or
modified from time to time in accordance with the terms of the Revolving Loan Credit Agreement.



     “Foreign Benefit Event” shall mean, with respect to any Foreign Pension Plan, (a) the
existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in
excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the
failure to make the required contributions or payments, under any applicable law, on or before the
due date for such contributions or payments, (c) the receipt of a notice by a Governmental
Authority relating to the intention to terminate any such Foreign Pension Plan or to appoint a
trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency
of any such Foreign Pension Plan, (d) the incurrence of any liability in excess of $2,000,000 by
Holdings or any Subsidiary under applicable law on account of the complete or partial termination
of such Foreign Pension Plan or the complete or partial withdrawal of any participating employer
therein, or (e) the occurrence of any transaction that is prohibited under any applicable law and
that could reasonably be expected to result in the incurrence of any liability by Holdings or any
of the Subsidiaries, or the imposition on Holdings or any of the Subsidiaries of any fine, excise
tax or penalty resulting from any noncompliance with any applicable law, in each case in excess of
$2,000,000.



     “Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.



     “Foreign Pension Plan” shall mean any benefit plan that under applicable law is required to be
funded through a trust or other funding vehicle other than a trust or funding vehicle maintained
exclusively by a Governmental Authority.



     “Foreign Subsidiary” shall mean any Restricted Subsidiary of the Borrower that is not
organized under the laws of the United States of America or any State thereof or the District of
Columbia.



16









 





     “GAAP” shall mean generally accepted accounting principles in the United States of America
applied on a consistent basis, including those set forth in:



     (a) the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants;



     (b) statements and pronouncements of the Financial Accounting Standards Board;



     (c) such other statements by such other entity as approved by a significant segment of the
accounting profession; and



     (d) the rules and regulations of the Securities and Exchange Commission governing the
inclusion of financial statements (including pro forma financial statements) in periodic reports
required to be filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements from the accounting
staff of the Securities and Exchange Commission.



     “Governmental Authority” shall mean any Federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body.



     “Granting Lender” shall have the meaning assigned to such term in Section 9.04(i).



     “Guarantee” shall mean any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any Person and any obligation, direct or indirect,
contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to
take-or-pay or to maintain financial statement conditions or otherwise), or (b) entered into for
the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in part); provided,
however, that the term “Guarantee” shall not include endorsements for collection or deposit in the
ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.



     “Guarantee, Collateral and Intercreditor Agreement” shall mean the Guarantee, Collateral and
Intercreditor Agreement, substantially in the form of Exhibit D, among the Borrower, Holdings, the
Subsidiaries party thereto, the Collateral Agent for the benefit of the Secured Parties, the
Administrative Agent and the administrative agent under the Revolving Loan Credit Agreement.



     “Guarantors” shall mean Holdings and the Subsidiary Guarantors.



     “Hazardous Materials” shall mean (a) any petroleum products or byproducts and all other
hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, chlorofluorocarbons and all other ozone-depleting substances and (b) any chemical,
material, substance or waste that is prohibited, limited or regulated by or pursuant to any
Environmental Law.



17









 





     “Hedging Obligations” of any Person shall mean the obligations of such Person pursuant to any
Interest Rate Agreement, Currency Agreement or Commodity Agreement.



     “Holdings” shall have the meaning assigned to such term in the preamble to this Agreement.



     “Incremental Borrowing” shall mean a Borrowing comprised of Incremental Loans.



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



     “Incremental Loan Amount” shall mean, at any time, the excess, if any, of (a) $75,000,000 over
(b) the aggregate amount of all Incremental Loan Commitments established prior to such time
pursuant to Section 2.22.



     “Incremental Loan Assumption Agreement” shall mean an Incremental Loan Assumption Agreement
among, and in form and substance reasonably satisfactory to, the Borrower, the Administrative Agent
and one or more Incremental Lenders.



     “Incremental Loan Commitment” shall mean the commitment of any Lender, established pursuant to
Section 2.22, to make Incremental Loans to the Borrower.



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



     “Incremental Loan Repayment Dates” shall mean the dates scheduled for the repayment of
principal of any Incremental Loan, as set forth in the applicable Incremental Loan Assumption
Agreement.



     “Incremental Loans” shall mean Loans made by one or more Lenders to the Borrower pursuant to
Section 2.01(b). Incremental Loans may be made in the form of additional Loans or, to the extent
permitted by Section 2.22 and provided for in the relevant Incremental Loan Assumption Agreement,
Other Loans.



     “Incur” shall mean issue, assume, Guarantee, incur or otherwise become liable for; provided,
however, that any Indebtedness of a Person existing at the time such Person becomes a Restricted
Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Restricted Subsidiary. The term “Incurrence” when
used as a noun shall have a correlative meaning. Solely for purposes of determining compliance
with Section 6.01, (a) amortization of debt discount or the accretion of principal with respect to
a non-interest bearing or other discount security, (b) the payment of regularly scheduled interest
in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled
dividends on Capital Stock in the form of additional Capital Stock of the same class and with the
same terms and (c) the obligation to pay a premium in respect of Indebtedness arising in connection
with the issuance of a notice of redemption or making of a mandatory offer to purchase such
Indebtedness, in each case will not be deemed to be the Incurrence of Indebtedness.



18









 





     “Indebtedness” shall mean, with respect to any Person on any date of determination (without
duplication): (a) the principal in respect of (i) indebtedness of such Person for money borrowed
and (ii) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable, including, in each case, any premium on such
indebtedness to the extent such premium has become due and payable, (b) all Capital Lease
Obligations of such Person and all Attributable Debt in respect of Sale/ Leaseback Transactions
entered into by such Person, (c) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such Person and all obligations of
such Person under any title retention agreement (but excluding any accounts payable or other
liability to trade creditors arising in the ordinary course of business and accrued expenses);
(d) all obligations of such Person for the reimbursement of any obligor on any letter of credit,
bankers’ acceptance or similar credit transaction (other than obligations with respect to letters
of credit securing obligations (other than obligations described in clauses (a) through (c) above)
entered into in the ordinary course of business of such Person to the extent such letters of credit
are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than
the tenth Business Day following payment on the letter of credit), (e) the amount of all
obligations of such Person with respect to the redemption, repayment or other repurchase of any
Disqualified Stock of such Person or, with respect to any Preferred Stock of any Subsidiary of such
Person, the liquidation preference with respect to such Preferred Stock (but excluding, in each
case, any accrued dividends), (f) all obligations of the type referred to in clauses (a) through
(e) of other Persons and all dividends of other Persons for the payment of which, in either case,
such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise,
including by means of any Guarantee, (g) all obligations of the type referred to in clauses (a)
through (f) of other Persons secured by any Lien on any property or asset of such Person (whether
or not such obligation is assumed by such Person) (other than a pledge of Capital Stock of an
Unrestricted Subsidiary to secure Indebtedness of such Unrestricted Subsidiary), the amount of such
obligation being deemed to be the lesser of the Fair Market Value of such property or assets and
the amount of the obligation so secured, and (h) to the extent not otherwise included in this
definition, Hedging Obligations of such Person; provided, however, that notwithstanding the
foregoing, Indebtedness shall be deemed not to include (i) contingent obligations incurred in the
ordinary course of business and not in respect of borrowed money, (ii) prepaid revenues,
(iii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy
warranty or other unperformed obligations of the respective seller, or (iv) obligations under or in
respect of a Qualified Securitization Financing. Notwithstanding the foregoing, in connection with
the purchase by the Borrower or any Restricted Subsidiary of any business, the term “Indebtedness”
will exclude post-closing payment adjustments and indemnification payments to which the seller may
become entitled to the extent such payment is determined by a final closing balance sheet or such
payment depends on the performance of such business after the closing; provided, however, that, at
the time of closing, the amount of any such payment is not determinable and, to the extent such
payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter.



     The amount of Indebtedness of any Person at any date shall be the outstanding balance at such
date of all obligations as described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations as described above at such
date; provided, however, that the amount outstanding at any time of any Indebtedness issued with
original issue discount shall be deemed to be the accreted value thereof at such time.



19









 





     “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.



     “Independent Qualified Party” shall mean an investment banking firm, accounting firm or
appraisal firm of national standing; provided, however, that such firm is not an Affiliate of the
Borrower.



     “Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business Day of
each March, June, September and December, and (b) with respect to any Eurodollar Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of
a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day that
would have been an Interest Payment Date had successive Interest Periods of three months’ duration
been applicable to such Borrowing.



     “Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 months
thereafter, as the Borrower may elect; provided, however, that if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day. Interest shall
accrue from and including the first day of an Interest Period to but excluding the last day of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.



     “Interest Rate Agreement” shall mean any interest rate swap agreement, interest rate cap
agreement or other financial agreement or arrangement with respect to exposure to interest rates.



     “Investment” in any Person shall mean any direct or indirect advance, loan (other than
advances to customers in the ordinary course of business that are recorded as accounts receivable
on the balance sheet of the lender) or other extensions of credit (including by way of Guarantee or
similar arrangement) or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of others), or any
purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by such
Person. If the Borrower or any Restricted Subsidiary issues, sells or otherwise disposes of any
Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto,
such Person is no longer a Restricted Subsidiary, any Investment by the Borrower or any Restricted
Subsidiary in such Person remaining after giving effect thereto will be deemed to be a new
Investment at such time. The acquisition by the Borrower or any Restricted Subsidiary of a Person
that holds an Investment in a third Person will be deemed to be an Investment by the Borrower or
such Restricted Subsidiary in such third Person at such time. Except as otherwise provided for
herein, the amount of an Investment shall be its fair market value at the time the Investment is
made and without giving effect to subsequent changes in value.



     For purposes of the definition of “Unrestricted Subsidiary,” the definition of “Restricted
Payment” and Section 6.03, (a) “Investment” shall include the portion (proportionate to the
Borrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of any



20









 







Subsidiary of the Borrower at the time that such Subsidiary is designated an Unrestricted
Subsidiary (provided, however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Borrower shall be deemed to continue to have a permanent “Investment” in an
Unrestricted Subsidiary equal to an amount (if positive) equal to (i) the Borrower’s “Investment”
in such Subsidiary at the time of such redesignation less (ii) the portion (proportionate
to the Borrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of
such Subsidiary at the time of such redesignation), and (b) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer, in
each case as determined in good faith by the Board of Directors.



     “Lenders” shall mean (a) the Persons listed on Schedule 2.01 (other than any such Person that
has ceased to be a party hereto pursuant to an Assignment and Acceptance) and (b) any Person that
has become a party hereto pursuant to an Assignment and Acceptance.



     “LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the
average of the interest rates per annum equal to the offered rate for deposits in United States
Dollars for an amount approximately equal to the principal amount of, and for a length of time
approximately equal to, the Interest Period for, the Eurodollar Borrowing sought by the Borrower,
which rate appears on Telerate Page 3750 (or such other page as may replace that page in that
service) at approximately 11:00 a.m. (London time) two (2) Business Days before the first day of
such Interest Period; provided that (i) if more than one such offered rate appears on the Reuters
Screen LIBOR01 page, LIBO Rate shall be the arithmetic average (rounded upward to the nearest
one-hundredth (1/100) of one percent (1%)) of such offered rates, or (ii) if Reuters Screen LIBOR01
Page is not available, LIBO Rate shall be the average of the interest rates per annum at which
deposits in United States Dollars are offered to the Administrative Agent (or an affiliate thereof)
by two (2) leading banks (rounded upward to the nearest one-hundredth (1/100) of one percent (1%))
in the London LIBO Rate interbank borrowing market at approximately 11:00 a.m. (London time) two
(2) Business Days before the first day of such Interest Period, in an amount approximately equal to
the principal amount of, and for a length of time approximately equal to the Interest Period for,
the Eurodollar Borrowing sought by the Borrower.



     “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the foregoing) relating to
such asset and (c) in the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.



     “Loan Documents” shall mean this Agreement, the Security Documents, each Incremental Loan
Assumption Agreement and the promissory notes, if any, executed and delivered pursuant to
Section 2.04(e).



     “Loan Parties” shall mean the Borrower and the Guarantors.



21









 





     “Loans” shall mean the term loans made by the Lenders to the Borrower pursuant to clause (a)
of Section 2.01. Unless the context shall otherwise require, the term “Loans” shall include any
Incremental Loans made to the Borrower pursuant to clause (b) of Section 2.01.



     “Management Agreement” shall mean the Advisory Agreement dated as of December 12, 2004 among
GMH Holding Company, GMH Acquisition Corp. and CVC Management LLC.



     “Margin Stock” shall have the meaning assigned to such term in Regulation U.



     “Material Adverse Effect” shall mean (a) a materially adverse effect on the business, assets,
liabilities, operations, financial condition or operating results of the Borrower and the
Subsidiaries, taken as a whole, (b) a material impairment of the ability of the Borrower and the
other Loan Parties (taken as a whole) to perform their obligations under any Loan Document or (c) a
material impairment of the rights of or benefits available to the Lenders under any Loan Document.



     “Material Indebtedness” shall mean (a) Indebtedness incurred by the Borrower or any Guarantor
pursuant to the Revolving Loan Credit Agreement and (b) any other Indebtedness (other than the
Loans) or Hedging Obligations, of any one or more of Holdings, the Borrower, any Subsidiary
Guarantor or any Significant Subsidiary in an aggregate principal amount exceeding $7,500,000. For
purposes of determining Material Indebtedness, the “principal amount” of any Hedging Obligations at
any time shall be the maximum aggregate amount (giving effect to any netting agreements) that
Holdings, the Borrower or any such Subsidiary would be required to pay if such Hedging Obligations
were terminated at such time.



     “Maturity Date” shall mean November 30, 2012.



     “Monthly Reporting Period” shall mean (a) prior to the delivery of a Notice of Change of
Reporting Period, any of the initial twelve four-week reporting periods during an Annual Reporting
Period or the final four- or five-week reporting period during such an Annual Reporting Period, and
(b) after delivery of a Notice of Change of Reporting Period, each monthly period thereafter ending
on the last day of such month.



     “Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereto.



     “Mortgaged Properties” shall have the meaning assigned to such term in Section 5.12(a).



     “Mortgages” shall mean the mortgages, deeds of trust, leasehold mortgages, assignments of
leases and rents, modifications and other security documents delivered pursuant to Section 5.12,
each in form and substance reasonably satisfactory to the Collateral Agent.



     “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



     “Net Cash Proceeds” shall mean (a) with respect to any Asset Sale, the cash proceeds
(including cash proceeds subsequently received (as and when received) in respect of noncash
consideration initially received), net of (i) selling expenses (including reasonable broker’s fees
or commissions, legal fees, transfer and similar taxes and the Borrower’s good faith estimate of



22









 







income taxes paid or payable in connection with such sale), (ii) amounts provided as a
reserve, in accordance with GAAP, against any liabilities under any indemnification obligation,
purchase price adjustment or contingent liability (reasonably estimated by the Borrower to be
payable to third parties) associated with such Asset Sale (provided that, to the extent and at the
time any such amounts are released from such reserve, such amounts shall constitute Net Cash
Proceeds) and (iii) the principal amount, premium or penalty, if any, interest and other amounts on
any Indebtedness for borrowed money which is secured by the asset sold in such Asset Sale and which
is required to be repaid with such proceeds (other than any such Indebtedness assumed by the
purchaser of such asset); provided, however, that, if (x) the Borrower shall deliver a certificate
of a Financial Officer to the Administrative Agent at the time of receipt thereof setting forth the
Borrower’s intent to reinvest such proceeds in (1) productive assets of a kind then used or usable
in the business of the Borrower and its Subsidiaries, (2) assets constituting all or substantially
all the assets of a Person or a line of business, division or segment of a Person or (3) not less
than 100% of the Capital Stock (other than directors’ qualifying shares) of a Person, in each case
within 270 days of receipt of such proceeds, and (y) no Default or Event of Default shall have
occurred and shall be continuing at the time of such certificate or at the proposed time of the
application of such proceeds, such proceeds shall not constitute Net Cash Proceeds except to the
extent not so used or contractually committed to be so used at the end of such 270-day period (it
being understood that if any portion of such proceeds are not so used within such 270-day period
because such amount is contractually committed to be used and subsequent to such date such contract
is terminated or expires without such portion being so used, such remaining portion shall
constitute Net Cash Proceeds as of the date of such termination or expiration without giving effect
to this clause (y)), at which time such proceeds shall be deemed to be Net Cash Proceeds; and
(b) with respect to any issuance or incurrence of Indebtedness or any issuance of Capital Stock,
the cash proceeds thereof, net of all taxes and customary fees, commissions, discounts, costs and
other expenses incurred in connection therewith.



     “Notice of Change of Reporting Period” shall mean a written notice delivered to the
Administrative Agent by the Borrower stating that, as of the date specified therein, the Borrower
will adopt a twelve-month fiscal year ending on either March 31, June 30, September 30 or
December 31.



     “Obligations” shall mean the Revolving Loan Obligations and the Term Loan Obligations.



     “Officer” shall mean the chairman of the board, the president, any vice president, the
treasurer or the secretary of the Borrower.



     “Officers’ Certificate” shall mean a certificate signed by two Officers.



     “Opinion of Counsel” shall mean a written opinion from legal counsel who is acceptable to the
Administrative Agent. Such counsel may be an employee of or counsel to the Borrower or the
Administrative Agent.



     “Other Loans” shall have the meaning assigned to such term in Section 2.22(a).



23









 





     “Other Taxes” shall mean 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 under any Loan
Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.



     “Parent” means Gallarus Media Holdings, Inc., a Delaware corporation and its successors, and
each other Person that directly or indirectly owns 100% of the Voting Stock of the Borrower.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.



     “Perfection Certificate” shall mean the Perfection Certificate substantially in the form of
Exhibit B to the Guarantee, Collateral and Intercreditor Agreement.



     “Permitted Cure Securities” shall mean Qualified Capital Stock of Holdings issued to one or
more of the Permitted Holders (a) that is common stock of Holdings or (b) upon which all dividends
or distributions, at the election of Holdings, may be payable in additional shares of such
Qualified Capital Stock, the proceeds of which are contributed by Holdings to the Borrower as cash
common equity.



     “Permitted Holders” shall mean the Sponsor, its Affiliates and/or investment funds under
common control with the Sponsor and/or limited partners of the Sponsor for whom the Sponsor has
been assigned voting rights.



     “Permitted Investment” shall mean an Investment by the Borrower or any Restricted Subsidiary
in:



     (a) the Borrower, a Restricted Subsidiary or a Person that will, upon the making of such
Investment, become a Restricted Subsidiary; provided, however, that the primary business of such
Restricted Subsidiary is a Related Business;



     (b) another Person if, as a result of such Investment, such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all its assets to, the
Borrower or a Restricted Subsidiary; provided, however, that such Person’s primary business is a
Related Business;



     (c) cash and Temporary Cash Investments;



     (d) receivables owing to the Borrower or any Restricted Subsidiary if created or acquired in
the ordinary course of business and payable or dischargeable in accordance with customary trade
terms; provided, however, that such trade terms may include such concessionary trade terms as the
Borrower or any such Restricted Subsidiary deems reasonable under the circumstances;



     (e) payroll, travel and similar advances to cover matters that are expected at the time of
such advances ultimately to be treated as expenses for accounting purposes and that are made in the
ordinary course of business;



24









 





     (f) loans or advances to employees made in the ordinary course of business consistent with
past practices of the Borrower or such Restricted Subsidiary;



     (g) stock, obligations or securities received in settlement of debts created in the ordinary
course of business and owing to the Borrower or any Restricted Subsidiary or in satisfaction of
judgments;



     (h) any Person to the extent such Investment represents the non-cash portion of the
consideration received for (i) an Asset Sale as permitted pursuant to Section 6.05 or (ii) a
disposition of assets not constituting an Asset Sale;



     (i) any Person where such Investment was acquired by the Borrower or any of its Restricted
Subsidiaries (i) in exchange for any other Investment or accounts receivable held by the Borrower
or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other Investment or accounts receivable or
(ii) as a result of a foreclosure by the Borrower or any of its Restricted Subsidiaries with
respect to any secured Investment or other transfer of title with respect to any secured Investment
in default;



     (j) any Person to the extent such Investments consist 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 or any Restricted
Subsidiary;



     (k) any Person to the extent such Investments consist of Hedging Obligations otherwise
permitted under Section 6.01;



     (l) any Person to the extent such Investment exists on the Closing Date, and any extension,
modification or renewal of any such Investments existing on the Closing Date, but only to the
extent not involving additional advances, contributions or other Investments of cash or other
assets or other increases thereof (other than as a result of the accrual or accretion of interest
or original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the
terms of such Investment as in effect on the Closing Date);



     (m) Investments the payment for which consists of Capital Stock of the Borrower or any of its
direct or indirect parent entities (in each case exclusive of Disqualified Stock);



     (n) Investments consisting of licensing of intellectual property pursuant to joint marketing
arrangements with other Persons;



     (o) any Investment in a Securitization Subsidiary or any Investment by a Securitization
Subsidiary in any other Person in connection with a Qualified Securitization Financing, including
Investments of funds held in accounts permitted or required by the arrangements governing such
Qualified Securitization Financing or any related Indebtedness; provided, however, that any
Investment in a Securitization Subsidiary is in the form of a purchase money note, contribution of
additional Securitization Assets or an equity interest;



     (p) Investments consisting of the transfer of accounts receivable and related assets; and



25









 





     (q) Persons to the extent such Investments, when taken together with all other Investments
made pursuant to this clause (q) and outstanding on the date such Investment is made, do not exceed
$15,000,000; provided, however, that if an Investment permitted pursuant to this clause (q) is made
in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and
such Person becomes a Restricted Subsidiary after such date, the lesser of the amount of (i) such
Investment and (ii) the portion (proportionate to the Borrower’s equity interest in such
Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time such Person
becomes a Restricted Subsidiary, shall thereafter be deemed to have been made pursuant to clause
(a) above and shall cease to have been made pursuant to this clause (q).



     “Permitted Lien” shall mean, with respect to any Person:



     (a) Liens on property or assets of the Borrower and its Subsidiaries existing on the date
hereof and set forth in Schedule 1.01(b); provided that such Liens shall secure only those
obligations which they secure on the date hereof;



     (b) any Lien created under the Loan Documents;



     (c) any Lien created under the Revolving Loan Credit Agreement; provided that such Liens do
not apply to any asset other than Collateral that is subject to a pari passu Lien granted under a
Security Document to secure the Term Loan Obligations;



     (d) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary; provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition, (ii) such Lien does not apply to any other property or assets of
Holdings, the Borrower or any Subsidiary and (iii) such Lien secures only those obligations which
it secures on the date of such acquisition;



     (e) Liens for taxes not yet due or which are being contested in compliance with Section 5.03;



     (f) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business and securing obligations that are not due and payable or
which are being contested in compliance with Section 5.03;



     (g) pledges and deposits made in the ordinary course of business in compliance with workmen’s
compensation, unemployment insurance and other social security laws or regulations;



     (h) deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary
course of business;



     (i) zoning restrictions, easements, rights-of-way, restrictions on use of real property and
other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are
not substantial in amount and do not materially detract from the value of the property subject



26









 







thereto or interfere with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;



     (j) licenses, leases or subleases granted by the Borrower or any Subsidiary to third Persons
in the ordinary course of business not interfering in any material respect with the business of the
Borrower or any Subsidiary;



     (k) Liens arising solely by virtue of any statutory or common law provision relating to
bankers’ liens, rights of setoff or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution;



     (l) Liens arising from precautionary Uniform Commercial Code financing statements filed in
respect of operating leases;



     (m) Liens securing Indebtedness incurred in connection with Indebtedness of the Borrower or
any Subsidiary arising in connection with the financing by insurance providers of insurance
premiums in the ordinary course of business; provided that such Liens attach only to the insurance
policies that are the subject of such Indebtedness and the proceeds thereof;



     (n) purchase money security interests in real property, improvements thereto or equipment
hereafter acquired (or, in the case of improvements, constructed) by the Borrower or any
Subsidiary; provided that (i) such security interests secure Indebtedness permitted by
Section 6.01, (ii) such security interests are incurred, and the Indebtedness secured thereby is
created, within 90 days after such acquisition (or construction), (iii) the Indebtedness secured
thereby does not exceed 100% of the lesser of the cost or the fair market value of such real
property, improvements or equipment at the time of such acquisition (or construction) and (iv) such
security interests do not apply to any other property or assets of the Borrower or any Subsidiary;
and



     (o) Liens arising out of judgments or awards in respect of which Holdings, the Borrower or
any of the Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review in
respect of which there shall be secured a subsisting stay of execution pending such appeal or
proceedings; provided that the aggregate amount of all such judgments or awards (and any cash and
the fair market value of any property subject to such Liens) does not exceed $7,500,000 at any time
outstanding.



     “Person” shall mean any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.



     “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or Section 307 of ERISA, and in
respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.



     “Preferred Stock”, as applied to the Capital Stock of any Person, shall mean Capital Stock of
any class or classes (however designated) which is preferred as to the payment of



27









 







dividends or distributions, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other
class of such Person.



     “Prime Rate” shall mean the rate of interest per annum determined from time to time by the
Administrative Agent as its prime rate in effect at its office in New York, New York and notified
to the Borrower.



     “Products” shall mean any products developed, acquired, produced, marketed or promoted by the
Borrower or any of its Subsidiaries in connection with the conduct of a Related Business.



     “Qualified Capital Stock” of any person shall mean any Capital Stock of such person that is
not Disqualified Stock.



     “Qualified Securitization Financing” shall mean any Securitization Financing of a
Securitization Subsidiary that meets the following conditions: (a) the Board of Directors shall
have determined in good faith that such Qualified Securitization Financing (including financing
terms, covenants, termination events and other provisions) is in the aggregate economically fair
and reasonable to the Borrower and the Securitization Subsidiary, (b) all sales of Securitization
Assets and related assets to the Securitization Subsidiary are made at fair market value (as
determined in good faith by the Borrower) and (iii) the financing terms, covenants, termination
events and other provisions thereof shall be market terms (as determined in good faith by the
Borrower) and may include Standard Securitization Undertakings. The grant of a security interest
in any Securitization Assets of the Borrower or any of its Restricted Subsidiaries (other than a
Securitization Subsidiary) to secure Indebtedness under the Credit Agreements shall not be deemed a
Qualified Securitization Financing.



     “Quarterly Reporting Period” shall mean (a) prior to the delivery of a Notice of Change of
Reporting Period, any of the first three twelve-week reporting periods beginning on the day after
the last Sunday in March of any calendar year and ending in each of June, September and December,
respectively, of such calendar year and the immediately following sixteen- or seventeen-week
reporting period ending on the last Sunday in March of each calendar year, and (b) after the
delivery of a Notice of Change of Reporting Period, any of the three-month periods ending on
March 31, June 30, September 30 and December 31 of each year.



     “Refinance” shall mean, in respect of any Indebtedness, to refinance, extend, renew, refund,
repay, prepay, purchase, redeem, defease or retire, or to issue other Indebtedness in exchange or
replacement for, such Indebtedness. “Refinanced” and “Refinancing” shall have correlative
meanings.



     “Refinancing Indebtedness” shall mean Indebtedness that Refinances any Indebtedness of the
Borrower or any Restricted Subsidiary existing on the Closing Date or Incurred in compliance with
this Agreement, including Indebtedness that Refinances Refinancing Indebtedness; provided, however,
that (a) such Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of
the Indebtedness being Refinanced, (b) such Refinancing Indebtedness has an Average Life at the
time such Refinancing Indebtedness is Incurred that is



28









 







equal to or greater than the Average Life of the Indebtedness being Refinanced, (c) such
Refinancing Indebtedness has an aggregate principal amount (or if Incurred with original issue
discount, an aggregate issue price) that is equal to or less than the aggregate principal amount
(or if Incurred with original issue discount, the aggregate accreted value) then outstanding (plus
fees and expenses, including any premium and defeasance costs) under the Indebtedness being
Refinanced; and (d) if the Indebtedness being Refinanced is subordinated in right of payment to the
Obligations, such Refinancing Indebtedness is subordinated in right of payment to the Obligations
at least to the same extent as the Indebtedness being Refinanced; provided further, however, that
Refinancing Indebtedness shall not include (i) Indebtedness of a Subsidiary (other than a
Subsidiary Guarantor) that Refinances Indebtedness of the Borrower or (ii) Indebtedness of the
Borrower or a Restricted Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary.



     “Register” shall have the meaning assigned to such term in Section 9.04(d).



     “Regulation T” shall mean Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Regulation U” shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Regulation X” shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Related Business” shall mean any business in which the Borrower or any of the Restricted
Subsidiaries was engaged on the Closing Date and any business related, ancillary or complementary
to such business.



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



     “Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates
and the respective directors, trustees, officers, employees, agents and advisors of such Person and
such Person’s Affiliates.



     “Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or
within or upon any building, structure, facility or fixture.



     “Repayment Date” shall have the meaning assigned to such term in Section 2.11.



     “Required Lenders” shall mean, at any time, Lenders having Loans and unused Commitments
representing more than 50% of the sum of all Loans outstanding and unused Commitments at such time.



29









 





     “Responsible Officer” of any Person shall mean any executive officer or Financial Officer of
such Person and any other officer or similar official thereof responsible for the administration of
the obligations of such Person in respect of this Agreement.



     “Restricted Payment” shall mean, with respect to any Person, (a) the declaration or payment of
any dividends or any other distributions of any sort in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving such Person) or similar payment to
the direct or indirect holders of its Capital Stock (other than (i) dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock), (ii) dividends or
distributions payable solely to the Borrower or a Restricted Subsidiary and (iii) pro rata
dividends or other distributions made by a Subsidiary that is not a Wholly Owned Subsidiary to
minority shareholders (or owners of an equivalent interest in the case of a Subsidiary that is an
entity other than a corporation)), (b) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of any Capital Stock of the Borrower held by any Person (other
than by a Restricted Subsidiary) or of any Capital Stock of a Restricted Subsidiary held by any
Affiliate of the Borrower (other than by a Restricted Subsidiary), including in connection with any
merger or consolidation and including the exercise of any option to exchange any Capital Stock
(other than into Capital Stock of the Borrower that is not Disqualified Stock); (c) the purchase,
repurchase, redemption, defeasance or other acquisition or retirement for value, prior to scheduled
maturity, scheduled repayment or scheduled sinking fund payment of any Subordinated Obligations of
the Borrower or any Subsidiary Guarantor (other than (i) from the Borrower or a Restricted
Subsidiary or (ii) the purchase, repurchase, redemption, defeasance or other acquisition or
retirement of Subordinated Obligations purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one year of the date
of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or
(d) the making of any Investment (other than a Permitted Investment) in any Person.



     “Restricted Subsidiary” shall mean any subsidiary of the Borrower that is not an Unrestricted
Subsidiary.



     “Revolving Loan Credit Agreement” shall mean the Revolving Loan Credit Agreement dated as of
July 20, 2007, among the Borrower, Holdings, the lenders party thereto and Toronto Dominion (Texas)
LLC, as administrative agent and collateral agent, together with the related documents thereto
(including the revolving loans thereunder, any guarantees and security documents), as amended,
extended, renewed, restated, supplemented or otherwise modified (in whole or in part, and without
limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and
any agreement (and related document), including an indenture, governing Indebtedness incurred to
Refinance, in whole or in part, the borrowings and commitments then outstanding or permitted to be
outstanding under such credit agreement or successor credit agreements, whether by the same or any
other lender, investor or group of lenders or investors.



     “Revolving Loan Obligations” shall mean all obligations defined as “Revolving Loan
Obligations” in the Guarantee, Collateral and Intercreditor Agreement and the other Security
Documents.



30









 





     “Revolving Loan Secured Parties” shall have the meaning assigned to such term in the
Guarantee, Collateral and Intercreditor Agreement.



     “Sale/Leaseback Transaction” shall mean an arrangement relating to property owned by the
Borrower or a Restricted Subsidiary on the Closing Date or thereafter acquired by the Borrower or a
Restricted Subsidiary whereby the Borrower or a Restricted Subsidiary transfers such property to a
Person and the Borrower or a Restricted Subsidiary leases it from such Person.



     “Secured Parties” shall mean the Revolving Loan Secured Parties and the Term Loan Secured
Parties.



     “Securities Act” shall mean the U.S. Securities Act of 1933, as amended.



     “Securitization Assets” shall mean any accounts receivable or other revenue streams from
Products subject to a Qualified Securitization Financing.



     “Securitization Fees” shall mean reasonable distributions or payments made directly or by
means of discounts with respect to any participation interest issued or sold in connection with,
and other fees paid to a Person that is not a Securitization Subsidiary in connection with any
Qualified Securitization Financing.



     “Securitization Financing” shall mean any transaction or series of transactions that may be
entered into by the Borrower or any of its Subsidiaries pursuant to which the Borrower or any of
its Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization Subsidiary (in the
case of a transfer by the Borrower or any of its Subsidiaries) and (b) any other Person (in the
case of a transfer by a Securitization Subsidiary), or may grant a security interest in, any
Securitization Assets (whether now existing or arising in the future) of the Borrower or any of its
Subsidiaries, and any assets related thereto including all collateral securing such Securitization
Assets, all contracts and all guarantees or other obligations in respect of such Securitization
Assets, proceeds of such Securitization Assets and other assets that are customarily transferred or
in respect of which security interests are customarily granted in connection with asset
securitization transactions involving Securitization Assets and any Hedging Obligations entered
into by the Borrower or any such Subsidiary in connection with such Securitization Assets.



     “Securitization Repurchase Obligation” shall mean any obligation of a seller of Securitization
Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a
result of a breach of a representation, warranty or covenant or otherwise, including as a result of
a receivable or portion thereof becoming subject to any asserted defense, dispute, off set or
counterclaim of any kind as a result of any action taken by, any failure to take action by or any
other event relating to the seller.



     “Securitization Subsidiary” shall mean a Wholly Owned Subsidiary of the Borrower (or another
Person formed for the purposes of engaging in a Qualified Securitization Financing in which the
Borrower or any Subsidiary of the Company makes an Investment and to which the Borrower or any
Subsidiary of the Borrower transfers Securitization Assets and related assets) that engages in no
activities other than in connection with the financing of Securitization Assets of the Borrower or
its Subsidiaries, all proceeds thereof and all rights (contingent and other), collateral and other
assets relating thereto, and any business or activities incidental or related to



31









 







such business, and which is designated by the Board of Directors or such other Person (as
provided below) as a Securitization Subsidiary and (a) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which (i) is guaranteed by the Borrower or any other
Subsidiary of the Borrower (excluding Guarantees of obligations (other than the principal of, and
interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is recourse to
or obligates the Borrower or any other Subsidiary of the Borrower in any way other than pursuant to
Standard Securitization Undertakings or (iii) subjects any property or asset of the Borrower or any
other Subsidiary of the Borrower, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard Securitization Undertakings, (b) with which
neither the Borrower nor any other Subsidiary of the Borrower has any material contract, agreement,
arrangement or understanding other than on terms which the Borrower reasonably believes to be no
less favorable to the Borrower or such Subsidiary than those that might be obtained at the time
from Persons that are not Affiliates of the Borrower and (c) to which neither the Borrower nor any
other Subsidiary of the Borrower has any obligation to maintain or preserve such entity’s financial
condition or cause such entity to achieve certain levels of operating results. Any such
designation by the Board of Directors or such other Person shall be evidenced to the Administrative
Agent by delivery to the Administrative Agent of a certified copy of the resolution of the Board of
Directors or such other Person giving effect to such designation and an Officer’s Certificate
certifying that such designation complied with the foregoing conditions.



     “Security Documents” shall mean the Mortgages, the Guarantee, Collateral and Intercreditor
Agreement and each of the security agreements, mortgages and other instruments and documents
executed and delivered pursuant to any of the foregoing or pursuant to Section 5.12.



     “Senior Indebtedness” shall mean, with respect to any person, (a) Indebtedness of such Person,
whether outstanding on the Closing Date or thereafter Incurred, and (b) all other obligations of
such Person (including interest accruing on or after the filing of any petition in bankruptcy or
for reorganization relating to such Person whether or not post-filing interest is allowed in such
proceeding) in respect of Indebtedness described in clause (a) above, unless, in the case of
clauses (a) and (b), in the instrument creating or evidencing the same or pursuant to which the
same is outstanding, it is provided that such Indebtedness or other obligations are subordinate in
right of payment to the Term Loans or the Subsidiary Guarantee of such Person, as the case may be;
provided, however, that Senior Indebtedness shall not include: (i) any obligation of such Person to
the Borrower or any Subsidiary, (ii) any liability for Federal, state, local or other taxes owed or
owing by such Person, (iii) any accounts payable or other liability to trade creditors arising in
the ordinary course of business (including guarantees thereof or instruments entering such
liabilities), or (iv) any Indebtedness or other obligation of such Person which is subordinate or
junior in any respect to any other Indebtedness or other obligation of such Person.



     “Senior Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) the
aggregate amount of (i) Senior Indebtedness of the Borrower and its Restricted Subsidiaries as of
such date of determination less (ii) the aggregate amount of cash and cash equivalents of
the Borrower and its Restricted Subsidiaries as of such date of determination to (b) EBITDA for the
most recent four consecutive Quarterly Reporting Periods for which internal financial statements



32









 







are available prior to such date of determination (the “Reference Period”); provided, however,
that (i) if the transaction giving rise to the need to calculate the Senior Leverage Ratio is an
Incurrence of Senior Indebtedness, the amount of such Indebtedness and the amount of cash and cash
equivalents shall be calculated after giving effect on a pro forma basis to such Senior
Indebtedness and the use of proceeds of such Senior Indebtedness, (ii) if any Senior Indebtedness
is to be repaid, repurchased, defeased or otherwise discharged on the date of the transaction
giving rise to the need to calculate the Senior Leverage Ratio (other than, in each case, Senior
Indebtedness Incurred under any revolving credit agreement unless commitments thereunder are
permanently reduced), the aggregate amount of Senior Indebtedness and cash and cash equivalents
shall be calculated on a pro forma basis, (iii) if since the beginning of the Reference Period the
Borrower or any Restricted Subsidiary shall have made any Asset Sale, the EBITDA for the Reference
Period shall be reduced by an amount equal to the EBITDA (if positive) directly attributable to the
assets which are the subject of such Asset Sale for the Reference Period or increased by an amount
equal to the EBITDA (if negative) directly attributable thereto for the Reference Period, (iv) if
since the beginning of the Reference Period the Borrower or any Restricted Subsidiary (by merger or
otherwise) shall have made an Investment in any Restricted Subsidiary (or any Person which becomes
a Restricted Subsidiary) or an acquisition of assets which constitutes all or substantially all of
an operating unit of a business, EBITDA for the Reference Period shall be calculated after giving
pro forma effect thereto (including the Incurrence of any Indebtedness) as if such Investment or
acquisition had occurred on the first day of the Reference Period, and (v) if since the beginning
of the Reference Period any Person (that subsequently became a Restricted Subsidiary or was merged
with or into the Borrower or any Restricted Subsidiary since the beginning of such Reference
Period) shall have made any Asset Sale, any Investment or acquisition of assets that would have
required an adjustment pursuant to clause (iii) or (iv) above if made by the Borrower or a
Restricted Subsidiary during the Reference Period, EBITDA for the Reference Period shall be
calculated after giving pro forma effect thereto as if such Asset Sale, Investment or acquisition
had occurred on the first day of the Reference Period.



     For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto and the amount of Consolidated Interest
Expense associated with any Senior Indebtedness Incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible financial or accounting Officer of
the Borrower. If any Senior Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest on such Senior Indebtedness shall be calculated as if the rate in effect
on the date of determination had been the applicable rate for the entire period (taking into
account any interest rate agreement applicable to such Senior Indebtedness if such interest rate
agreement has a remaining term in excess of 12 months).



     If any Senior Indebtedness is incurred under a revolving credit facility and is being given
pro forma effect, the interest on such Senior Indebtedness shall be calculated based on the average
daily balance of such Senior Indebtedness for the four Quarterly Reporting Periods subject to the
pro forma calculation to the extent such Senior Indebtedness was incurred solely for working
capital purposes.



33









 





     “Senior Note Documents” shall mean the Senior Note Indenture and all other instruments,
agreements and other documents evidencing or governing the Senior Notes or providing for any
Guarantee or other right in respect thereof.



     “Senior Note Indenture” shall mean the Indenture dated as of the date hereof, by and among the
Borrower, as issuer, certain of its subsidiaries, as guarantors, and Wells Fargo Bank, N.A., as
trustee, pursuant to which the Senior Notes are issued.



     “Senior Notes” shall mean the Borrower’s 103/4% Senior Notes due 2013, in an initial aggregate
principal amount of $175,000,000.



     “Shareholders Agreement” shall mean the Securities Purchase and Holders Agreement dated as of
January 7, 2005, by and among GMH Holding Company, Citigroup Venture Capital Equity Partners, L.P.,
CVC Executive Fund LLC, CVC/SSB Employee Fund, L.P., Court Square Capital Limited, the CVC
co-investors identified therein and the management investors identified therein.



     “Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Borrower within the meaning of Rule 1-02 under Regulation S-X promulgated by the
Securities and Exchange Commission.



     “SPC” shall have the meaning assigned to such term in Section 9.04(i).



     “Specified Equity Issuance” shall mean any issuance or sale by Holdings, the Borrower or any
of their respective subsidiaries of the Capital Stock of Holdings, the Borrower or any such
subsidiary, as applicable, except in each case for (a) any issuance or sale to Holdings, the
Borrower or any such subsidiary, (b) any issuance of directors’ qualifying shares, (c) sales or
issuances of common stock of Holdings to management or employees of Holdings, the Borrower or any
such subsidiary under any employee stock option or stock purchase plan or employee benefit plan in
existence from time to time, (d) any issuance of Capital Stock the Net Cash Proceeds of which are
used substantially concurrently to finance an acquisition of assets which constitute all or
substantially all of an operating unit of a business, or not less than 100% of the Capital Stock
(other than directors’ qualifying shares) of a Person engaged in a Related Business, (e) sales or
issuances of Capital Stock of Holdings to Parent in connection with a contemporaneous issuance of
Capital Stock of Parent to a Permitted Holder and (f) any issuance of Permitted Cure Securities in
connection with the exercise by the Borrower of its Cure Right in respect of the Financial
Performance Covenants.



     “Sponsor” shall mean Citigroup Venture Capital Equity Partners, L.P., a Delaware limited
partnership.



     “S&P” shall mean Standard & Poor’s Ratings Service, or any successor thereto.



     “Standard Securitization Undertakings” shall mean representations, warranties, covenants and
indemnities entered into by the Borrower or any Restricted Subsidiary of the Borrower that are
customary in an accounts receivable securitization transaction.



34









 





     “Stated Maturity” shall mean, with respect to any security, the date specified in such
security as the fixed date on which the final payment of principal of such security is due and
payable, including pursuant to any mandatory redemption provision (but excluding any provision
providing for the repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).



     “Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is
the number one and the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority, domestic or foreign, to
which the Administrative Agent or any Lender (including any branch, Affiliate, or other fronting
office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in
Regulation D of the Board). Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities as defined in Regulation D of the Board) and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be available from time
to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.



     “Subordinated Obligation” shall mean, with respect to a Person, any Indebtedness of such
Person (whether outstanding on the Closing Date or thereafter Incurred) which is subordinate or
junior in right of payment to the Loans or a Subsidiary Guarantee of such Person, as the case may
be, pursuant to a written agreement to that effect.



     “subsidiary” shall mean, with respect to any Person, any corporation, association, partnership
or other business entity of which more than 50% of the total voting power of shares of Voting Stock
is at the time owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and
one or more Subsidiaries of such Person, or (c) one or more Subsidiaries of such Person.



     “Subsidiary” means, unless the context otherwise requires, a Restricted Subsidiary of the
Borrower. For purposes of Sections 3.09, 3.14, 3.16 and 3.17 only, references to Subsidiaries
shall be deemed also to be references to Unrestricted Subsidiaries.



     “Subsidiary Guarantee” shall mean the Guarantee of any Subsidiary Guarantor set forth in the
Guarantee, Collateral and Intercreditor Agreement.



     “Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 1.01(a), and each other
Subsidiary that is or becomes a party to the Guarantee, Collateral and Intercreditor Agreement.



     “Successor Borrower” shall have the meaning assigned to such term in Section 6.08(a)(i).



     “Synthetic Lease” shall mean, as to any Person, any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is
accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or



35









 







obtains ownership of the property so leased for U.S. federal income tax purposes, other than
any such lease under which such Person is the lessor.



     “Synthetic Lease Obligations” shall mean, as to any Person, an amount equal to the capitalized
amount of the remaining lease payments under any Synthetic Lease that would appear on a balance
sheet of such Person in accordance with GAAP if such obligations were accounted for as Capital
Lease Obligations.



     “Tax Payments” shall have the meaning assigned to such term in Section 6.03(b)(xviii).



     “Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions,
charges, liabilities or withholdings imposed by any Governmental Authority.



     “Temporary Cash Investments” shall mean any of the following: (a) any investment in direct
obligations of the United States of America or any agency thereof or obligations guaranteed by the
United States of America or any agency thereof, (b) investments in demand and time deposit
accounts, certificates of deposit and money market deposits maturing within one year of the date of
acquisition thereof issued by a bank or trust company which is organized under the laws of the
United States of America, any State thereof or any foreign country recognized by the United States
of America, and which bank or trust company has capital, surplus and undivided profits aggregating
in excess of $50,000,000 (or the foreign currency equivalent thereof) and has outstanding debt
which is rated “A” (or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the Securities Act) or any
money-market fund sponsored by a registered broker dealer or mutual fund distributor, (c)
repurchase obligations with a term of not more than 30 days for underlying securities of the types
described in clause (a) above entered into with a bank meeting the qualifications described in
clause (b) above, (d) investments in commercial paper, maturing not more than one year after the
date of acquisition, issued by a corporation (other than an Affiliate of the Borrower) organized
and in existence under the laws of the United States of America or any foreign country recognized
by the United States of America with a rating at the time as of which any investment therein is
made of “P-1” (or higher) according to Moody’s or “A-1” (or higher) according to Standard and
Poor’s, (e) investments in 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
of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by
Standard & Poor’s or “A” by Moody’s, and (f) investments in money market funds that invest
substantially all their assets in securities of the types described in clauses (a) through (e)
above.



     “Term Loan Obligations” shall mean all obligations defined as “Term Loan Obligations” in the
Guarantee, Collateral and Intercreditor Agreement and the other Security Documents.



     “Term Loan Repayment Dates” shall mean the Repayment Dates and the Incremental Loan Repayment
Dates.



     “Term Loan Secured Parties” shall have the meaning assigned to such term in the Guarantee,
Collateral and Intercreditor Agreement.



36









 





     “Transactions” shall mean, collectively, (a) the execution, delivery and performance by
Holdings, the Borrower and the Subsidiaries party thereto of the Senior Note Documents and the
issuance of the Senior Notes, (b) the execution, delivery and performance by the Loan Parties of
the Loan Documents to which they are a party and the making of the Borrowings hereunder, (c) the
execution, delivery and performance by Holdings, the Borrower and the Subsidiaries party thereto of
the Revolving Loan Credit Agreement, (d) the repayment of all amounts due or outstanding under or
in respect of, and the termination of, the Existing Credit Agreement, and (e) the payment of
related fees and expenses.



     “Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes
hereof, the term “Rate” shall mean the Adjusted LIBO Rate and the Alternate Base Rate.



     “Unrestricted Subsidiary” shall mean:



     (a) NCID (Vegas), LLC, NCID (Austin), LLC, NCID (West Palm), LLC, NCID (Seattle), LLC and any
other subsidiary of the Borrower that at the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors in the manner provided below; and



     (b) any subsidiary of an Unrestricted Subsidiary.



     The Board of Directors may designate any subsidiary of the Borrower (including any newly
acquired or newly formed subsidiary) to be an Unrestricted Subsidiary unless such subsidiary or any
of its subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any property
of, the Borrower or any other subsidiary of the Borrower that is not a subsidiary of the subsidiary
to be so designated; provided, however, that either (i) the subsidiary to be so designated has
total assets of $1,000 or less or (ii) if such subsidiary has assets greater than $1,000, such
designation would be permitted under Section 6.03.



     The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such designation (i) either
(A) the Borrower could Incur $1.00 of additional Indebtedness under Section 6.01(a) or (B) the
Consolidated Leverage Ratio will not increase as a result of such designation, and (ii) no Default
shall have occurred and be continuing. Any such designation by the Board of Directors shall be
evidenced to the Administrative Agent by promptly filing with the Administrative Agent a copy of
the resolution of the Board of Directors giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the foregoing provisions.



     “USA PATRIOT Act” shall mean The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56
(signed into law October 26, 2001)).



     “Voluntary Prepayment” shall mean a prepayment of principal of Loans pursuant to Section 2.12
in any year to the extent that such prepayment reduces the scheduled installments of principal due
in respect of Loans as set forth in Section 2.11 in any subsequent year.



37









 





     “Voting Stock” of a Person shall mean all classes of Capital Stock of such Person then
outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof.



     “Wholly Owned Subsidiary” shall mean a Restricted Subsidiary all the Capital Stock of which
(other than directors’ qualifying shares) is owned by the Borrower or one or more other Wholly
Owned Subsidiaries.



     “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.



     SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. Unless otherwise
specifically indicated, the term “consolidated” with respect to any Person refers to such Person
consolidated with its Restricted Subsidiaries, and excludes from such consolidation any
Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person.
The words “include”, “includes” and “including” shall be deemed to be followed by the phrase
“without limitation”. The word “will” shall be construed to have the same meaning and effect as
the word “shall”; and the words “asset” and “property” shall be construed as having the same
meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights. All references herein to Articles,
Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as
otherwise expressly provided herein, (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein) and (b) all terms
of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VI or any related definition to eliminate the
effect of any change in GAAP occurring after the date of this Agreement on the operation of such
covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to
amend Article VI or any related definition for such purpose), then the Borrower’s compliance with
such covenant shall be determined on the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is withdrawn or such covenant is amended
in a manner satisfactory to the Borrower and the Required Lenders.



     SECTION 1.03. Classification of Loans and Borrowings. For purposes of this Agreement, Loans
may be classified and referred to by Type (e.g., a “Eurocurrency Loan”). Borrowings also may be
classified and referred to by Type (e.g., a “Eurocurrency Borrowing”).



38









 





ARTICLE II




The Credits




     SECTION 2.01. Commitments. (a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally and not jointly, to
make a Loan to the Borrower on the Closing Date in a principal amount not to exceed its Commitment.
Amounts paid or prepaid in respect of Loans may not be reborrowed.



     (b) Each Lender having an Incremental Loan Commitment, severally and not jointly, hereby
agrees, subject to the terms and conditions and relying upon the representations and warranties set
forth herein and in the applicable Incremental Loan Assumption Agreement, to make Incremental Loans
to the Borrower, in an aggregate principal amount not to exceed its Incremental Loan Commitment.
Amounts paid or prepaid in respect of Incremental Loans may not be reborrowed.



     SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing consisting of Loans
made by the Lenders ratably in accordance with their applicable Commitments; provided, however,
that the failure of any Lender to make any Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for
the failure of any other Lender to make any Loan required to be made by such other Lender). The
Loans comprising any Borrowing shall be in an aggregate principal amount that is an integral
multiple of $1,000,000 and not less than $3,000,000 (except, with respect to any Incremental
Borrowing, to the extent otherwise provided in the related Incremental Loan Assumption Agreement).



     (b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised entirely of ABR
Loans or Eurodollar Loans as the Borrower may request pursuant to Section 2.03. Each Lender may at
its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this Agreement and such Lender
shall not be entitled to any amounts payable under Sections 2.14 or 2.20 solely in respect of
increased costs resulting from such exercise and existing at the time of such exercise. Borrowings
of more than one Type may be outstanding at the same time; provided, however, that the Borrower
shall not be entitled to request any Borrowing that, if made, would result in more than eight
Eurodollar Borrowings outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the same date, shall be
considered separate Borrowings.



     (c) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds to such account in New York City as the
Administrative Agent may designate not later than 1:00 p.m. (New York City time) and the
Administrative Agent shall promptly credit the amounts so received to an account designated by the
Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur on such date
because any condition precedent herein specified shall not have been met, return the amounts so
received to the respective Lenders.



39









 





     (d) Unless the Administrative Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the Administrative Agent such
Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) above and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If the Administrative Agent shall
have so made funds available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower to but excluding the date
such amount is repaid to the Administrative Agent at (i) in the case of the Borrower, a rate per
annum equal to the interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent to represent its
cost of overnight or short-term funds (which determination shall be conclusive absent manifest
error). If such Lender shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this
Agreement.



     (e) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.



     SECTION 2.03. Borrowing Procedure. In order to request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 12:00 noon (New York City time) three Business Days before a proposed
Borrowing, and (b) in the case of an ABR Borrowing, not later than 12:00 noon (New York City time)
one Business Day before a proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable, and shall be confirmed promptly by hand delivery or fax to the Administrative Agent of
a written Borrowing Request and shall specify the following information: (i) whether such Borrowing
is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall
be a Business Day); (iii) the number and location of the account to which funds are to be
disbursed; (iv) the amount of such Borrowing; and (v) if such Borrowing is to be a Eurodollar
Borrowing, the Interest Period with respect thereto; provided, however, that, notwithstanding any
contrary specification in any Borrowing Request, each requested Borrowing shall comply with the
requirements set forth in Section 2.02. If no election as to the Type of Borrowing is specified in
any such notice, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period
with respect to any Eurodollar Borrowing is specified in any such notice, then the Borrower shall
be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent
shall promptly advise the applicable Lenders of any notice given pursuant to this Section 2.03 (and
the contents thereof), and of each Lender’s portion of the requested Borrowing.



     SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender the principal amount of
each Loan of such Lender as provided in Section 2.11.



40









 





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



     (c) The Administrative Agent shall maintain accounts in which it will record (i) the amount
of each Loan made hereunder, the Type thereof and, if applicable, the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from the Borrower or any Guarantor and each Lender’s share thereof.



     (d) The entries made in the accounts maintained pursuant to paragraphs (b) and (c) above
shall be prima facie evidence of the existence and amounts of the obligations therein recorded
(absent manifest error); provided, however, that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligations
of the Borrower to repay the Loans in accordance with their terms.



     (e) Any Lender may request that Loans made by it hereunder be evidenced by a promissory note.
In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to
such Lender and its registered assigns substantially in the form of Exhibit E. Notwithstanding any
other provision of this Agreement, in the event any Lender shall request and receive such a
promissory note, the interests represented by such note shall at all times (including after any
assignment of all or part of such interests pursuant to Section 9.04) be represented by one or more
promissory notes payable to the payee named therein or its registered assigns.



     SECTION 2.05. Administrative Agent Fees. The Borrower agrees to pay to the Administrative
Agent, for its own account, the administrative fees set forth in the Fee Letter at the times and in
the amounts specified therein (the “Administrative Agent Fees”).



     SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section 2.07, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of 365 or 366 days, as the case may be, when the Alternate Base Rate is
determined by reference to the Prime Rate and over a year of 360 days at all other times and
calculated from and including the date of such Borrowing to but excluding the date of repayment
thereof) at a rate per annum equal to the Alternate Base Rate plus the Applicable Percentage.



     (b) Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed over a year of
360 days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Percentage.



     (c) Interest on each Loan shall be payable on the Interest Payment Dates applicable to such
Loan except as otherwise provided in this Agreement. The applicable Alternate Base Rate or
Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as the case may



41









 







be, shall be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.



     SECTION 2.07. Default Interest. Immediately upon the occurrence of an Event of Default
(until such Event of Default has been waived or cured), the outstanding principal amount of all
Loans shall bear interest at the rate otherwise applicable to such Loan pursuant to Section 2.06
plus 2.00% per annum.



     SECTION 2.08. Alternate Rate of Interest. In the event, and on each occasion, that on the
day two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing
the Administrative Agent shall have determined that dollar deposits in the principal amounts of the
Loans comprising such Borrowing are not generally available in the London interbank market, or that
the rates at which such dollar deposits are being offered will not adequately and fairly reflect
the cost to any Lender of making or maintaining its Eurodollar Loan during such Interest Period, or
that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or fax notice of such determination to
the Borrower and the Lenders. In the event of any such determination, until the Administrative
Agent shall have advised the Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each determination by
the Administrative Agent under this Section 2.08 shall be conclusive absent manifest error.



     SECTION 2.09. Termination of Commitments. The Commitments (other than any Incremental Loan
Commitments, which shall terminate as provided in the related Incremental Loan Assumption
Agreement) shall automatically terminate upon the making of the Loans on the Closing Date.



     SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower shall have the right
at any time upon prior irrevocable written or fax notice (or telephonic notice promptly confirmed
by written or fax notice) to the Administrative Agent (a) not later than 12:00 noon (New York City
time) one Business Day prior to conversion, to convert any Eurodollar Borrowing into an ABR
Borrowing, (b) not later than 12:00 noon (New York City time) three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar Borrowing or to continue
any Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest Period, and (c) not
later than 12:00 noon (New York City time) three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Borrowing to another permissible Interest Period,
subject in each case to the following:




     (i) each conversion or continuation shall be made pro rata among the Lenders in
accordance with the respective principal amounts of the Loans comprising the converted or
continued Borrowing;




     (ii) if less than all the outstanding principal amount of any Borrowing shall be
converted or continued, then each resulting Borrowing shall satisfy the limitations
specified in Sections 2.02(a) and 2.02(b) regarding the principal amount and maximum number
of Borrowings of the relevant Type;



42









 






     (iii) each conversion shall be effected by each Lender and the Administrative Agent by
recording for the account of such Lender the new Loan of such Lender resulting from such
conversion and reducing the Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of conversion;




     (iv) if any Eurodollar Borrowing is converted at a time other than the end of the
Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to
the Lenders pursuant to Section 2.16;




     (v) any portion of a Borrowing maturing or required to be repaid in less than one
month may not be converted into or continued as a Eurodollar Borrowing;




     (vi) any portion of a Eurodollar Borrowing that cannot be converted into or continued
as a Eurodollar Borrowing by reason of the immediately preceding clause shall be
automatically converted at the end of the Interest Period in effect for such Borrowing into
an ABR Borrowing;




     (vii) no Interest Period may be selected for any Eurodollar Borrowing that would end
later than a Term Loan Repayment Date occurring on or after the first day of such Interest
Period if, after giving effect to such selection, the aggregate outstanding amount of
(A) the Eurodollar Borrowings comprised of Loans or Other Loans, as applicable, with
Interest Periods ending on or prior to such Term Loan Repayment Date and (B) the ABR 
Borrowings comprised of Loans or Other Loans, as applicable, would not be at least equal to
the principal amount of Borrowings to be paid on such Term Loan Repayment Date; and




     (viii) after the occurrence and during the continuance of a Default specified in
clause (b) or (c) of Article VII (without regard to any applicable grace period in such
clause (c)), no outstanding Loan may be converted into, or continued as, a Eurodollar Loan.



     Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to this
Agreement and specify (i) the identity and amount of the Borrowing that the Borrower requests be
converted or continued, (ii) whether such Borrowing is to be converted to or continued as a
Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the date of
such conversion (which shall be a Business Day) and (iv) if such Borrowing is to be converted to or
continued as a Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest
Period is specified in any such notice with respect to any conversion to or continuation as a
Eurodollar Borrowing, the Borrower shall be deemed to have selected an Interest Period of one
month’s duration. The Administrative Agent shall advise the Lenders of any notice given pursuant
to this Section 2.10 and of each Lender’s portion of any converted or continued Borrowing. If the
Borrower shall not have given notice in accordance with this Section 2.10 to continue any Borrowing
into a subsequent Interest Period (and shall not otherwise have given notice in accordance with
this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the Interest
Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be continued
into an ABR Borrowing.



43









 





     SECTION 2.11. Repayment of Borrowings. (a) (i) The Borrower shall pay to the
Administrative Agent, for the account of the Lenders, on the dates set forth below, or if any such
date is not a Business Day, on the next preceding Business Day (each such date being called a
“Repayment Date”), a principal amount of the Loans other than Other Loans (as adjusted from time to
time pursuant to Sections 2.11(b), 2.12, 2.13(e) and 2.22(d)) equal to the amount set forth below
for such date, together in each case with accrued and unpaid interest on the principal amount to be
paid to but excluding the date of such payment:



	 	 	 	 	 
	Quarterly Reporting Period	 	 
	Ending on or About	 	Scheduled Repayment of Loans
	December 31, 2007
	 	$	191,589.76	 
	March 31, 2008
	 	$	191,589.76	 
	June 30, 2008
	 	$	191,589.76	 
	September 30, 2008
	 	$	191,589.76	 
	December 31, 2008
	 	$	191,589.76	 
	March 31, 2009
	 	$	191,589.76	 
	June 30, 2009
	 	$	191,589.76	 
	September 30, 2009
	 	$	191,589.76	 
	December 31, 2009
	 	$	191,589.76	 
	March 31, 2010
	 	$	191,589.76	 
	June 30, 2010
	 	$	191,589.76	 
	September 30, 2010
	 	$	191,589.76	 
	December 31, 2010
	 	$	191,589.76	 
	March 31, 2011
	 	$	191,589.76	 
	June 30, 2011
	 	$	191,589.76	 
	September 30, 2011
	 	$	191,589.76	 
	December 31, 2011
	 	$	191,589.76	 
	March 31, 2012
	 	$	191,589.76	 
	June 30, 2012
	 	$	191,589.76	 
	September 30, 2012
	 	$	191,589.76	 
	Maturity Date
	 	$	72,804,106.80	 
	TOTAL:
	 	$	76,635,902.00	 





(ii) The Borrower shall pay to the Administrative Agent, for the account of the Incremental
Lenders, on each Incremental Loan Repayment Date, a principal amount of the Other Loans (as
adjusted from time to time pursuant to Sections 2.11(b), 2.12 and 2.13(e)) equal to the amount set
forth for such date in the applicable Incremental Loan Assumption Agreement, together in each case
with accrued and unpaid interest on the principal amount to be paid to but excluding the date of
such payment.




44









 








     (b) In the event and on each occasion that the Commitments shall be reduced or shall expire
or terminate other than as a result of the making of a Loan, the installments payable on
each Repayment Date shall be reduced pro rata by an aggregate amount equal to the amount of
such reduction, expiration or termination.



     (c) To the extent not previously paid, all Loans and Other Loans shall be due and payable on
the Maturity Date and the Incremental Loan Maturity Date, respectively, together with accrued and
unpaid interest on the principal amount to be paid to but excluding the date of payment.



     (d) All repayments pursuant to this Section 2.11 shall be subject to Section 2.16, but shall
otherwise be without premium or penalty.



     SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the right at any time and
from time to time to prepay any Borrowing, in whole or in part, upon at least three Business Days’
prior written or fax notice (or telephonic notice promptly confirmed by written or fax notice) in
the case of Eurodollar Loans, or written or fax notice (or telephone notice promptly confirmed by
written or fax notice) at least one Business Day prior to the date of prepayment in the case of ABR
Loans, to the Administrative Agent before 12:00 noon (New York City time); provided, however, that
each partial prepayment shall be in an amount that is an integral multiple of $1,000,000 and not
less than $3,000,000.



     (b) Optional prepayments of Loans shall be applied against the remaining scheduled
installments of principal due in respect of the Loans under Section 2.11 as directed by the
Borrower.



     (c) Each notice of prepayment shall specify the prepayment date and the principal amount of
each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay such Borrowing by the amount stated therein on the date stated therein. All
prepayments under this Section 2.12 shall be subject to Section 2.16 but otherwise without premium
or penalty. All prepayments under this Section 2.12 shall be accompanied by accrued and unpaid
interest on the principal amount to be prepaid to but excluding the date of payment.



     SECTION 2.13. Mandatory Prepayments. (a) Not later than the fifth Business Day following
the receipt of Net Cash Proceeds in respect of any Asset Sale, the Borrower shall apply 100% of the
Net Cash Proceeds received with respect thereto to prepay outstanding Loans in accordance with
Section 2.13(e).



     (b) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower
shall, substantially simultaneously with (and in any event not later than the third Business Day
next following) the occurrence of such Specified Equity Issuance, apply 50% of the Net Cash
Proceeds therefrom to prepay outstanding Loans in accordance with Section 2.13(e); provided,
however, that if such Specified Equity Issuance is the first public offering of the Borrower’s
common stock or the common stock of Holdings after the Closing Date, the amount of Net Cash
Proceeds therefrom for purposes of this Section 2.13(b) shall be reduced by the amount of such Net
Cash Proceeds that is applied to purchase, repurchase,



45









 







redeem or otherwise acquire Senior Notes
pursuant to the “equity clawback” provisions set forth in the Senior Note Indenture to the extent
such purchase, repurchase, redemption or other
acquisition is permitted hereunder, with the amount so applied to be certified by a Financial
Officer of the Borrower in a certificate delivered to the Administrative Agent.



     (c) No later than the earlier of (i) 90 days after the end of each Annual Reporting Period of
the Borrower, and (ii) the date on which the financial statements with respect to such period are
delivered pursuant to Section 5.04(a), the Borrower shall prepay outstanding Loans in accordance
with Section 2.13(e) in an aggregate principal amount equal to the excess (if any) of (A) 50% of
Excess Cash Flow for the Annual Reporting Period then ended minus (B) Voluntary Prepayments
made during such Annual Reporting Period; provided that such percentage set forth in clause (A)
shall be reduced to (x) 25% if the Consolidated Leverage Ratio as of the end of such Annual
Reporting Period was less than 4.50 to 1.00 and (y) 0% if the Consolidated Leverage Ratio as of the
end of such Annual Reporting Period was less than 3.75 to 1.00.



     (d) In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash
Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or
any subsidiary of a Loan Party (other than any cash proceeds from the issuance of (i) Indebtedness
for money borrowed permitted pursuant to Section 6.01(b), (ii) Incremental Loans Incurred in
accordance with Section 6.01 or (iii) Indebtedness of Holdings the proceeds of which are used to
finance the acquisition of (A) assets constituting all or substantially all the assets of a Person
or a line of business, division or segment of a Person or (B) not less than 100% of the Capital
Stock (other than directors’ qualifying shares) of a Person), the Borrower shall, substantially
simultaneously with (and in any event not later than the third Business Day next following) the
receipt of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to
100% of such Net Cash Proceeds to prepay outstanding Loans in accordance with Section 2.13(e).



     (e) Mandatory prepayments of outstanding Loans under this Agreement shall be allocated pro
rata between the Loans and the Other Loans and applied pro rata against the remaining scheduled
installments of principal due in respect of the Loans and the Other Loans under Sections 2.11(a)(i)
and (ii), respectively.



     (f) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment
required under this Section 2.13, (i) a certificate signed by a Financial Officer of the Borrower
setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the
extent practicable, at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal
amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this
Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty,
and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to
but excluding the date of payment.



     SECTION 2.14. Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other
provision of this Agreement, if any Change in Law shall impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits with or for the account
of or credit extended by any Lender (except any such reserve



46









 







requirement which is reflected in the
Adjusted LIBO Rate) or shall impose on such Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans
made by such Lender, and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Loan or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender to be material, then the Borrower will pay to such Lender upon demand
such additional amount or amounts as will compensate such Lender for such additional costs incurred
or reduction suffered.



     (b) If any Lender shall have determined that any Change in Law regarding capital adequacy has
or would have the effect of reducing the rate of return on such Lender’s capital or on the capital
of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by
such Lender pursuant hereto to a level below that which such Lender or such Lender’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s
policies and the policies of such Lender’s holding company with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding
company for any such reduction suffered.



     (c) A certificate of a Lender setting forth the amount or amounts (and the calculations
thereof in reasonable detail) necessary to compensate such Lender or its holding company, as
applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate delivered by it within 10 days after its receipt of the same.



     (d) Failure or delay on the part of any Lender to demand compensation for any increased costs
or reduction in amounts received or receivable or reduction in return on capital shall not
constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower
shall not be under any obligation to compensate any Lender under paragraph (a) or (b) above with
respect to increased costs or reductions with respect to any period prior to the date that is
120 days prior to such request if such Lender knew or could reasonably have been expected to know
of the circumstances giving rise to such increased costs or reductions and of the fact that such
circumstances would result in a claim for increased compensation by reason of such increased costs
or reductions; provided further that the foregoing limitation shall not apply to any increased
costs or reductions arising out of the retroactive application of any Change in Law within such
120-day period. The protection of this Section 2.14 shall be available to each Lender regardless
of any possible contention of the invalidity or inapplicability of the Change in Law that shall
have occurred or been imposed.



     SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision of this
Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any
Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Borrower and to the Administrative Agent:




     (i) such Lender may declare that Eurodollar Loans will not thereafter (for the
duration of such unlawfulness) be made by such Lender hereunder (or be continued for
additional Interest Periods) and ABR Loans will not thereafter (for such duration) be



47









 







converted into Eurodollar Loans, whereupon any request for a Eurodollar Borrowing (or to
convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar
Borrowing for an additional Interest Period) shall, as to such Lender only, be deemed a
request for an ABR Loan (or a request to continue an ABR Loan as such for an additional
Interest Period or to convert a Eurodollar Loan into an ABR Loan, as the case may be),
unless such declaration shall be subsequently withdrawn; and




     (ii) such Lender may require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically
converted to ABR Loans as of the effective date of such notice as provided in paragraph (b)
below.


In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and
prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that
would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead
be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.




     (b) For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be
effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the
Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be
effective on the date of receipt by the Borrower.



     SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against any loss (other
than loss of margin) or expense that such Lender may sustain or incur as a consequence of (a) any
event, other than a default by such Lender in the performance of its obligations hereunder or an
assignment (other than pursuant to Section 2.21) by such Lender, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii) the conversion of any Eurodollar
Loan to an ABR Loan, or the conversion of the Interest Period with respect to any Eurodollar Loan,
in each case other than on the last day of the Interest Period in effect therefor, or (iii) any
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be made pursuant to a
conversion or continuation under Section 2.10) not being made after notice of such Loan shall have
been given by the Borrower hereunder (any of the events referred to in this clause (a) being called
a “Breakage Event”) or (b) any default in the making of any payment or prepayment required to be
made hereunder. In the case of any Breakage Event, such loss shall include an amount equal to the
excess, as reasonably determined by such Lender, of (i) its cost of obtaining funds for the
Eurodollar Loan that is the subject of such Breakage Event for the period from the date of such
Breakage Event to the last day of the Interest Period in effect (or that would have been in effect)
for such Loan over (ii) the amount of interest likely to be realized by such Lender in redeploying
the funds released or not utilized by reason of such Breakage Event for such period. A certificate
of any Lender setting forth any amount or amounts which such Lender is entitled to receive pursuant
to this Section 2.16 shall be delivered to the Borrower and shall be conclusive absent manifest
error.



     SECTION 2.17. Pro Rata Treatment. Except as required under Section 2.15, each Borrowing,
each payment or prepayment of principal of any Borrowing, each payment of interest



48









 







on the Loans,
each reduction of the Commitments and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts of their
outstanding Loans). Each Lender agrees that in computing such Lender’s portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage
of such Borrowing to the next higher or lower whole dollar amount.



     SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise
of a right of banker’s lien, setoff or counterclaim against the Borrower or any other Loan Party,
or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Loan or Loans as a result of which the
unpaid principal portion of its Loans shall be proportionately less than the unpaid principal
portion of the Loans of any other Lender, it shall be deemed simultaneously to have purchased from
such other Lender at face value, and shall promptly pay to such other Lender the purchase price
for, a participation in the Loans of such other Lender, so that the aggregate unpaid principal
amount of the Loans and participations in Loans held by each Lender shall be in the same proportion
to the aggregate unpaid principal amount of all Loans then outstanding as the principal amount of
its Loans prior to such exercise of banker’s lien, setoff or counterclaim or other event was to the
principal amount of all Loans outstanding prior to such exercise of banker’s lien, setoff or
counterclaim or other event; provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.18 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent
of such recovery and the purchase price or prices or adjustment restored without interest. The
Borrower and Holdings expressly consent to the foregoing arrangements and agree that any Lender
holding a participation in a Loan deemed to have been so purchased may exercise any and all rights
of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower
and Holdings to such Lender by reason thereof as fully as if such Lender had made a Loan directly
to the Borrower in the amount of such participation.



     SECTION 2.19. Payments. (a) The Borrower shall make each payment (including principal of or
interest on any Borrowing, the Administrative Agent Fees or any other amounts) hereunder and under
any other Loan Document not later than 2:00 p.m. (New York City time) on the date when due in
immediately available dollars, without setoff, defense or counterclaim. Each such payment shall be
made to the Administrative Agent at its offices at 77 King Street West, 18th Floor,
Toronto, Ontario, Canada M5K 1A2. The Administrative Agent shall promptly distribute to each
Lender any payments received by the Administrative Agent on behalf of such Lender.



     (b) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the



49









 







Borrower does not
in fact make such payment, then each of the Lenders, in immediately available funds with interest
thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative Agent, at the
Federal Funds Rate.



     (c) Except as otherwise expressly provided herein, whenever any payment (including principal
of or interest on any Borrowing, the Administrative Agent Fees or any other amounts) hereunder or
under any other Loan Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of interest, if applicable.



     SECTION 2.20. Taxes. (a) Any and all payments by or on account of any obligation of the
Borrower or any other Loan Party hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that, if the
Borrower or any other Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums payable under this
Section 2.20) the Administrative Agent or Lender (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the Borrower or such Loan
Party shall make such deductions and (iii) the Borrower or such Loan Party shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.



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



     (c) The Borrower shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower or any other Loan Party hereunder or under any
other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 2.20) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount (and the calculation thereof in reasonable detail) and nature of such
payment or liability delivered to the Borrower by a Lender, or by the Administrative Agent on
behalf of itself or a Lender, shall be conclusive absent manifest error.



     (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower or any other Loan Party to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.



50









 





     (e) Any Foreign Lender that is entitled to an exemption from or reduction of 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, such properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be made without withholding or
at a reduced rate.



     (f) If any Lender determines (in its sole discretion) that it has received a refund in
respect of Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower or
with respect to which the Borrower has paid additional amounts pursuant to this Section 2.19, it
shall promptly pay such refund to the Borrower, net of all out-of-pocket expenses (including any
Taxes to which such Lender has become subject as a result of its receipt of such refund) of such
Lender incurred in obtaining such refund and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided, however, that the Borrower
agrees to promptly return such refund (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the applicable Lender if it receives notice from the applicable
Lender that such Lender is required to repay such refund to such Governmental Authority. Nothing
contained in this Section 2.19(f) shall require any Lender to make available its tax returns (or
any other information relating to its taxes which it deems to be confidential) to the Borrower or
any other Person.



     SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate. (a)
In the event (i) any Lender delivers a certificate requesting compensation pursuant to
Section 2.14, (ii) any Lender delivers a notice described in Section 2.15, (iii) the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority on account of any
Lender pursuant to Section 2.20 or (iv) any Lender refuses to consent to any amendment, waiver or
other modification of any Loan Document requested by the Borrower that requires the consent of a
greater percentage of the Lenders than the Required Lenders and such amendment, waiver or other
modification is consented to by the Required Lenders, the Borrower may, at its sole expense and
effort (including with respect to the processing and recordation fee referred to in
Section 9.04(b)), upon notice to such Lender and the Administrative Agent, require such Lender to
transfer and assign, without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all of its interests, rights and obligations under this Agreement to an assignee
that shall assume such assigned obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (x) such assignment shall not conflict with any law, rule
or regulation or order of any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld or delayed, and (z) the Borrower or such assignee shall have
paid to the affected Lender in immediately available funds an amount equal to the sum of the
principal of and interest accrued to the date of such payment on the outstanding Loans of such
Lender plus all other amounts accrued for the account of such Lender hereunder with respect thereto
(including any amounts under Sections 2.14 and 2.16); provided further that, if prior to any such
transfer and assignment the circumstances or event that resulted in such Lender’s claim for
compensation under Section 2.14, notice under Section 2.15 or the amounts paid pursuant to
Section 2.20, as the case may be, cease to cause such Lender to suffer increased costs or
reductions in amounts received or receivable or reduction in return on capital, or cease to



51









 







have
the consequences specified in Section 2.15, or cease to
result in amounts being payable under
Section 2.20, as the case may be (including as a result of any action taken by such Lender pursuant
to paragraph (b) below), or if such Lender shall waive its right to claim further
compensation under Section 2.14 in respect of such circumstances or event or shall withdraw
its notice under Section 2.15 or shall waive its right to further payments under Section 2.20 in
respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent
or other modification, as the case may be, then such Lender shall not thereafter be required to
make any such transfer and assignment hereunder. Each Lender hereby grants to the Administrative
Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and
deliver, on behalf of such Lender as assignor, any Assignment and Acceptance necessary to
effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by
this Section 2.21(a).



     (b) If (i) any Lender shall request compensation under Section 2.14, (ii) any Lender delivers
a notice described in Section 2.15 or (iii) the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.20, then
such Lender shall use reasonable efforts (which shall not require such Lender to incur an
unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden
deemed by it to be significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations
hereunder to another of its offices, branches or affiliates, if such filing or assignment would
reduce its claims for compensation under Section 2.14 or enable it to withdraw its notice pursuant
to Section 2.15 or would reduce amounts payable pursuant to Section 2.20, as the case may be, in
the future. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such filing or assignment, delegation and transfer.



     SECTION 2.22. Incremental Loans. (a) The Borrower may, by written notice to the
Administrative Agent from time to time, request Incremental Loan Commitments in an amount not to
exceed the Incremental Loan Amount from one or more Incremental Lenders, which may include any
existing Lender; provided that each Incremental Lender, if not already a Lender hereunder, shall be
subject to the approval of the Administrative Agent (which approval shall not be unreasonably
withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Loan
Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum
amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loan Amount),
(ii) the date on which such Incremental Loan Commitments are requested to become effective (which
shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and
(iii) whether such Incremental Loan Commitments are commitments to make additional Loans or
commitments to make term loans with terms different from the Loans (“Other Loans”).



     (b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative
Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative
Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental
Lender. Each Incremental Loan Assumption Agreement shall specify the terms of the Incremental
Loans to be made thereunder; provided that no Default or Event of Default shall exist at the time
of, or after giving effect to, the Incurrence of any



52









 







Incremental Loans and, without the prior
written consent of the Required Lenders, (i) the Financial Performance Covenants would be satisfied
on a pro forma basis on the date of Incurrence of such Incremental Loans and for the most recent
determination period (after giving
effect to the Incurrence of such Incremental Loans and other customary and appropriate pro
forma adjustment events (including certain acquisitions or dispositions after the beginning of the
relevant determination period, but prior to or simultaneously with the Incurrence of such
Incremental Loans) reasonably satisfactory to the Administrative Agent), (ii) the final maturity
date of any Other Loans shall be no earlier than the Maturity Date, (iii) the Average Life of any
Other Loans shall be no shorter than the Average Life of the Loans, (iv) following the Incurrence
of such Incremental Loans, the Loans shall benefit from the same financial maintenance covenants
(if any) and, to the extent more favorable to the Lenders (as reasonably determined by the
Administrative Agent), other additional covenants (if any) applicable to any Other Loans, (v) to
the extent inconsistent with the terms of this Agreement, the other terms and conditions in respect
of any Other Loans shall be reasonably satisfactory to the Administrative Agent, and (vi) if the
initial yield on any Other Loans (as determined by the Administrative Agent to be equal to the sum
of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are
initially made at a discount or the Lenders making the same receive a fee directly or indirectly
from Holdings, the Borrower or any Subsidiary for doing so (the amount of such discount or fee,
expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of
such OID divided by the lesser of (A) the Average Life of such Other Loans and (B) four) exceeds by
more than 50 basis points (the amount of such excess above 50 basis points being referred to herein
as the “Yield Differential”) the Applicable Percentage then in effect for Eurodollar Loans, then
the Applicable Percentage then in effect for Loans shall automatically be increased by the Yield
Differential, effective upon the making of the Other Loans. The Administrative Agent shall
promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement.
Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan
Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent)
necessary to reflect the existence and terms of the Incremental Loan Commitments and the
Incremental Loans evidenced thereby, as well as, to the extent applicable, any modifications to the
covenants set forth herein as contemplated above in this Section 2.22(b).



     (c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective
under this Section 2.22 unless (i) on the date of such effectiveness, the conditions set forth in
paragraphs (b) and (c) of Article IV shall be satisfied and the Administrative Agent shall have
received a certificate to that effect dated such date and executed by a Financial Officer of the
Borrower, and (ii) except as otherwise specified in the applicable Incremental Loan Assumption
Agreement, the Administrative Agent shall have received (with sufficient copies for each of the
Incremental Lenders to the extent requested thereby) legal opinions, board resolutions and other
closing certificates reasonably requested by the Administrative Agent and consistent with those
delivered on the Closing Date under Article IV (and relevant thereto).



     (d) Each of the parties hereto hereby agrees that the Administrative Agent may, in
consultation with the Borrower, take any and all action as may be reasonably necessary to ensure
that all Incremental Loans (other than Other Loans), when originally made, are included in each
Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each
outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of



53









 







each
Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding
Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required
by the preceding sentence shall be subject to Section 2.16. If any Incremental Loan is
to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest
rate thereon for such Interest Period and the other economic consequences thereof shall be as set
forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any
Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.11(a)(i)
required to be made after the making of such Incremental Loans shall be ratably increased by the
aggregate principal amount of such Incremental Loans.



     SECTION 2.23. Change of Control. (a) The Borrower shall (i) within 30 days following the
occurrence of a Change of Control, make an offer to all Lenders to prepay all Loans pursuant to a
Change of Control Offer (as defined in paragraph (b) of this Section 2.23) at a purchase price in
cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest to the date of
prepayment, in accordance with the terms contemplated in this Section 2.23, and (ii) prepay all the
Loans of all Lenders properly accepting such offer of prepayment in accordance with such Change of
Control Offer.



     (b) A “Change of Control Offer” means a notice delivered to the Administrative Agent (which
will promptly furnish such notice to the Lenders) stating:




     (i) that a Change of Control has occurred and that such Lender has the right to
require the Borrower to prepay all or a portion of such Lender’s Loans at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest to
the date of prepayment;




     (ii) the circumstances and relevant facts regarding such Change of Control (including
information with respect to pro forma historical income, cash flow and capitalization, in
each case after giving effect to such Change of Control);




     (iii) the Change of Control prepayment date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is delivered);




     (iv) Lenders electing to have any Loans prepaid pursuant to a Change of Control Offer
will be required to notify the Administrative Agent prior to the close of business on the
third Business Day preceding the Change of Control prepayment date; and




     (v) that Lenders will be entitled to withdraw their election to require the Borrower
to prepay their Loans; provided that the Administrative Agent receives, not later than the
close of business on the last day of the offer period, a notice setting forth the name of
the Lender, the principal amount of Loans tendered for prepayment, and a statement that such
Lender is withdrawing its election to have such Loans prepaid.



     (c) On the prepayment date, the Borrower shall prepay the Loans of all Lenders who accept the
Change of Control Offer at a purchase price in cash equal to 101% of the principal amount thereof,
plus accrued and unpaid interest, if any, to the date of prepayment. If at the time of any
prepayment pursuant to this Section 2.23 there shall be outstanding Borrowings of different Types
or Eurodollar Borrowings with different Interest Periods, and if some but not all



54









 







Lenders shall have accepted such Change of Control Offer, then the aggregate amount of such
prepayment shall be allocated ratably to each outstanding Borrowing that comprises the Loans of the
accepting Lenders. All prepayments of Loans under this Section 2.23 shall be subject to
Section 2.16.



     (d) Notwithstanding the foregoing provisions of this Section 2.23, the Borrower shall be
deemed to have made a Change of Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in Section 2.23(b) applicable to a Change of Control Offer made by the
Borrower and prepays all Loans as to which offers for prepayment have been validly accepted and not
withdrawn pursuant to the terms of such Change of Control Offer.



ARTICLE III




Representations and Warranties




     Each of Holdings and the Borrower represents and warrants to the Administrative Agent, the
Collateral Agent and each of the Lenders that:



     SECTION 3.01. Organization; Powers. Holdings, the Borrower and each of the Subsidiaries
(a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of
its organization, (b) has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted, (c) is qualified to do
business in, and is in good standing in, every jurisdiction where such qualification is required,
except where the failure so to qualify could not reasonably be expected to result in a Material
Adverse Effect, and (d) has the corporate or limited liability company power, as appropriate, and
authority to execute, deliver and perform its obligations under each of the Loan Documents and each
other agreement or instrument contemplated thereby to which it is or will be a party and, in the
case of the Borrower, to borrow hereunder.



     SECTION 3.02. Authorization. The Transactions (a) have been duly authorized by all requisite
corporate and, if required, stockholder action and (b) will not (i) violate (A) any applicable
provision of law, statute, rule or regulation, or of the certificate or articles of incorporation
or other constitutive documents or by-laws of Holdings, the Borrower or any Subsidiary, (B) any
order of any Governmental Authority or (C) any provision of any indenture, agreement or other
instrument to which Holdings, the Borrower or any Subsidiary is a party or by which any of them or
any of their property is or may be bound, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under, or give rise to any
right to accelerate or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (iii) result in the creation or imposition of
any Lien upon or with respect to any property or assets now owned or hereafter acquired by
Holdings, the Borrower or any Subsidiary (other than any Lien created hereunder or under the
Security Documents).



     SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by
Holdings and the Borrower and constitutes, and each other Loan Document when executed and delivered
by each Loan Party party thereto will constitute, a legal, valid and binding



55









 







obligation of such Loan Party enforceable against such Loan Party in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.



     SECTION 3.04. Governmental Approvals. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be required in connection
with the Transactions, except for (a) the filing of Uniform Commercial Code financing statements
and filings with the United States Patent and Trademark Office and the United States Copyright
Office and (b) such as have been made or obtained and are in full force and effect or which are not
material to the consummation of the Transactions.



     SECTION 3.05. Financial Statements. (a) The Borrower has heretofore furnished to the
Lenders its consolidated balance sheets and related statements of income, stockholder’s equity and
cash flows (i) as of and for the Annual Reporting Period ended March 25, 2007, audited by and
accompanied by the opinion of Pricewaterhouse Coopers LLP, independent public accountants, (ii) as
of and for each Quarterly Reporting Period subsequent to March 25, 2007 ended at least 30 days
before the Closing Date (to the extent such financial statements are required to be delivered to
the Lenders prior to the Closing Date pursuant to Section 5.04(b)), each certified by its chief
financial officer and (iii) as of and for each Monthly Reporting Period subsequent to the date of
the most recent unaudited quarterly financial statements furnished under clause (ii) ended at least
30 days before the Closing Date, each certified by its chief financial officer. Such financial
statements present fairly in all material respects the financial condition and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and
for such periods. Such balance sheets and the notes thereto disclose all material liabilities,
direct or contingent, of the Borrower and its consolidated Subsidiaries as of the dates thereof.
Such financial statements were prepared in accordance with GAAP applied on a consistent basis,
subject, in the case of unaudited financial statements, to year-end audit adjustments and the
absence of footnotes.



     (b) The Borrower has heretofore delivered to the Lenders its unaudited pro forma consolidated
balance sheet and related pro forma statements of income and cash flows as of the Quarterly
Reporting Period ended on or about March 25, 2007, prepared giving effect to the Transactions as if
they had occurred, with respect to such balance sheet, on such date and, with respect to such other
financial statements, on the first day of the period of four consecutive Quarterly Reporting
Periods ending on such date. Such pro forma financial statements have been prepared in good faith
by the Borrower, are based on the best information reasonably available to the Borrower as of the
date of delivery thereof, accurately reflect all material adjustments required to be made to give
effect to the Transactions and present fairly on a pro forma basis the estimated consolidated
financial position of the Borrower and its consolidated Subsidiaries as of such date and for such
period, assuming that the Transactions had actually occurred at such date or at the beginning of
such period, as the case may be.



     SECTION 3.06. No Material Adverse Change. No event, change or condition has occurred that
has had, or could reasonably be expected to have, a material adverse effect on the business,
assets, liabilities, operations, financial condition or operating results of Holdings, the Borrower
and the Subsidiaries, taken as a whole, since March 25, 2007.



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     SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of Holdings, the
Borrower and the Subsidiaries has good and marketable title to, or valid leasehold interests in,
all its material properties and assets, except for minor defects in title that do not interfere in
any material respect with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes. All such material properties and assets
are free and clear of Liens, other than Liens expressly permitted by Section 6.02.



     (b) Each material lease to which Holdings, the Borrower or any Subsidiary is a party is in
full force and effect and each of Holdings, the Borrower and the Subsidiaries enjoys peaceful and
undisturbed possession under all such material leases.



     SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing Date a list of all
subsidiaries and the percentage ownership interest of Holdings or the Borrower therein. The shares
of capital stock or other ownership interests so indicated on Schedule 3.08 are fully paid and
non-assessable and are owned by Holdings or the Borrower, directly or indirectly, free and clear of
all Liens (other than Liens created under the Security Documents).



     SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth on Schedule 3.09,
there are no actions, suits or proceedings at law or in equity or by or before any Governmental
Authority now pending or, to the knowledge of Holdings or the Borrower, threatened against or
affecting Holdings or the Borrower or any Subsidiary or any business, property or rights of any
such Person (i) that involve any Loan Document or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.



     (b) Since the date of this Agreement, there has been no change in the status of the matters
disclosed on Schedule 3.09 that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.



     (c) None of Holdings, the Borrower or any of the Subsidiaries or any of their respective
material properties or assets is in violation of, nor will the continued operation of their
material properties and assets as currently conducted violate, any law, rule or regulation
(including any zoning, building, Environmental Law, ordinance, code or approval or any building
permits), or is in default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be expected to result in a
Material Adverse Effect.



     SECTION 3.10. Agreements. (a) None of Holdings, the Borrower or any of the Subsidiaries is
a party to any agreement or instrument or subject to any corporate restriction the compliance with
which could reasonably be expected to result in a Material Adverse Effect.



     (b) None of Holdings, the Borrower or any of the Subsidiaries is in default in any manner
under any provision of any indenture or other agreement or instrument evidencing Indebtedness, or
any other material agreement or instrument to which it is a party or by which it or any of its
properties or assets are or may be bound, where such default could reasonably be expected to result
in a Material Adverse Effect.



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     SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings, the Borrower or any of the
Subsidiaries is engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.



     (b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or
that is inconsistent with, the provisions of the Regulations of the Board, including Regulation T,
U or X.



     SECTION 3.12. Investment Company Act. None of Holdings, the Borrower or any Subsidiary is an
“investment company” as defined in, or subject to regulation under, the Investment Company Act of
1940.



     SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of the Loans only for the
purposes specified in the introductory statement to this Agreement.



     SECTION 3.14. Tax Returns. Each of the Holdings, the Borrower and the Subsidiaries has filed
or caused to be filed all Federal, material state, local and foreign tax returns required to have
been filed by it and has paid or caused to be paid all material taxes due and payable by it and all
assessments received by it, except (a) taxes that are being contested in good faith by appropriate
proceedings and for which Holdings, the Borrower or such Subsidiary, as applicable, shall have set
aside on its books adequate reserves and (b) the failure to do so could not reasonably be expected
to result in a Material Adverse Effect.



     SECTION 3.15. No Material Misstatements. No information, report, financial statement,
exhibit or schedule furnished by or on behalf of Holdings or the Borrower to the Administrative
Agent or any Lender in connection with the negotiation of any Loan Document or included therein or
delivered pursuant thereto, when taken as a whole, contained, contains or will contain as of the
date furnished any material misstatement of fact or omitted, omits or will omit to state as of the
date furnished any material fact necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not misleading; provided that to the
extent any such information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, each of Holdings and the Borrower represents only that it
acted in good faith and utilized assumptions believed by it to be reasonable at the time (it being
understood that projections are subject to significant uncertainty and contingencies many of which
are beyond the control of the Borrower and that no assurances can be given that such projections
will be realized).



     SECTION 3.16. Employee Benefit Plans. (a) Each of the Borrower and its ERISA Affiliates is
in compliance in all material respects with the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events, could reasonably be
expected to result in material liability of the Borrower or any of its ERISA Affiliates. The
present value of all benefit liabilities under each Plan (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the last annual
valuation date applicable thereto, exceed by more than $5,000,000 the fair market value of the
assets of such Plan, and the present value of all benefit liabilities of all



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underfunded Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the last annual valuation dates applicable thereto,
exceed by more than $5,000,000 the fair market value of the assets of all such underfunded Plans.



     (b) Each Foreign Pension Plan is in compliance in all material respects with all requirements
of law applicable thereto and the respective requirements of the governing documents for such plan.
With respect to each Foreign Pension Plan, none of Holdings, its Affiliates or any of their
respective directors, officers, employees or agents has engaged in a transaction which would
subject Holdings, the Borrower or any Subsidiary, directly or indirectly, to a tax or civil penalty
which could reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect. With respect to each Foreign Pension Plan, reserves have been established in the
financial statements furnished to Lenders in respect of any unfunded liabilities in accordance with
applicable law and prudent business practice or, where required, in accordance with ordinary
accounting practices in the jurisdiction in which such Foreign Pension Plan is maintained. The
aggregate unfunded liabilities with respect to such Foreign Pension Plans could not reasonably be
expected to result in a Material Adverse Effect; the present value of the aggregate accumulated
benefit liabilities of all such Foreign Pension Plans (based on those assumptions used to fund each
such Foreign Pension Plan) did not, as of the last annual valuation date applicable thereto, exceed
by more than $5,000,000 the fair market value of the assets of all such Foreign Pension Plans.



     SECTION 3.17. Environmental Matters. (a) Except as set forth in Schedule 3.17 and except
with respect to any other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, none of Holdings, the Borrower or any of the
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental Liability.



     (b) Since the date of this Agreement, there has been no change in the status of the matters
disclosed on Schedule 3.17 that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.



     SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and correct description
of all insurance maintained by the Borrower or by the Borrower for its Subsidiaries as of the date
hereof and the Closing Date. As of each such date, such insurance is in full force and effect and
all premiums have been duly paid. The Borrower and its Subsidiaries have insurance in such amounts
and covering such risks and liabilities as are in accordance with normal industry practice.



     SECTION 3.19. Security Documents. (a) The Guarantee, Collateral and Intercreditor
Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable
security interest in the Collateral (as defined in the Guarantee, Collateral and Intercreditor
Agreement) and the proceeds thereof and (i) when the Pledged Collateral (as defined in the



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Guarantee, Collateral and Intercreditor Agreement) is delivered to the Collateral Agent, the
Lien created under Guarantee, Collateral and Intercreditor Agreement shall constitute a fully
perfected first-priority Lien on, and security interest in, all right, title and interest of the
Loan Parties in such Pledged Collateral, in each case prior and superior in right to any other
Person, and (ii) when financing statements in appropriate form are filed in the offices specified
on Schedule 3.19(a), the Lien created under the Guarantee, Collateral and Intercreditor Agreement
will constitute a fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in such Collateral to the extent such Collateral can be perfected by filing a
financing statement (other than Intellectual Property, as defined in the Guarantee, Collateral and
Intercreditor Agreement), in each case prior and superior in right to any other Person, other than
with respect to Liens expressly permitted by Section 6.02.



     (b) Upon the recordation of the Guarantee, Collateral and Intercreditor Agreement (or a
short-form security agreement in form and substance reasonably satisfactory to the Borrower and the
Collateral Agent) with the United States Patent and Trademark Office and the United States
Copyright Office, together with the financing statements in appropriate form filed in the offices
specified on Schedule 3.19(a) and provided that such filings are made within the time periods
required by applicable law governing perfection of security interests in the United States, the
Lien created under the Guarantee, Collateral and Intercreditor Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in
the Intellectual Property (as defined in the Guarantee, Collateral and Intercreditor Agreement) in
which a security interest may be perfected by filing in the United States and its territories and
possessions, in each case prior and superior in right to any other Person other than with respect
to Liens expressly permitted by Section 6.02 (it being understood that subsequent recordings in the
United States Patent and Trademark Office and the United States Copyright Office may be necessary
to perfect a Lien on U.S. registered trademarks and patents, trademark and patent applications and
registered copyrights acquired by the Loan Parties after the date hereof).



     (c) The Mortgages (if any) are effective to create in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable Lien on all of the Loan
Parties’ right, title and interest in and to the Mortgaged Property thereunder and the proceeds
thereof, and when the Mortgages are filed in the recording offices specified in writing by the
Borrower or any other Loan Party pursuant to its compliance with Section 5.12, such Mortgages shall
constitute a fully perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Mortgaged Property and the proceeds thereof, in each case prior and
superior in right to any other Person, other than with respect to the rights of Persons pursuant to
Liens expressly permitted by Section 6.02.



     SECTION 3.20. Location of Real Property and Leased Premises. (a) As of the Closing Date
neither the Borrower nor any of its subsidiaries owns any real property.



     (b) Schedule 3.20(b) lists completely and correctly as of the Closing Date all material real
property leased by the Borrower and the Subsidiaries and the addresses thereof. The Borrower and
the Subsidiaries have valid leases in all the material real property set forth on Schedule 3.20(b).



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     SECTION 3.21. Labor Matters. As of the Closing Date, there are no strikes, lockouts or
slowdowns against Holdings, the Borrower or any Subsidiary pending or, to the knowledge of Holdings
or the Borrower, threatened. The consummation of the Transactions will not give rise to any right
of termination or right of renegotiation on the part of any union under any collective bargaining
agreement to which Holdings, the Borrower or any Subsidiary is bound. Except to the extent any of
the following, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, (a) the hours worked by and payments made to employees of Holdings, the
Borrower and the Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing with such matters and (b) all
payments due from Holdings, the Borrower or any Subsidiary, or for which any claim may be made
against Holdings, the Borrower or any Subsidiary, on account of wages and employee health and
welfare insurance and other benefits, have been paid or accrued as a liability on the books of
Holdings, the Borrower or such Subsidiary.



     SECTION 3.22. Solvency. Immediately after the consummation of the Transactions to occur on
the Closing Date and immediately following the making of each Loan and after giving effect to the
application of the proceeds of each Loan, (a) the fair value of the assets of the Loan Parties,
taken as a whole, will exceed its debts and liabilities, subordinated, contingent or otherwise; (b)
the present fair saleable value of the property of the Loan Parties, taken as a whole, will be
greater than the amount that will be required to pay the probable liability of their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Loan Parties, taken as a whole, will be able to pay their
debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) the Loan Parties, taken as a whole, will not have unreasonably small
capital with which to conduct the business in which they are engaged as such businesses are now
conducted and are proposed to be conducted following the Closing Date.



ARTICLE IV




Conditions of Lending




     The obligations of the Lenders to make Loans hereunder are subject to the satisfaction of the
following conditions:



     (a) The Administrative Agent shall have received a notice of Borrowing as required by
Section 2.03.



     (b) The representations and warranties set forth in Article III and in each other Loan
Document shall be true and correct in all material respects on and as of the date of such Borrowing
with the same effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.



     (c) At the time of and immediately after such Borrowing, no Default or Event of Default shall
have occurred and be continuing.



     (d) The Administrative Agent shall have received, on behalf of itself and the Lenders, a
favorable written opinion of (i) Kirkland & Ellis LLP, counsel for Holdings and the Borrower, in



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form and substance reasonably satisfactory to the Administrative Agent, and (ii) each local
counsel listed on Schedule IV(d), in form and substance reasonably satisfactory to the
Administrative Agent, in each case (A) dated the Closing Date, (B) addressed to the Administrative
Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the
Transactions as the Administrative Agent shall reasonably request, and Holdings and the Borrower
hereby request such counsel to deliver such opinions.



     (e) All legal matters incident to this Agreement, the Borrowings and extensions of credit
hereunder and the other Loan Documents shall be reasonably satisfactory to the Lenders and to the
Administrative Agent.



     (f) The Administrative Agent shall have received (i) a copy of the certificate or articles of
incorporation (or other equivalent formation document), including all amendments thereto, of each
Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of
the state of its organization, and a certificate as to the good standing (or similar concept) of
each Loan Party as of a recent date, from such Secretary of State (or other similar official),
(ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing
Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or other
equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all
times since a date prior to the date of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors
(or other equivalent governing body) of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such Person is a party and, in the case of the Borrower,
the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended
and are in full force and effect, (C) that the certificate or articles of incorporation (or other
equivalent formation document) of such Loan Party have not been amended since the date of the last
amendment thereto shown on the certificate of good standing (to the extent applicable) furnished
pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in connection herewith on behalf of
such Loan Party, (iii) a certificate of another officer as to the incumbency and specimen signature
of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above,
and (iv) such other documents as the Administrative Agent may reasonably request.



     (g) The Administrative Agent shall have received a certificate, dated the Closing Date and
signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent
set forth in paragraphs (b) and (c) of this Article IV.



     (h) The Administrative Agent shall have received all fees and other amounts due and payable
on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any
other Loan Document.



     (i) The Security Documents shall have been duly executed by each Loan Party that is to be a
party thereto and shall be in full force and effect on the Closing Date. The Collateral Agent on
behalf of the Secured Parties shall have a security interest in the Collateral of the type and
priority described in each Security Document.



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     (j) The Collateral Agent shall have received a Perfection Certificate with respect to the
Loan Parties dated the Closing Date and duly executed by a Responsible Officer of Holdings and the
Borrower, and shall have received the results of a search of the Uniform Commercial Code filings
(or equivalent filings) made with respect to the Loan Parties in the states (or other
jurisdictions) of formation of such Persons, in which the chief executive office of each such
Person is located and in the other jurisdictions in which such Persons maintain property, in each
case as indicated on such Perfection Certificate, together with copies of the financing statements
(or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the
Collateral Agent that the Liens indicated in any such financing statement (or similar document)
would be permitted under Section 6.02 or have been or will be contemporaneously released or
terminated.



     (k) The Administrative Agent shall have received a copy of, or a certificate as to coverage
under, the insurance policies required by Section 5.02 and the applicable provisions of the
Security Documents, each of which shall be endorsed or otherwise amended to include a customary
lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form
and substance satisfactory to the Administrative Agent.



     (l) The Revolving Loan Credit Agreement shall have been executed and delivered by the parties
thereto and shall have become effective in accordance with its terms, and the Administrative Agent
shall have received reasonably satisfactory evidence thereof.



     (m) All principal, premium, if any, interest, fees and other amounts due or outstanding under
the Existing Credit Agreement shall have been paid in full, the commitments thereunder terminated
and all guarantees and security in support thereof discharged and released and the Administrative
Agent shall have received reasonably satisfactory evidence thereof. Immediately after giving
effect to the Transactions and the other transactions contemplated hereby, Holdings, the Borrower
and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than
(a) Indebtedness outstanding under this Agreement, (b) Indebtedness under the Revolving Loan Credit
Agreement (if any), (c) the Senior Notes, (d) the Existing PIK Notes and (e) Indebtedness set forth
on Schedule 6.01.



     (n) The Lenders shall have received the financial statements and opinion referred to in
Section 3.05, none of which shall be materially inconsistent with the financial statements or
forecasts previously provided to the Lenders.



     (o) The Administrative Agent shall have received a certificate from the chief financial
officer of Holdings certifying that Holdings and its subsidiaries, on a consolidated basis after
giving effect to the Transactions to occur on the Closing Date, are solvent.



     (p) All requisite Governmental Authorities and third parties shall have approved or consented
to the Transactions and the other transactions contemplated hereby to the extent required, all
applicable appeal periods shall have expired and there shall not be any pending or threatened
litigation, governmental, administrative or judicial action that could reasonably be expected to
restrain, prevent or impose burdensome conditions on the Transactions or the other transactions
contemplated hereby.



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     (q) The Lenders shall have received, to the extent requested, all documentation and other
information required by regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including the USA PATRIOT Act.



     (r) All Indebtedness in respect of the Existing PIK Notes shall have been fully subordinated
to the Obligations and each obligee in respect of the Existing PIK Notes shall have entered into a
subordination agreement in form and substance reasonably acceptable to the Administrative Agent
effecting such subordination.



ARTICLE V




Affirmative Covenants




     Each of Holdings and the Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all fees and all other expenses or amounts payable under any Loan
Document (other than obligations for taxes, costs, indemnifications, reimbursements, damages and
other contingent liabilities in respect of which no claim or demand for payment has been made or,
in the case of indemnifications, no notice has been given) shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing, each of Holdings and the Borrower will, and
will cause each of the Subsidiaries to:



     SECTION 5.01. Existence; Compliance with Laws; Businesses and Properties. (a) Do or cause
to be done all things necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under Section 6.08.



     (b) Do or cause to be done all things necessary to obtain, preserve, renew, extend and keep
in full force and effect the rights, licenses, permits, franchises, authorizations, patents,
copyrights, trademarks and trade names material to the conduct of its business; maintain and
operate such business in substantially the manner in which it is presently conducted and operated;
comply in all material respects with all applicable laws, rules, regulations and decrees and orders
of any Governmental Authority, whether now in effect or hereafter enacted except where the failure
to do so could reasonably be expected to result in a Material Adverse Effect; and at all times
maintain and preserve all property material to the conduct of such business and keep such property
in good repair, working order and condition (except in respect of ordinary wear and tear and
casualty damage) and from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be conducted substantially as currently conducted at all
times.



     SECTION 5.02. Insurance. (a) Keep its insurable properties adequately insured at all times
by financially sound and reputable insurers; maintain such other insurance, to such extent and
against such risks, including fire and other risks insured against by extended coverage, as is
prudent in the reasonable business judgment of the Borrower, including public liability insurance
against claims for personal injury or death or property damage occurring upon, in, about or in
connection with the use of any properties owned, occupied or controlled by it; and maintain such
other insurance as may be required by law.



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     (b) Cause all such policies covering any Collateral to be endorsed or otherwise amended to
include a customary lender’s loss payable endorsement, in form and substance reasonably
satisfactory to the Administrative Agent and the Collateral Agent, which endorsement shall provide
that, from and after the Closing Date, if the insurance carrier shall have received written notice
from the Administrative Agent or the Collateral Agent of the occurrence of an Event of Default, the
insurance carrier shall pay all proceeds otherwise payable to the Borrower or the Loan Parties
under such policies directly to the Collateral Agent; cause all such policies to provide that
neither the Borrower, the Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and to contain a “Replacement Cost Endorsement”, without any deduction for
depreciation, and such other provisions as the Administrative Agent or the Collateral Agent may
reasonably require from time to time to protect their interests; deliver original or certified
copies of all such policies to the Collateral Agent; cause each such policy to provide that it
shall not be cancelled, modified or not renewed (i) by reason of nonpayment of premium upon not
less than 10 days’ prior written notice thereof by the insurer to the Administrative Agent and the
Collateral Agent (giving the Administrative Agent and the Collateral Agent the right to cure
defaults in the payment of premiums) or (ii) for any other reason upon not less than 30 days’ prior
written notice thereof by the insurer to the Administrative Agent and the Collateral Agent; deliver
to the Administrative Agent and the Collateral Agent, prior to the cancellation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement policy (or other
evidence of renewal of a policy previously delivered to the Administrative Agent and the Collateral
Agent) together with evidence satisfactory to the Administrative Agent and the Collateral Agent of
payment of the premium therefor.



     (c) Notify the Administrative Agent and the Collateral Agent promptly whenever any separate
insurance concurrent in form or contributing in the event of loss with that required to be
maintained under this Section 5.02 is taken out by any Loan Party; and promptly deliver to the
Administrative Agent and the Collateral Agent a duplicate original copy of such policy or policies.



     SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other obligations promptly and
in accordance with their terms and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or in respect of its
property, before the same shall become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise that, if unpaid, might give rise to a Lien (other than
any Lien permitted pursuant to Section 6.02) upon such properties or any part thereof; provided,
however, that such payment and discharge shall not be required with respect to any such tax,
assessment, charge, levy or claim so long as the validity or amount thereof shall be contested in
good faith by appropriate proceedings and the Borrower shall have set aside on its books adequate
reserves with respect thereto in accordance with GAAP and such contest operates to suspend
collection of the contested obligation, tax, assessment or charge and enforcement of a Lien and, in
the case of a Mortgaged Property, there is no risk of forfeiture of such property.



     SECTION 5.04. Financial Statements, Reports, etc. In the case of the Borrower, furnish to
the Administrative Agent, which shall furnish to each Lender:



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     (a) within 90 days after the end of each Annual Reporting Period, its consolidated balance
sheet and related statements of income, stockholders’ equity and cash flows showing the financial
condition of the Borrower and its consolidated Subsidiaries as of the close of such Annual
Reporting Period and the results of its operations and the operations of such Subsidiaries during
such year, together with comparative figures for the immediately preceding Annual Reporting Period,
all audited by Pricewaterhouse Coopers LLP or other independent public accountants of recognized
national standing and accompanied by an opinion of such accountants (which opinion shall be without
a “going concern” or like qualification or exception and without any qualification or exception as
to the scope of such audit) to the effect that such consolidated financial statements fairly
present in all material respects the financial condition and results of operations of the Borrower
and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied together with a statement of such accountants that in connection with their audit, nothing
came to their attention that caused them to believe that the Borrower was not in compliance with
the terms, covenants, provisions or conditions of Sections 6.10 through 6.12 hereof insofar as they
relate to accounting terms;



     (b) within 45 days after the end of each of the first three Quarterly Reporting Periods of
each Annual Reporting Period, its consolidated balance sheet and related statements of income,
stockholders’ equity and cash flows showing the financial condition of the Borrower and its
consolidated Subsidiaries (excluding Network Publications Canada, Inc. prior to the delivery of a
Change of Reporting Period Notice) as of the close of such Quarterly Reporting Period and the
results of its operations and the operations of such Subsidiaries during such Quarterly Reporting
Period and the then elapsed portion of the Annual Reporting Period, and comparative figures for the
same periods in the immediately preceding Annual Reporting Period, all certified by one of its
Financial Officers as fairly presenting in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit adjustments;



     (c) within 30 days after the end of the first two Monthly Reporting Periods of each Quarterly
Reporting Period, its consolidated balance sheet and related statements of income and cash flows
showing the financial condition of the Borrower and its consolidated Subsidiaries (excluding
Network Publications Canada, Inc. prior to the delivery of a Change of Reporting Period Notice)
during such Monthly Reporting Period and the then elapsed portion of the Annual Reporting Period,
all certified by one of its Financial Officers as fairly presenting in all material respects the
financial condition and results of operations of the Borrower and its consolidated Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit
adjustments;



     (d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c)
above, a certificate of the Financial Officer opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to accounting matters and
disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or
Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature
and extent thereof and any corrective action taken or proposed to be taken with respect thereto and
(ii) in the case of a certificate delivered with the financial statements required by paragraph (a)
above, setting forth the Borrower’s calculation of Excess Cash Flow;



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     (e) concurrently with any delivery of consolidated financial statements under clause (a) or
(b) above, the related unaudited consolidating financial statements reflecting the adjustments
necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated
financial statements;



     (f) within 90 days after the beginning of each Annual Reporting Period of the Borrower, a
detailed consolidated budget for such Annual Reporting Period (including a projected consolidated
balance sheet and related statements of projected operations and cash flows as of the end of and
for such Annual Reporting Period and setting forth the assumptions used for purposes of preparing
such budget) and, promptly when available, any significant revisions of such budget;



     (g) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary
with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all
of the functions of said Commission, or with any national securities exchange, or distributed to
its shareholders, as the case may be;



     (h) promptly after the receipt thereof by Holdings or the Borrower or any of their respective
subsidiaries, a copy of any “management letter” received by any such Person from its certified
public accountants and the management’s response thereto;



     (i) promptly after the request by any Lender, all documentation and other information that
such Lender reasonably requests in order to comply with its ongoing obligations under applicable
“know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT
Act; and



     (j) promptly, from time to time, such other information regarding the operations, business
affairs and financial condition of Holdings, the Borrower or any Subsidiary, or compliance with the
terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.



     SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative Agent and each
Lender prompt written notice of the following:



     (a) any Event of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) taken or proposed to be taken with respect thereto;



     (b) the filing or commencement of, or any threat or notice of intention of any Person to file
or commence, any action, suit or proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof that could reasonably be
expected to result in a Material Adverse Effect;



     (c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events
that have occurred, could reasonably be expected to result in liability of the Borrower and the
Subsidiaries in an aggregate amount exceeding $1,000,000;



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



     (e) any change in the ratings of the Credit Facilities by S&P or Moody’s, or any notice from
either such agency indicating its intent to effect such a change or to place the Borrower or the
Credit Facilities on a “CreditWatch” or “WatchList” or any similar list, in each case with negative
implications, or its cessation of, or its intent to cease, rating the Credit Facilities.



     SECTION 5.06. Information Regarding Collateral. (a) Furnish to the Administrative Agent
prompt written notice of any change (i) in any Loan Party’s corporate name, (ii) in the
jurisdiction of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or
corporate structure or (iv) in any Loan Party’s Federal Taxpayer Identification Number. Holdings
and the Borrower agree not to effect or permit any change referred to in the preceding sentence
unless all filings have been made under the Uniform Commercial Code or otherwise that are required
in order for the Collateral Agent to continue at all times following such change to have a valid,
legal and perfected security interest in all the Collateral. Holdings and the Borrower also agree
promptly to notify the Administrative Agent if any material portion of the Collateral is damaged or
destroyed.



     (b) In the case of the Borrower, each year, at the time of delivery of the annual financial
statements with respect to the preceding Annual Reporting Period pursuant to Section 5.04(a),
deliver to the Administrative Agent a certificate of a Financial Officer setting forth the
information required pursuant to Section 2 of the Perfection Certificate or confirming that there
has been no change in such information since the date of the Perfection Certificate delivered on
the Closing Date or the date of the most recent certificate delivered pursuant to this Section
5.06.



     SECTION 5.07. Maintaining Records; Access to Properties and Inspections; Maintenance of
Ratings. (a) Keep proper books of record and account in which full, true and correct entries in
conformity with GAAP and all requirements of law are made of all dealings and transactions in
relation to its business and activities. Each Loan Party will, and will cause each of its
subsidiaries to, permit during regular business hours and upon reasonable prior notice any
representatives designated by the Administrative Agent to visit and inspect the financial records
and the properties of such Person at reasonable times and as often as reasonably requested and to
make extracts from and copies of such financial records, and permit any representatives designated
by the Administrative Agent to discuss the affairs, finances and condition of such Person with the
officers thereof and independent accountants therefor (provided that a member of management of the
applicable Loan Party shall be afforded a reasonable opportunity to be present at any meeting with
such accountants).



     (b) In the case of Holdings and the Borrower, use commercially reasonable efforts to cause
the Credit Facilities to be continuously rated by S&P and Moody’s.



     SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only for the purposes specified
in the introductory statement to this Agreement.



     SECTION 5.09. Employee Benefits. (a) Comply in all material respects with the applicable
provisions of ERISA and the Code and the laws applicable to any Foreign Pension



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Plan and (b) furnish to the Administrative Agent as soon as possible after, and in any event
within ten days after any responsible officer of Holdings, the Borrower or any ERISA Affiliate
knows or has reason to know that, any ERISA Event has occurred that, alone or together with any
other ERISA Event could reasonably be expected to result in liability of Holdings, the Borrower or
any ERISA Affiliate in an aggregate amount exceeding $1,000,000, a statement of a Financial Officer
of Holdings or the Borrower setting forth details as to such ERISA Event and the action, if any,
that Holdings or the Borrower proposes to take with respect thereto.



     SECTION 5.10. Compliance with Environmental Laws. Comply, and cause all lessees and other
Persons occupying its properties to comply, in all material respects with all Environmental Laws
applicable to its operations and properties; obtain and renew all material environmental permits
necessary for its operations and properties; and conduct any remedial action in accordance with
Environmental Laws in all material respects; provided, however, that none of Holdings, the Borrower
or any Subsidiary shall be required to undertake any remedial action required by Environmental Laws
to the extent that its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to such circumstances in
accordance with GAAP.



     SECTION 5.11. Preparation of Environmental Reports. If a Default caused by reason of a
breach of Section 3.17 or Section 5.10 shall have occurred and be continuing for more than 30 days
without Holdings, the Borrower or any Subsidiary commencing activities reasonably likely to cure
such Default (as determined by the Borrower in good faith in consultation with the Administrative
Agent), at the written request of the Required Lenders through the Administrative Agent, provide to
the Lenders within 60 days after such request, at the expense of the Loan Parties, an environmental
site assessment report regarding the matters which are the subject of such Default prepared by an
environmental consulting firm reasonably acceptable to the Administrative Agent and indicating the
presence or absence of Hazardous Materials and the estimated cost of any compliance or remedial
action in connection with such Default.



     SECTION 5.12. Further Assurances. (a) Execute any and all further documents, financing
statements, agreements and instruments, and take all further action (including filing Uniform
Commercial Code and other financing statements, mortgages and deeds of trust) that may be required
under applicable law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and perfect the validity and first priority of
the security interests created or intended to be created by the Security Documents. The Borrower
will cause each subsequently acquired or organized Domestic Restricted Subsidiary, each
Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary and, to the extent no
adverse tax consequences to the Borrower would result therefrom (as reasonably determined in good
faith by the Borrower), each subsequently acquired or organized Foreign Subsidiary to become a Loan
Party by executing the Guarantee, Collateral and Intercreditor Agreement and each applicable
Security Document in favor of the Collateral Agent. In addition, from time to time, the Borrower
will, at its cost and expense, promptly secure the Obligations by pledging or creating, or causing
to be pledged or created, perfected security interests with respect to such of its assets and
properties as the Administrative Agent or the Required Lenders shall designate (it being understood
that it is the intent of the parties that the Obligations shall be secured by substantially all the
assets of the Borrower and its Restricted Subsidiaries (including



69









 







real and other properties acquired subsequent to the Closing Date)). Such security interests
and Liens will be created under the Security Documents and other security agreements, mortgages,
deeds of trust and other instruments and documents in form and substance reasonably satisfactory to
the Collateral Agent, and the Borrower shall deliver or cause to be delivered to the Lenders all
such instruments and documents (including legal opinions, title insurance policies and lien
searches) as the Collateral Agent shall reasonably request to evidence compliance with this
Section 5.12 and shall cause any Mortgaged Property to be covered by insurance arrangements
reasonably satisfactory to the Collateral Agent. The Borrower agrees to provide such evidence as
the Collateral Agent shall reasonably request as to the perfection and priority status of each such
security interest and Lien. In furtherance of the foregoing, the Borrower will give prompt notice
to the Administrative Agent of the acquisition by it or any of the Restricted Subsidiaries of any
real property (or any interest in real property) having a value in excess of $250,000 (any such
property (or interest) as the Administrative Agent or the Required Lenders shall designate in
writing, the “Mortgaged Properties”).



     (b) With respect to any Mortgaged Property, (i) duly execute and deliver to the Collateral
Agent the Mortgage relating thereto, which Mortgage shall be in full force and effect (and each
such Mortgaged Property shall not be subject to any Lien (other than those permitted under Section
6.02)), (ii) file and record such Mortgage in the applicable recording office designated in
writing by the Borrower or other applicable Loan Party (or deliver to the Collateral Agent a
lender’s title insurance policy, in form and substance acceptable to the Collateral Agent, insuring
such Mortgage as a first lien on such Mortgaged Property (subject to any Lien permitted under
Section 6.02)) and, in connection therewith, deliver to the Collateral Agent evidence satisfactory
to it of each such filing and recordation and (iii) deliver to the Collateral Agent such other
documents, including a policy or policies of title insurance issued by a nationally recognized
title insurance company, together with such endorsements, coinsurance and reinsurance as may be
requested by the Collateral Agent and the Lenders, insuring such Mortgage as a valid first lien on
such Mortgaged Property, free of Liens (other than those permitted under Section 6.02), together
with such surveys, abstracts, appraisals and legal opinions required to be furnished pursuant to
the terms of such Mortgage or as reasonably requested by the Collateral Agent or the Required
Lenders.



     SECTION 5.13. Maintenance of Corporate Separateness. Satisfy, and cause each of its
Subsidiaries to satisfy, customary corporate or limited liability company formalities, including
the maintenance of corporate and business records. No Loan Party nor any Subsidiary shall make any
payment to a creditor of another Loan Party or Subsidiary (other than pursuant to a Guarantee by
the first Loan Party) in respect of any liability of such other Loan Party or Subsidiary, and no
bank account of any Loan Party or Subsidiary shall be commingled with any bank account of any other
Loan Party or Subsidiary. Any financial statements distributed to any creditors of any Loan Party
or any Subsidiary shall, to the extent permitted under GAAP, clearly establish the corporate
separateness of each Loan Party and each Subsidiary from each other Loan Party and each other
Subsidiary. No Loan Party nor any Subsidiary shall take any action, or conduct its affairs in a
manner, which is reasonably likely to result in the corporate existence of such Loan Party or
Subsidiary, or any other Loan Party or Subsidiary, being ignored, or in the assets and liabilities
of any Loan Party or Subsidiary being substantively consolidated with those of any other Loan Party
or Subsidiaries in a bankruptcy, reorganization or other insolvency proceeding.



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ARTICLE VI




Negative Covenants




     Each of Holdings and the Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees and all other expenses or amounts payable under
any Loan Document have been paid in full, unless the Required Lenders shall otherwise consent in
writing:



     SECTION 6.01. Limitation on Indebtedness. (a) The Borrower will not, and will not permit
any Restricted Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however,
that the Borrower or any Subsidiary Guarantor will be entitled to Incur Indebtedness if, on the
date of such Incurrence and after giving effect thereto on a pro forma basis, (i) the Consolidated
Leverage Ratio would be less than (A) 5.75 to 1.00 if such Indebtedness is Incurred on or prior to
November 30, 2008, or (B) 5.50 to 1.00 if such Indebtedness is Incurred after November 30, 2008,
and (ii) if such Indebtedness to be Incurred is Senior Indebtedness, then the Senior Leverage
Ratio would be less than 5.00 to 1.00.



     (b) Notwithstanding the foregoing paragraph (a), the Borrower and the Restricted Subsidiaries
will be entitled to Incur any or all of the following Indebtedness:




     (i) Indebtedness Incurred by the Borrower or any Subsidiary Guarantor pursuant hereto
and the other Loan Documents and pursuant to the Revolving Loan Credit Agreement; provided,
however, that, immediately after giving effect to any such Incurrence, the aggregate
principal amount of all Indebtedness Incurred under this clause (i) and then outstanding
does not exceed the greater of (A) $111,635,902 less the sum of all principal payments with
respect to such Indebtedness pursuant to Section 2.13 and (B) the sum of (1) 50% of the book
value of the inventory of the Borrower and its Restricted Subsidiaries and (2) 80% of the
book value of the accounts receivable of the Borrower and is Restricted Subsidiaries;




     (ii) Indebtedness owed to and held by the Borrower or a Restricted Subsidiary;
provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which
results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Borrower or a Restricted
Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such Indebtedness
by the obligor thereon, (B) if the Borrower is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in cash of the
Obligations, and (C) if a Subsidiary Guarantor is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in cash of all
obligations of such Subsidiary Guarantor with respect to its Subsidiary Guarantee.




     (iii) the incurrence by the Borrower and any Subsidiary Guarantor of Indebtedness
represented by the Senior Notes issued on the Closing Date (including Guarantees thereof)
and the exchange notes and related exchange Guarantees to be issued



71









 







in exchange for the Senior Notes pursuant to the registration rights agreement entered
into with the initial purchasers of the Senior Notes in connection with the issuance thereof
(other than any Additional Notes (as defined in the Senior Note Indenture));




     (iv) Indebtedness outstanding on the Closing Date (other than Indebtedness described
in clauses (i), (ii) or (iii) of this paragraph (b)) and set forth in Schedule 6.01;




     (v) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to
the date on which such Subsidiary was acquired by the Borrower (other than Indebtedness
Incurred in connection with, or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related transactions pursuant to which
such Subsidiary became a Subsidiary or was acquired by the Borrower); provided, however,
that on the date of such acquisition and after giving pro forma effect thereto, the Borrower
would have been entitled to Incur at least $1.00 of additional Indebtedness pursuant to
paragraph (a) of this Section 6.01;




     (vi) Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to
paragraph (a) of this Section 6.01 or clauses (iii), (iv), (v), (x) or this clause (vi) of
this paragraph (b); provided, however, that to the extent such Refinancing Indebtedness
directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to
clause (v) of this paragraph (b), such Refinancing Indebtedness shall be Incurred only by
such Subsidiary;




     (vii) Hedging Obligations consisting of (A) Interest Rate Agreements or Currency
Agreements entered into in the ordinary course of business and not for the purpose of
speculation and directly related to Indebtedness permitted to be Incurred by the Borrower
and its Restricted Subsidiaries pursuant to this Agreement, or (B) Commodity Agreements
related to the prices of raw materials purchased by the Borrower and its Restricted
Subsidiaries;




     (viii) Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently drawn against insufficient funds in
the ordinary course of business; provided, however, that such Indebtedness is extinguished
within five Business Days of its Incurrence;




     (ix) any Guarantee by the Borrower or a Subsidiary Guarantor of Indebtedness of the
Borrower or any Subsidiary so long as the Incurrence of such Indebtedness by the Borrower or
such Subsidiary Guarantor is permitted under the terms of this Agreement;




     (x) Indebtedness of the Borrower and its Restricted Subsidiaries, to the extent the
proceeds thereof are immediately used after the Incurrence thereof to purchase Loans
tendered in an offer to prepay made as a result of a Change of Control;




     (xi) Indebtedness (including Capital Lease Obligations) Incurred by the Borrower or
any Restricted Subsidiary to finance the purchase, lease or improvement of property (real or
personal) or equipment that is used or useful in a Related Business (whether through the
direct purchase of assets or the Capital Stock of any Person owning such assets) and any
Indebtedness that Refinances any Indebtedness Incurred under this clause



72









 







(xi); provided, however, that the aggregate principal amount of all Indebtedness then
outstanding and incurred pursuant to this clause (xi) does not exceed the greater of (A)
$15,000,000 and (B) 3.0% of Consolidated Total Assets;




     (xii) Indebtedness Incurred by the Borrower or any Restricted Subsidiary constituting
reimbursement obligations with respect to letters of credit issued in the ordinary course of
business, including letters of credit in respect of workers’ compensation claims, health,
disability or other employee benefits or property, casualty or liability insurance or
self-insurance or other Indebtedness with respect to reimbursement-type obligations
regarding workers’ compensation claims; provided, however, that upon the drawing of such
letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed
within 30 days following such drawing or incurrence;




     (xiii) Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary
providing for indemnification, adjustments to purchase price or similar obligations, in each
case, Incurred or assumed in connection with the acquisition or disposition of any business,
assets or a Subsidiary, other than Guarantees of Indebtedness Incurred by any Person
acquiring all or any portion of such disposed business, assets or a Subsidiary for the
purpose of financing such acquisition; provided, however, that the maximum assumable
liability in respect of all such Indebtedness shall at no time exceed the gross proceeds
including noncash proceeds (the fair market value of such noncash proceeds being measured at
the time received and without giving effect to any subsequent changes in value) actually
received by the Borrower and any Restricted Subsidiaries in connection with such
disposition;




     (xiv) obligations in respect of performance, bid, surety and appeal bonds and
performance and completion guarantees provided by the Borrower or any Restricted Subsidiary
or obligations in respect of letters of credit related thereto, in each case in the ordinary
course of business or consistent with past practice;




     (xv) Indebtedness Incurred by a Securitization Subsidiary in a Qualified
Securitization Financing that is not recourse (except for Standard Securitization
Undertakings) to the Borrower or any of its Restricted Subsidiaries, other than a
Securitization Subsidiary;




     (xvi) Indebtedness consisting of promissory notes issued by the Borrower or any
Subsidiary Guarantor to current or former officers, directors and employees, their
respective estates, spouses or former spouses to finance the purchase or redemption of
Capital Stock of the Borrower or any of its direct or indirect parent entities permitted by
Section 6.03;




     (xvii) Indebtedness Incurred by a Foreign Subsidiary in an aggregate principal amount
which, when taken together with all other Indebtedness of Foreign Subsidiaries Incurred
pursuant to this clause (xvii) and then outstanding, does not exceed the greater of
(A) $5,000,000 and (B) 5% of Consolidated Foreign Assets as of the end of the



73









 







Borrower’s most recent Quarterly Reporting Period for which financial statements are
available; and




     (xviii) Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate
principal amount which, when taken together with all other Indebtedness of the Borrower and
the Restricted Subsidiaries outstanding on the date of such Incurrence and Incurred pursuant
to this clause (xviii), does not exceed $10,000,000.



     (c) For purposes of determining compliance with this Section 6.01:




     (i) any Indebtedness Incurred under the Credit Agreements will be treated as Incurred
on the Closing Date under clause (i) of paragraph (b) of this Section 6.01;




     (ii) in the event that an item of Indebtedness (or any portion thereof) meets the
criteria of more than one of the types of Indebtedness described above, the Borrower, in its
sole discretion, will classify such item of Indebtedness (or any portion thereof) at the
time of Incurrence and will only be required to include the amount and type of such
Indebtedness in one of the above clauses;




     (iii) the Borrower will be entitled to divide and classify an item of Indebtedness in
more than one of the types of Indebtedness described above; and




     (iv) following the date of its Incurrence, any Indebtedness originally classified as
Incurred pursuant to paragraph (a) of this Section 6.01 or pursuant to any clause in
paragraph (b) of this Section 6.01 (other than clause (i) of such paragraph (b)) may later
be reclassified by the Borrower such that it will be deemed as having been Incurred pursuant
to such paragraph (a) or any clause of such paragraph (b) to the extent that such
reclassified Indebtedness could be Incurred pursuant to such paragraph (a) or such clause of
such paragraph (b) at the time of such reclassification.



     SECTION 6.02. Limitation on Liens. The Borrower will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, Incur or permit to exist any Lien of any nature whatsoever
on any of its properties (including Capital Stock of a Restricted Subsidiary), whether owned on the
Closing Date or thereafter acquired, securing any Indebtedness, other than Permitted Liens.



     SECTION 6.03. Limitation on Restricted Payments. (a) The Borrower will not, and will not
permit any Restricted Subsidiary, directly or indirectly, to make a Restricted Payment if at the
time the Borrower or such Restricted Subsidiary makes such Restricted Payment:




     (i) a Default shall have occurred and be continuing (or would result therefrom);




     (ii) the Borrower is not entitled to Incur an additional $1.00 of Indebtedness
pursuant to Section 6.01(a); or




     (iii) the aggregate amount of such Restricted Payment and all other Restricted
Payments (the amount of any payments made in property other than in cash to be valued at the
Fair Market Value of such property) since the Closing Date would exceed 50% of



74









 







the Consolidated Net Income accrued during the period (treated as one accounting
period) from October 1, 2005 to the end of the most recent Quarterly Reporting Period for
which internal financial statements are available prior to the date of such Restricted
Payment (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such
deficit).



     (b) The provisions of paragraph (a) of this Section 6.03 shall not prohibit:




     (i) any Restricted Payment made out of the Net Cash Proceeds of the substantially
concurrent sale of, or made by exchange for, Capital Stock of the Borrower (other than
Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the
Borrower or an employee stock ownership plan or to a trust established by the Borrower or
any of its Subsidiaries for the benefit of their employees and provided, however, that if
such issuance or sale shall constitute a Specified Equity Issuance, the amount of the Net
Cash Proceeds therefrom for purposes of this clause (i) shall be reduced by the amount of
such Net Cash Proceeds that is required to be applied to prepay outstanding Loans pursuant
to Section 2.13(b)) or a substantially concurrent cash capital contribution received by the
Borrower from its shareholders; provided, however, that (A) such Restricted Payment shall be
excluded in the calculation of the amount of Restricted Payments and (B) the Net Cash
Proceeds from such sale or such cash capital contribution (to the extent so used for such
Restricted Payment) shall be excluded from the calculation of amounts under clause (iii)(B)
of paragraph (a) of this Section 6.03;




     (ii) any purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Obligations of the Borrower or a Subsidiary Guarantor
made by exchange for, or out of the proceeds of the substantially concurrent Incurrence of,
other Subordinated Obligations of such Person which is permitted to be Incurred pursuant to
Section 6.01; provided, however, that such purchase, repurchase, redemption, defeasance or
other acquisition or retirement for value shall be excluded in the calculation of the amount
of Restricted Payments;




     (iii) dividends paid within 60 days after the date of declaration thereof if at such
date of declaration such dividend would have complied with this covenant; provided, however,
that the payment of such dividend (but not the declaration) shall be excluded in the
calculation of the amount of Restricted Payments;




     (iv) so long as no Default has occurred and is continuing, the purchase, redemption or
other acquisition of shares of Capital Stock of the Borrower, any of its direct or indirect
parent entities (including Holdings) or any of its Subsidiaries from employees, former
employees, directors, former directors, consultants or former consultants of the Borrower or
any of its Subsidiaries (or permitted transferees of such employees, former employees,
directors, former directors, consultants or former consultants), pursuant to the terms of
the agreements (including employment agreements) or plans (or amendments thereto) approved
by the Board of Directors under which such individuals purchase or sell or are granted the
option to purchase or sell, shares of such Capital Stock; provided, however, that the
aggregate amount of such Restricted Payments (excluding amounts representing cancellation of
Indebtedness) shall not exceed



75









 







$5,000,000; provided further, however, that such amount in any calendar year may be
increased by an amount not to exceed (A) the cash proceeds from the sale of Capital Stock
(other than Disqualified Stock) of the Borrower and, to the extent contributed to the
Borrower from the sale of Capital Stock of any of its direct or indirect parent entities, in
each case to members of management, directors or consultants of the Borrower, any of its
Subsidiaries or any of its direct or indirect parent entities that occurs after the Closing
Date plus (B) the cash proceeds of “key man” life insurance policies received by the
Borrower or its Restricted Subsidiaries after the Closing Date less (C) the amount
of any Restricted Payments previously made pursuant to clauses (A) and (B) of this
clause (iv) (provided, however, that the Borrower may elect to apply all or any portion of
the aggregate increase contemplated by such clauses (A) and (B) to an increase in the amount
of Restricted Payments that may be made pursuant to clause (iii) of paragraph (a) of this
Section 6.03); provided further, however, that such repurchases and other acquisitions shall
be excluded in the calculation of the amount of Restricted Payments;




     (v) the declaration and payments of dividends on Disqualified Stock issued pursuant to
Section 6.01; provided, however, that at the time of payment of such dividend, no Default
shall have occurred and be continuing (or result therefrom); provided further, however, that
such dividends shall be excluded in the calculation of the amount of Restricted Payments;




     (vi) repurchases of Capital Stock deemed to occur upon exercise of stock options if
such Capital Stock represents a portion of the exercise price of such options; provided,
however, that such Restricted Payments shall be excluded in the calculation of the amount of
Restricted Payments;




     (vii) cash payments in lieu of the issuance of fractional shares in connection with
the exercise of warrants, options or other securities convertible into or exchangeable for
Capital Stock of the Borrower; provided, however, that any such cash payment shall not be
for the purpose of evading the limitations set forth in this Section 6.03 (as determined in
good faith by the Board of Directors); provided further, however, that such payments shall
be excluded in the calculation of the amount of Restricted Payments;




     (viii) in the event of a Change of Control, and if no Default shall have occurred and
be continuing, the payment, purchase, redemption, defeasance or other acquisition or
retirement of Subordinated Obligations of the Borrower or any Subsidiary Guarantor or
Preferred Stock of the Borrower or any Restricted Subsidiary, in each case, at a purchase
price not greater than 101% of the principal amount of such Subordinated Obligations, or
101% of the liquidation preference or face amount of such Preferred Stock, plus, in each
case any accrued and unpaid interest or dividends thereon; provided, however, that prior to
such payment, purchase, redemption, defeasance or other acquisition or retirement, the
Borrower (or a third party to the extent permitted by this Agreement) has made a Change of
Control Offer with respect to the Loans as a result of such Change of Control and has
prepaid all Loans validly tendered and not withdrawn in connection with such Change of
Control Offer; provided further, however, that such payments, purchases, redemptions,
defeasances or other acquisitions or retirements shall be included in the calculation of the
amount of Restricted Payments;



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     (ix) payments of intercompany subordinated Indebtedness, the Incurrence of which was
permitted under Section 6.01; provided, however, that no Default has occurred and is
continuing or would otherwise result therefrom; provided further, however, that such
payments shall be excluded in the calculation of the amount of Restricted Payments;




     (x) the declaration and payment of dividends or distributions to holders of any class
or series of Designated Preferred Stock issued after the Closing Date and the declaration
and payment of dividends to any direct or indirect parent entity of the Borrower the
proceeds of which will be used to fund the payment of dividends to holders of any class or
series of Designated Preferred Stock of any direct or indirect parent entity of the Borrower
issued after the Closing Date; provided, however, that (A) for the most recently ended four
full Quarterly Reporting Periods for which internal financial statements are available
immediately preceding the date of issuance of such Designated Preferred Stock, after giving
effect to such issuance (and the payment of dividends or distributions thereon that would be
payable during such four full Quarterly Reporting Periods) on a pro forma basis, the
Borrower would have had a Consolidated Coverage Ratio of at least 2.0 to 1.0 and (B) the
aggregate amount of dividends declared and paid pursuant to this clause (x) does not exceed
the Net Cash Proceeds actually received by the Borrower from any such sale of such
Designated Preferred Stock issued after the Closing Date, less the amount of such Net Cash
Proceeds that is required to prepay outstanding Loans pursuant to Section 2.13(b); provided
further, however, that such Restricted Payments shall be excluded in the calculation of the
amount of Restricted Payments;




     (xi) Investments in Unrestricted Subsidiaries having an aggregate fair market value,
taken together with all other Investments made pursuant to this clause (xi) that are at the
time outstanding, not to exceed $7,500,000 (with the fair market value of each Investment
being measured at the time made and without giving effect to subsequent changes in value);
provided, however, that such Restricted Payments shall be excluded in the calculation of the
amount of Restricted Payments;




     (xii) the payment of dividends on the Borrower’s common stock following the first
public offering of the Borrower’s common stock or the common stock of Holdings after the
Closing Date, of up to 6.0% per annum of the Net Cash Proceeds received by or contributed to
the Borrower after the Closing Date in any such public offering, other than public offerings
with respect to the Borrower’s common stock or the common stock of such parent entities
registered on Form S-4 or Form S-8; provided, however, that such Restricted Payments shall
be included in the calculation of the amount of Restricted Payments;




     (xiii) Investments that are made with Excluded Contributions; provided, however, that
such Restricted Payments shall be excluded in the calculation of the amount of Restricted
Payments;




     (xiv) distributions or payments of Securitization Fees and purchases of Securitization
Assets pursuant to a Securitization Repurchase Obligation in connection



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with a Qualified Securitization Financing; provided, however, that such Restricted
Payments shall be excluded in the calculation of the amount of Restricted Payments;




     (xv) the declaration and payment of dividends to, or the making of loans to, Parent
(or to Holdings to enable it to declare and pay dividends to Parent) in amounts required for
Parent to pay, without duplication:




     (A) franchise taxes and other fees, taxes and expenses required to maintain its
corporate existence;




     (B) customary salary, bonus, severance and other benefits payable to, and
indemnities provided on behalf of, officers and employees of Parent or Holdings to
the extent such salaries, bonuses, severance, indemnities and other benefits are
attributable to the ownership or operation of the Borrower and its Restricted
Subsidiaries;




     (C) general corporate overhead expenses for Parent or Holdings to the extent
such expenses are attributable to the ownership or operation of the Borrower and its
Restricted Subsidiaries; and




     (D) reasonable fees and expenses incurred in connection with any unsuccessful
debt or equity offering by Parent or Holdings; provided, however, that such
Restricted Payments shall be excluded in the calculation of the amount of Restricted
Payments;




     (xvi) the payment to Parent of an amount equal to the aggregate amount of management,
consulting, monitoring and advisory fees and related reasonable expenses that Parent is
obligated to pay to the Sponsor or any of its Affiliates (without duplication of any similar
amounts payable by the Borrower) pursuant to the Management Agreement or any amendment
thereto (so long as any such amendment is not less advantageous to the Lenders in any
material respect than the Management Agreement); provided, however, that at the time of and
after giving effect to such payment, no Default shall have occurred and be continuing or
would occur as a consequence thereof; provided further, however, that such Restricted
Payments shall be excluded in the calculation of the amount of Restricted Payments;




     (xvii) payments to Parent in connection with the existence of, or the performance by
such parent entity of its obligations under the terms of, the Shareholders Agreement
(including any registration rights agreement or purchase agreements related thereto to which
it is a party on the Closing Date and any similar agreement that it may enter into
thereafter); provided, however, that at the time of and after giving effect to such payment,
no Default shall have occurred and be continuing or would occur as a consequence thereof;
provided further, however, that the existence of, or the performance by such parent entity
of its obligations under, any future amendment to the Shareholders Agreement or under any
similar agreement entered into after the Closing Date shall only be permitted by this
clause (xvii) to the extent that the terms of any such existing agreement together with all
amendments thereto, taken as a whole, or new agreement are



78









 







not otherwise more disadvantageous to Lenders in any material respect than the original
agreement as in effect on the Closing Date; provided further, however, that such Restricted
Payments shall be excluded in the calculation of the amount of Restricted Payments;




     (xviii) for so long as the Borrower is a member of a group filing a consolidated or
combined tax return with Parent, payments to Parent in respect of an allocable portion of
the tax liabilities of such group that is attributable to the Borrower and the Restricted
Subsidiaries (“Tax Payments”); provided, however, that the aggregate Tax Payments made since
the Closing Date shall not exceed the lesser of:




     (A) the aggregate amount since the Closing Date of the relevant tax (including
any penalties and interest) that the Borrower would owe if the Borrower were filing
a separate tax return (or a separate consolidated or combined return with the
Restricted Subsidiaries that are members of the Borrower’s consolidated or combined
group), taking into account any carryovers and carrybacks of tax attributes (such as
net operating losses) of the Borrower and such Restricted Subsidiaries from other
taxable years; and




     (B) the aggregate amount of the relevant tax that Parent actually owes to the
appropriate taxing authority after the Closing Date; provided further, however, that
(1) any Tax Payments received from the Borrower shall be paid over to the
appropriate taxing authority within 30 days of Parent’s receipt of such Tax Payments
or refunded to the Borrower and (2) such Tax Payments shall be excluded in the
calculation of the amount of Restricted Payments;




     (xix) payments to Parent to the extent necessary to enable Parent to retire in full,
including accrued and unpaid interest and any prepayment penalties associated therewith, the
Existing PIK Notes outstanding on the Closing Date; provided, however, that the Consolidated
Leverage Ratio of the Borrower, after giving effect to the making of such payments and the
Incurrence of any Indebtedness related thereto, shall be less than 4.5 to 1.0; provided
further, however, that such Restricted Payments shall be excluded in the calculation of the
amount of Restricted Payments; or




     (xx) Restricted Payments in an amount which, when taken together with all Restricted
Payments made pursuant to this clause (xx), does not exceed $7,500,000; provided, however,
that (A) at the time of each such Restricted Payment, no Default shall have occurred and be
continuing (or result therefrom) and (B) such dividends shall be excluded in the calculation
of the amount of Restricted Payments.




     SECTION 6.04. Limitation on Restrictions on Distributions from Restricted Subsidiaries. The
Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or
permit to exist or become effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (x) pay dividends or make any other distributions on its Capital Stock to
the Borrower or a Restricted Subsidiary or pay any Indebtedness owed to the Borrower, (y) make any
loans or advances to, or repay any loans or advances from, the Borrower or (z) transfer any of its
property or assets to the Borrower, except:



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     (a) with respect to clauses (x), (y) and (z) above,




     (i) any encumbrance or restriction pursuant to an agreement in effect at or entered
into on the Closing Date;




     (ii) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant
to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary on or
prior to the date on which such Restricted Subsidiary was acquired by the Borrower (other
than Indebtedness Incurred as consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or
was acquired by the Borrower) and outstanding on such date;




     (iii) any encumbrance or restriction pursuant to an agreement effecting a Refinancing
of Indebtedness Incurred pursuant to an agreement referred to in clause (i) or (ii) above or
this clause (iii) or contained in any amendment to an agreement referred to in clause (i) or
(ii) above or this clause (iii); provided, however, that the encumbrances and restrictions
with respect to such Restricted Subsidiary contained in any such refinancing agreement or
amendment are no less favorable to the Lenders than encumbrances and restrictions with
respect to such Restricted Subsidiary contained in such predecessor agreements;




     (iv) any encumbrance or restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all or substantially
all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such
sale or disposition;




     (v) any encumbrance or restriction existing under Indebtedness or other contractual
requirements of a Securitization Subsidiary in connection with a Qualified Securitization
Financing; provided, however, that such restrictions apply only to such Securitization
Subsidiary; and




     (vi) restrictions in agreements governing Indebtedness Incurred after the Closing Date
that are, taken as a whole, no less favorable in any material respect to the Lenders than
restrictions contained in agreements governing Indebtedness in effect on the Closing Date;



     (b) with respect to clause (z) above only,




     (i) any encumbrance or restriction consisting of customary nonassignment provisions in
leases governing leasehold interests to the extent such provisions restrict the transfer of
the lease or the property leased thereunder;




     (ii) any encumbrance or restriction contained in security agreements, pledges, or
mortgages securing Indebtedness or in Capital Lease Obligations of a Restricted Subsidiary
to the extent such encumbrance or restriction restricts the transfer of the property subject
to such security agreements, pledges, mortgages or Capital Lease Obligations;



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     (iii) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;




     (iv) any encumbrance or restriction consisting of customary provisions limiting the
disposition or distribution of assets or property in joint venture agreements, license
agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and
other similar agreements entered into with the approval of the Board of Directors, which
limitation is applicable only to the assets that are the subject of such agreements;




     (v) restrictions arising from any transfer of, agreement to transfer, option or right
with respect to, or Lien on, any property or assets of the Borrower or any Restricted
Subsidiary not otherwise prohibited by this Agreement;




     (vi) restrictions pursuant to customary provisions restricting dispositions of real
property interests set forth in any reciprocal easement agreements of the Borrower or any
Restricted Subsidiary; and




     (vii) any encumbrance or restriction arising under applicable law, rule, regulation or
order.



     SECTION 6.05. Limitation on Sales of Assets and Subsidiary Stock. (a) The Borrower will
not, and will not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset
Sale unless:




     (i) the Borrower or such Restricted Subsidiary receives consideration at the time of
such Asset Sale at least equal to the Fair Market Value (including as to the value of all
non-cash consideration), as determined in good faith by the Board of Directors, of the
            shares and assets subject to such Asset Sale;




     (ii) at least 75% of the consideration thereof received by the Borrower or such
Restricted Subsidiary is in the form of cash or cash equivalents or Additional Assets;
provided, however, that the 75% limitation set forth in this clause (ii) will not apply to
any Asset Sale in which the cash or cash equivalents received therefrom, determined in
accordance with paragraph (b) of this Section 6.05, are equal to or greater than the
after-tax cash and cash equivalents that would have been received therefrom had such
provision applied; and




     (iii) an amount equal to 100% of the Net Cash Proceeds from such Asset Sale is applied
by the Borrower in accordance with Section 2.13.



     (b) For the purposes of this Section 6.05, the following are deemed to be cash or cash
equivalents:




     (i) the assumption or discharge of liabilities of the Borrower (other than obligations
in respect of Disqualified Stock of the Borrower or in respect of liabilities that are by
their terms subordinated to the Obligations) or any Restricted Subsidiary (other than
obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor or
in respect of liabilities that are by their terms subordinated to the Subsidiary



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Guarantee of a Subsidiary Guarantor) and the release of the Borrower or such Restricted
Subsidiary from all liability on such liabilities in connection with such Asset Sale;




     (ii) securities received by the Borrower or any Restricted Subsidiary from the
transferee that are converted by the Borrower or such Restricted Subsidiary into cash within
180 days of the receipt of such securities, to the extent of the cash received in that
conversion; and




     (iii) Designated Noncash Consideration in an amount not to exceed in the aggregate at
any one time outstanding the greater of (A) $10,000,000 and (B) 2.0% of Consolidated Total
Assets as of the end of the Borrower’s most recent Quarterly Reporting Period for which
internal financial statements are available.



     SECTION 6.06. Limitation on Affiliate Transactions. (a) The Borrower will not, and will
not permit any Restricted Subsidiary to, enter into, make or amend any transaction (including the
purchase, sale, lease or exchange of any property, employee compensation arrangements or the
rendering of any service) with, or for the benefit of, any Affiliate of the Borrower (an “Affiliate
Transaction”) unless:




     (i) the terms of the Affiliate Transaction are no less favorable to the Borrower or
such Restricted Subsidiary than those that could be obtained at the time of the Affiliate
Transaction in arm’s-length dealings with a Person who is not an Affiliate;




     (ii) if such Affiliate Transaction involves an amount in excess of $5,000,000, the
terms of the Affiliate Transaction are set forth in writing and a majority of the directors
of the Borrower disinterested with respect to such Affiliate Transaction have determined in
good faith that the criteria set forth in clause (i) above are satisfied and have approved
the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors;
and




     (iii) if such Affiliate Transaction involves an amount in excess of $15,000,000, the
Board of Directors shall also have received a written opinion from an Independent Qualified
Party to the effect that such Affiliate Transaction is fair, from a financial standpoint, to
the Borrower and its Restricted Subsidiaries or is not less favorable to the Borrower and
its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in
an arm’s-length transaction with a Person who was not an Affiliate.



     (b) The provisions of paragraph (a) of this Section 6.06 shall not prohibit:




     (i) any Investment (other than an Investment described in clauses (a) and (b) of the
definition of “Permitted Investment”) or other Restricted Payment, in each case permitted to
be made pursuant to Section 6.03, other than a Restricted Payment made pursuant to Section
6.03(b)(i);




     (ii) any issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors;



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     (iii) loans or advances to employees in the ordinary course of business of the
Borrower or its Restricted Subsidiaries, but in any event not to exceed $2,000,000 in the
aggregate outstanding at any one time;




     (iv) the payment of reasonable fees to directors of the Borrower and its Restricted
Subsidiaries who are not employees of the Borrower or its Restricted Subsidiaries in the
ordinary course of business;




     (v) any transaction with the Borrower, a Restricted Subsidiary or joint venture or
similar entity which would constitute an Affiliate Transaction solely because the Borrower
or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted
Subsidiary, joint venture or similar entity;




     (vi) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the
Borrower;




     (vii) payments made by the Borrower or any Restricted Subsidiary to the Sponsor and
any of its Affiliates for any financial advisory, financing, underwriting or placement
services or in respect of other investment banking activities, including in connection with
acquisitions or divestitures, which payments are approved by a majority of the disinterested
members of the Board of Directors in good faith pursuant to the Management Agreement;




     (viii) transactions in which the Borrower or any Restricted Subsidiary delivers to the
Administrative Agent a letter from an Independent Qualified Party stating that such
transaction is fair to the Borrower or such Restricted Subsidiary from a financial point of
view or meets the requirements of clause (i) of paragraph (a) of this Section 6.06;




     (ix) the Transactions and the payment of all transaction, underwriting, commitment and
other fees and expenses incurred in connection with the Transactions;




     (x) transactions with customers, clients, suppliers, or purchasers or sellers of goods
or services, in each case in the ordinary course of business and otherwise in compliance
with the terms of this Agreement that are fair to the Borrower or its Restricted
Subsidiaries, in the reasonable determination of the members of the Board of Directors or
are on terms at least as favorable as would reasonably have been entered into at such time
with an unaffiliated party;




     (xi) the entering into of any tax sharing agreement or arrangement and the making of
any Tax Payments thereunder to the extent permitted by Section 6.03(b)(xviii);




     (xii) any contribution to the capital of the Borrower;




     (xiii) any agreement as in effect on the Closing Date or any renewals or extensions of
any such agreement (so long as such renewals or extensions are not less favorable to the
Borrower or the Restricted Subsidiaries) and the transactions evidenced thereby; and



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     (xiv) transactions between the Borrower or any of its Restricted Subsidiaries and any
Person, a director of which is also a director of the Borrower or any direct or indirect
parent company of the Borrower and such director is the sole cause for such Person to be
deemed an Affiliate of the Borrower or any of its Restricted Subsidiaries; provided,
however, that such director abstains from voting as director of the Borrower or such direct
or indirect parent company, as the case may be, on any matter involving such other Person.



     SECTION 6.07. Limitation on Line of Business. The Borrower will not, and will not permit any
Restricted Subsidiary, to engage in any business other than a Related Business except to the extent
as would not be material to the Borrower and the Restricted Subsidiaries, taken as a whole.



     SECTION 6.08. Merger and Consolidation. (a) The Borrower will not consolidate with or
merge with or into, or convey, transfer or lease, in one transaction or a series of transactions,
directly or indirectly, all or substantially all its assets to, any Person, unless:




     (i) the resulting, surviving or transferee Person (the “Successor Borrower”) shall be
a Person organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia and the Successor Company (if not the Borrower) shall
expressly assume, pursuant to a joinder agreement to this Agreement and supplements to the
Loan Documents or other documents or instruments in form and substance satisfactory to the
Administrative Agent, executed and delivered to the Administrative Agent, all the
obligations of the Borrower under this Agreement and the other Loan Documents;




     (ii) immediately after giving pro forma effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Borrower or any Restricted
Subsidiary as a result of such transaction as having been Incurred by such Successor
Borrower or such Restricted Subsidiary at the time of such transaction), no Default shall
have occurred and be continuing;




     (iii) immediately after giving pro forma effect to such transaction, (A) the Successor
Borrower would be able to Incur an additional $1.00 of Indebtedness pursuant to
Section 6.01(a) or (B) there would be no increase in the Consolidated Leverage Ratio
compared to that immediately prior to such transaction; provided, however, that this
clause (iii) will not be applicable to (x) a Restricted Subsidiary consolidating with,
merging into or transferring all or part of its properties and assets to the Borrower or to
another Restricted Subsidiary or (B) the Borrower merging with an Affiliate of the Borrower
solely for the purpose and with the sole effect of reincorporating the Borrower in another
jurisdiction; and




     (iv) the Borrower shall have delivered to the Administrative Agent an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such joinder agreement and such supplements to the Loan Documents and other
documents or instruments (if any) comply with this Agreement and the other Loan Documents.



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For purposes of this paragraph (a), the sale, lease, conveyance, assignment, transfer or other
disposition of all or substantially all of the properties and assets of one or more Subsidiaries of
the Borrower, which properties and assets, if held by the Borrower instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the Borrower on a
consolidated basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Borrower.




     The Successor Borrower will be the successor to the Borrower and shall succeed to, and be
substituted for, and may exercise every right and power of, the Borrower under this Agreement and
the other Loan Documents, and the predecessor Borrower, except in the case of a lease transaction,
shall be released from its obligations hereunder and thereunder.



     (b) The Borrower will not permit any Subsidiary Guarantor to consolidate with or merge with
or into, or convey, transfer or lease, in one transaction or a series of transactions, all or
substantially all of its assets to any Person unless:




     (i) the resulting, surviving or transferee Person (if not such Subsidiary) shall be a
Person organized and existing under the laws of the jurisdiction under which such Subsidiary
was organized or under the laws of the United States of America, or any State thereof or the
District of Columbia, and such Person shall expressly assume, by a supplement to the
Guarantee, Collateral and Intercreditor Agreement or other guaranty agreement and
supplements to the Loan Documents or other documents or instruments, in each case in a form
and substance satisfactory to the Administrative Agent, all the obligations of such
Subsidiary, if any, under its Subsidiary Guarantee and the other Loan Documents; provided,
however, that the foregoing shall not apply in the case of a Subsidiary Guarantor (A) that
has been disposed of in its entirety to another Person (other than to the Borrower or a
Subsidiary of the Borrower), whether through a merger, consolidation or sale of Capital
Stock or assets or (B) that, as a result of the disposition of all or a portion of its
Capital Stock, ceases to be a Subsidiary, in both cases, if in connection therewith the
Borrower provides an Officers’ Certificate to the Administrative Agent to the effect that
the Borrower will comply with its obligations under Section 6.05 in respect of such
disposition;




     (ii) immediately after giving effect to such transaction or transactions on a pro
forma basis (and treating any Indebtedness which becomes an obligation of the resulting,
surviving or transferee Person as a result of such transaction as having been issued by such
Person at the time of such transaction), no Default shall have occurred and be continuing;
and




     (iii) the Borrower delivers to the Administrative Agent an Officers’ Certificate and
an Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplement to the Guarantee, Collateral and Intercreditor Agreement or other guaranty
agreement and such supplements to the Loan Documents and other documents or instruments, if
any, comply with this Agreement and the other Loan Documents.



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     SECTION 6.09. Limitation on Sale/Leaseback Transactions. The Borrower will not, and will not
permit any Restricted Subsidiary to, enter into any Sale/Leaseback Transaction with respect to any
property unless:



     (a) the Borrower or such Restricted Subsidiary would be entitled to (i) Incur Indebtedness in
an amount equal to the Attributable Debt with respect to such Sale/Leaseback Transaction pursuant
to Section 6.01 and (ii) create a Lien on such property securing such Attributable Debt pursuant to
Section 6.02;



     (b) the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary in connection
with such Sale/Leaseback Transaction are at least equal to the fair market value (as determined by
the Board of Directors) of such property; and



     (c) the Borrower applies the proceeds of such transaction in compliance with Section 6.05.



     SECTION 6.10. Impairment of Security Interest. Subject to the rights of the holders of
Permitted Liens and except as permitted by this Agreement or the other Loan Documents, the Borrower
shall not, and shall not permit any of its Restricted Subsidiaries to, take or knowingly or
negligently omit to take, any action which action or omission would reasonably be expected to have
the result of materially impairing the security interest with respect to the Collateral for the
benefit of the Secured Parties.



ARTICLE VII




Events of Default




     In case of the happening of any of the following events (“Events of Default”):



     (a) any representation or warranty made or deemed made in or in connection with any Loan
Document or the borrowings hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been false or misleading in
any material respect when so made, deemed made or furnished;



     (b) default shall be made in the payment of any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise;



     (c) default shall be made in the payment of any interest on any Loan or any fee or any other
amount (other than an amount referred to in (b) above) due under any Loan Document, when and as the
same shall become due and payable, and such default shall continue unremedied for a period of 30
days;



     (d) failure by Holdings or the Borrower for 45 days after receipt of written notice given by
the Administrative Agent or the Required Lenders to comply with Section 2.23 (other than a failure
to prepay Loans when required under such Section) or Section 6.08;



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     (e) failure (other than as set forth in clauses (a), (b), (c) and (d) above) by Holdings, the
Borrower or any Subsidiary Guarantor for 60 days after receipt of written notice given by the
Administrative Agent or the Required Lenders to comply with any of its other agreements in this
Agreement or any other Loan Document;



     (f) (i) Holdings, the Borrower, any Subsidiary Guarantor or any Significant Subsidiary shall
fail to pay any principal or interest, regardless of amount, due in respect of any Material
Indebtedness (other than in respect of Earn-Out Consideration as to which the validity or amount
thereof is being contested in good faith by appropriate actions or proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP),
when and as the same shall become due and payable, or (ii) any other event or condition occurs that
results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or both) the holder or holders
of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that (A) this clause (ii) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness, and (B) an event or condition that has given rise to a
default in respect of a Financial Performance Covenant shall not constitute an Event of Default
hereunder pursuant to this clause (ii) unless and until the earlier to occur of (A) a period of
45 days has elapsed following notice of such Financial Performance Covenant default from the
administrative agent or any lender under the Revolving Loan Credit Agreement to the Borrower, or
from the Borrower to such administrative agent or any such lender, and (B) the acceleration of the
maturity of any of the loans or the termination of any of the commitments under the Revolving Loan
Credit Agreement as a result of such Financial Performance Covenant default;



     (g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in
a court of competent jurisdiction seeking (i) relief in respect of Holdings, the Borrower or any
Significant Subsidiary (or any group of Subsidiaries that together would constitute a Significant
Subsidiary), or of a substantial part of the property or assets of Holdings, the Borrower or any
Significant Subsidiary (or any group of Subsidiaries that together would constitute a Significant
Subsidiary), under Title 11 of the United States Code, as now constituted or hereafter amended, or
any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
Holdings, the Borrower or any Significant Subsidiary (or any group of Subsidiaries that together
would constitute a Significant Subsidiary) or for a substantial part of the property or assets of
Holdings, the Borrower or any Significant Subsidiary (or any group of Subsidiaries that together
would constitute a Significant Subsidiary) or (iii) the winding-up or liquidation of Holdings, the
Borrower or any Significant Subsidiary (or any group of Subsidiaries that together would constitute
a Significant Subsidiary); and such proceeding or petition shall continue undismissed for 60 days
or an order or decree approving or ordering any of the foregoing shall be entered;



     (h) Holdings, the Borrower or any Significant Subsidiary (or any group of Subsidiaries that
together would constitute a Significant Subsidiary) shall (i) voluntarily commence any proceeding
or file any petition seeking relief under Title 11 of the United States Code, as now



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constituted or hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in
a timely and appropriate manner, any proceeding or the filing of any petition described in (f)
above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the Borrower or any Significant
Subsidiary (or any group of Subsidiaries that together would constitute a Significant Subsidiary)
or for a substantial part of the property or assets of Holdings, the Borrower or any Significant
Subsidiary (or any group of Subsidiaries that together would constitute a Significant Subsidiary),
(iv) file an answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit
in writing its inability or fail generally to pay its debts as they become due or (vii) take any
action for the purpose of effecting any of the foregoing;



     (i) any judgment or decree for the payment of money in excess of $7,500,000 over amounts
covered by insurance policies (as to which the insurer has been notified and has not disclaimed
liability) is entered against Holdings, the Borrower, a Subsidiary Guarantor or any Significant
Subsidiary (or any group of Subsidiaries that together would constitute a Significant Subsidiary),
remains outstanding for a period of 60 days following the entry of such judgment or decree and is
not discharged, waived or the execution thereof stayed;



     (j) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other such ERISA Events, could reasonably be expected to result in
liability of the Borrower and its ERISA Affiliates in an aggregate amount exceeding $7,500,000;



     (k) any Guarantee under the Guarantee, Collateral and Intercreditor Agreement for any reason
shall cease to be in full force and effect (other than in accordance with its terms), or any
Guarantor shall deny in writing that it has any further liability under the Guarantee, Collateral
and Intercreditor Agreement (other than as a result of the discharge of such Guarantor in
accordance with the terms of the Loan Documents);



     (l) any security interest purported to be created by any Security Document shall cease to be,
or shall be asserted by the Borrower or any other Loan Party not to be, a valid, perfected,
first-priority (except as otherwise expressly provided in this Agreement or such Security Document)
security interest in the securities, assets or properties covered thereby, except to the extent
that any such loss of perfection or priority results from the failure of the Collateral Agent to
maintain possession of certificates representing securities pledged under the Guarantee, Collateral
and Intercreditor Agreement and except to the extent that such loss is covered by a lender’s title
insurance policy and the related insurer promptly after such loss shall have acknowledged in
writing that such loss is covered by such title insurance policy; or



     (m) the Indebtedness under any subordinated Indebtedness of Holdings and its Subsidiaries
constituting Material Indebtedness (or any Guarantee thereof) shall cease (or any Loan Party or an
Affiliate of any Loan Party shall so assert), for any reason, to be validly subordinated to the
Obligations as provided in the agreements evidencing such subordinated Indebtedness;



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then, and in every such event (other than an event with respect to any Person or group of Persons
described in paragraph (g) or (h) above), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to
the Borrower, take either or both of the following actions, at the same or different
times: (i) terminate forthwith the Commitments and (ii) declare the Loans then outstanding to be
forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid accrued fees and all
other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding; and in any event with respect to any Person or group
of Persons described in paragraph (g) or (h) above, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest thereon and any
unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other
Loan Document, shall automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding.




     In the event of any Event of Default specified in paragraph (f) of the preceding paragraph of
this Article, such Event of Default and all consequences thereof (excluding any resulting payment
default) shall be annulled, waived and rescinded automatically and without any action by the
Administrative Agent or the Lenders if, within 20 days after such Event of Default arose, (i) the
Indebtedness or Guarantee that is the basis for such Event of Default has been discharged, (ii) the
holders thereof have rescinded or waived the acceleration, notice or action (as the case may be)
giving rise to such Event of Default or (iii) the default that is the basis for such Event of
Default has been cured.



ARTICLE VIII




The Administrative Agent




     Each of the Lenders hereby irrevocably appoints the Administrative Agent its agent and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto. Each of the Lenders acknowledges and
agrees that the bank serving as the Administrative Agent shall also act, subject and in accordance
with the terms of the Guarantee, Collateral and Intercreditor Agreement, as the Collateral Agent
for the Secured Parties and as the administrative agent for the lenders under the Revolving Loan
Credit Agreement.



     The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.



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     The Administrative Agent shall have no duties or obligations except those expressly set forth
in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative
Agent shall be subject to no fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall have no duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that it is instructed in writing to exercise by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.08), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall have no duty to disclose, nor shall it be liable for the failure to
disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in Section 9.08) or in the
absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be
deemed to have knowledge of any Default unless and until written notice thereof is given to it by
Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or
have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or
in connection with any Loan Document, (ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv)
the validity, enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV
or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to it.



     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent may also rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for
the Borrower), independent accountants and other experts selected by it, and shall not be liable
for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.



     The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by it. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent,
and shall apply to their respective activities in connection with the syndication of the Credit
Facilities as well as activities as Administrative Agent.



     Subject to the appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank
and the Borrower. Upon any such resignation, the Required Lenders shall have the



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right, in consultation with the Borrower, to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to
a successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while acting as
Administrative Agent.



     Each Lender acknowledges 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 credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges 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 from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.



     None of the Lenders or other Persons identified on the facing page of this Agreement as a
“syndication agent” or “documentation agent” shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all Lenders. Without
limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed
to have any fiduciary relationship with any Lender.



ARTICLE IX




Miscellaneous




     SECTION 9.01. Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by fax, as follows:



     (a) if to the Borrower or Holdings, to it at 2305 Newpoint Parkway, Lawrenceville, Georgia
30043, Attention of Dan McCarthy (Fax No. (770) 822-4326), with a copy to (i) Court Square Capital
Partners at 399 Park Avenue, New York, New York 10022, Attention of Ian Highet (Fax No. (212)
888-2940), and (ii) Kirkland & Ellis LLP, Citigroup Center, 153 East 53rd Street, New
York, New York 10022, Attention of Armand Della Monica, Esq. (Fax No. (212) 446-6460);



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     (b) if to the Administrative Agent, to Toronto Dominion (Texas) LLC, as Administrative Agent,
77 King Street West, 18th Floor, Toronto, Ontario, Canada M5K 1A2, Attention of Alice
Mare and Elhamy Khalil (Fax No. (416) 307-3826); and



     (c) if to a Lender, to it at its address (or fax number) set forth on Schedule 2.01 or in the
Assignment and Acceptance pursuant to which such Lender shall have become a party hereto.



     All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered
by hand or overnight courier service or sent by fax or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 9.01 or in accordance with the
latest unrevoked direction from such party given in accordance with this Section 9.01. As agreed
to among Holdings, the Borrower, the Administrative Agent and the applicable Lenders from time to
time, notices and other communications may also be delivered by e-mail to the e-mail address of a
representative of the applicable Person provided from time to time by such Person.



     SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrower or Holdings herein and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the Lenders and shall survive the making by the
Lenders of the Loans, regardless of any investigation made by the Lenders or on their behalf, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement or any other Loan Document is
outstanding and so long as the Commitments have not been terminated. The provisions of Sections
2.14, 2.16, 2.20 and 9.05 shall remain operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of the transactions contemplated hereby,
the repayment of any of the Loans, the expiration of the Commitments, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral Agent or any Lender.



     SECTION 9.03. Binding Effect. This Agreement shall become effective when it shall have been
executed by the Borrower, Holdings and the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto.



     SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and
assigns of such party; and all covenants, promises and agreements by or on behalf of the Borrower,
Holdings, the Administrative Agent, the Collateral Agent or the Lenders that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and assigns.



     (b) Each Lender may assign to one or more assignees all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it), with the prior written consent of each of the Administrative



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Agent and the Borrower (which consent in each case shall not be unreasonably withheld or
delayed) (provided that the consent of the Borrower shall not be required for any assignment made
to another Lender or an Affiliate or Related Fund of a Lender, during the primary syndication of
the Loans to Persons identified by the Administrative Agent to the Borrower on or prior to the
Closing Date or after the occurrence and during the continuance of any Default or Event of
Default); provided, however, that (i) the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not be less than
$1,000,000 (or, if less, the entire remaining amount of such Lender’s Commitment or Loans) unless
the Borrower and the Administrative Agent otherwise consent (provided that such amounts shall be
aggregated in respect of each Lender and its Affiliates or Related Funds, and no such consent of
the Borrower shall be required after the occurrence and during the continuance of any Event of
Default), (ii) the parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance via an electronic settlement system acceptable to the
Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall
pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived
or reduced in the sole discretion of the Administrative Agent and provided that only one such fee
shall be payable in the case of concurrent assignments by or to Persons that, after giving effect
to such assignments, will be Related Funds), and (iii) the assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire and all applicable tax
forms. Upon acceptance and recording pursuant to paragraph (e) of this Section 9.04, from and
after the effective date specified in each Assignment and Acceptance, (A) the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement and (B) the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.14, 2.16, 2.20 and 9.05).



     (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balances of its Loans, in each case without giving effect to
assignments thereof which have not become effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any
other instrument or document furnished pursuant hereto, or the financial condition of the Borrower
or any Subsidiary or the performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most



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recent financial statements referred to in Section 3.05(a) or delivered pursuant to
Section 5.04 and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Administrative Agent, the Collateral Agent, such
assigning Lender 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 decisions in taking or not taking action
under this Agreement; (vi) such assignee appoints and authorizes the Administrative Agent and the
Collateral Agent to take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent and the Collateral Agent, respectively, by
the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.



     (d) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at its office in Toronto, Canada a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time
to time (the “Register”). The entries in the Register shall be conclusive and the Borrower, the
Administrative Agent, the Collateral Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Collateral Agent and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.



     (e) Upon its receipt of, and consent to, a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above, if applicable, and the written consent of the
Administrative Agent and the Borrower (if required) to such assignment and any applicable tax
forms, the Administrative Agent shall (i) accept such Assignment and Acceptance and (ii) record the
information contained therein in the Register. No assignment shall be effective unless it has been
recorded in the Register as provided in this paragraph (e).



     (f) Each Lender may without the consent of the Borrower or the Administrative Agent sell
participations to one or more banks or other Persons in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided, however, that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other Persons shall be entitled
to the benefit of the cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to the
same extent as if they were Lenders (but, with respect to any particular participant, to no greater
extent than the Lender that sold the participation to such participant) and (iv) the Borrower, the
Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to the Loans and to
approve any amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable to



94









 







such participating bank or Person hereunder or the amount of principal of or the rate at which
interest is payable on the Loans in which such participating bank or Person has an interest,
extending any scheduled principal payment date or date fixed for the payment of interest on the
Loans in which such participating bank or Person has an interest, increasing or extending the
Commitments in which such participating bank or Person has an interest or releasing any Guarantor
(other than in connection with the sale of such Guarantor in a transaction permitted by
Section 6.05) or all or substantially all of the Collateral).



     (g) Any Lender or participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or
participant or proposed assignee or participant any information relating to the Borrower furnished
to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or participant or
proposed assignee or participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential
information on terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.



     (h) Any Lender may at any time pledge or assign all or any portion of its rights under this
Agreement to secure extensions of credit to such Lender or in support of obligations owed by such
Lender; provided that no such assignment shall release a Lender from any of its obligations
hereunder or substitute any such assignee for such Lender as a party hereto.



     (i) 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 and (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. The making of a Loan by an SPC
hereunder shall utilize the 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 senior 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 contained in this Section 9.04, any SPC may (i) 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 to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC
to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency,



95









 







commercial paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC.



     (j) Neither Holdings nor the Borrower shall assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent and each Lender, and any
attempted assignment without such consent shall be null and void.



     SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Holdings agree, jointly and
severally, to pay all out-of-pocket expenses incurred by the Administrative Agent and the
Collateral Agent in connection with the syndication of the Credit Facilities and the preparation
and administration of this Agreement and the other Loan Documents or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions hereby or thereby contemplated shall be consummated) or incurred by the Administrative
Agent, the Collateral Agent or any Lender in connection with the enforcement or protection of its
rights in connection with this Agreement and the other Loan Documents or in connection with the
Loans made hereunder, including the fees, charges and disbursements of Kilpatrick Stockton LLP,
counsel for the Administrative Agent and the Collateral Agent, and, in connection with any such
enforcement or protection, the fees, charges and disbursements of any other counsel for the
Administrative Agent, the Collateral Agent or any Lender.



     (b) The Borrower and Holdings agree, jointly and severally, to indemnify the Administrative
Agent, the Collateral Agent, each Lender and each Related Party of any of the foregoing Persons
(each such Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel
fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this Agreement or any
other Loan Document or any agreement or instrument contemplated thereby, the performance by the
parties thereto of their respective obligations thereunder or the consummation of the Transactions
and the other transactions contemplated thereby (including the syndication of the Credit
Facilities), (ii) the use of the proceeds of the Loans, (iii) any claim, litigation, investigation
or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto
(and regardless of whether such matter is initiated by a third party or by the Borrower, any other
Loan Party or any of their respective Affiliates), or (iv) any actual or alleged presence or
Release of Hazardous Materials on any property currently or formerly owned or operated by the
Borrower or any of the Subsidiaries, or any Environmental Liability related in any way to the
Borrower or the Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted primarily from the gross negligence or willful misconduct of such Indemnitee.



     (c) To the extent that Holdings and the Borrower fail to pay any amount required to be paid
by them to the Administrative Agent or the Collateral Agent under paragraph (a) or (b) of this
Section 9.05, each Lender severally agrees to pay to the Administrative Agent or the Collateral
Agent, as the case may be, such Lender’s pro rata share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related



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expense, as the case may be, was incurred by or asserted against the Administrative Agent or
the Collateral Agent in its capacity as such. For purposes hereof, a Lender’s “pro rata share”
shall be determined in accordance with Section 2.17.



     (d) To the extent permitted by applicable law, neither Holdings nor the Borrower shall
assert, and each hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions or any Loan or the use of the proceeds thereof.



     (e) The provisions of this Section 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the
invalidity or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral
Agent or any Lender. All amounts due under this Section 9.05 shall be payable on written demand
therefor.



     SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender is hereby authorized at any time and from time to time, except to the extent prohibited
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower or Holdings against any of and all the obligations of the
Borrower or Holdings now or hereafter existing under this Agreement and other Loan Documents held
by such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement or such other Loan Document and although such obligations may be unmatured. The rights
of each Lender under this Section 9.06 are in addition to other rights and remedies (including
other rights of setoff) which such Lender may have.



     SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.



     SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the
Collateral Agent or any Lender in exercising any power or right hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Collateral Agent and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document
or consent to any departure by the Borrower or any other Loan Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given. No
notice or demand on the Borrower or Holdings



97









 





in any case shall entitle the Borrower or Holdings to any other or further notice or demand in
similar or other circumstances.



     (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower, Holdings and the
Required Lenders; provided, however, that no such agreement shall (i) decrease the principal amount
of, or extend the maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part thereof, or decrease the
rate of interest on any Loan, without the prior written consent of each Lender, (ii) increase or
extend the Commitment of any Lender without the prior written consent of such Lender, (iii) amend
or modify the pro rata requirements of Section 2.17, the provisions of Section 9.04(j) or the
provisions of this Section 9.08 or release any Guarantor (other than in connection with the sale of
such Guarantor in a transaction permitted by Section 6.05) or all or substantially all of the
Collateral, without the prior written consent of each Lender, (iv) modify the protections afforded
to an SPC pursuant to the provisions of Section 9.04(i) without the written consent of such SPC or
(v) reduce the percentage contained in the definition of the term “Required Lenders” without the
prior written consent of each Lender (it being understood that with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the Commitments and
outstanding Loans on the date hereof); provided further that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent or the Collateral Agent
hereunder or under any other Loan Document without the prior written consent of the Administrative
Agent or the Collateral Agent.



     SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if
at any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable
law, the rate of interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section 9.09 shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal
Funds Effective Rate to the date of repayment, shall have been received by such Lender.



     SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the other Loan Documents
constitute the entire contract between the parties relative to the subject matter hereof. Any
other previous agreement among the parties with respect to the subject matter hereof is superseded
by this Agreement and the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any Person (other than the parties
hereto and thereto, their respective successors and assigns permitted hereunder and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
Collateral Agent and the Lenders) any rights, remedies, obligations or liabilities under or by
reason of this Agreement or the other Loan Documents.



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     SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.



     SECTION 9.12. Severability. In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.



     SECTION 9.13. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become effective as
provided in Section 9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.



     SECTION 9.14. Headings. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.



     SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of Holdings and the
Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of any New York State court or Federal court of the United States of America
sitting in New York City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
such New York State court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Agreement shall affect any right that the Administrative Agent, the
Collateral Agent or any Lender may otherwise have to



99









 







bring any action or proceeding relating to this Agreement or the other Loan Documents against
the Borrower, Holdings or their respective properties in the courts of any jurisdiction.



     (b) Each of Holdings and the Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or the other Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.



     (c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.



     SECTION 9.16. Confidentiality. Each of the Administrative Agent, the Collateral Agent and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates’ officers, directors, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority or quasi-regulatory authority (such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) in connection with the exercise of any remedies hereunder or
under the other Loan Documents or any suit, action or proceeding relating to the enforcement of its
rights hereunder or thereunder, (e) subject to an agreement containing provisions substantially the
same as those of this Section 9.16, to (i) any actual or prospective assignee of or participant in
any of its rights or obligations under this Agreement and the other Loan Documents, (ii) any
pledgee referred to in Section 9.04(h) or (iii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower or any Subsidiary or any
of their respective obligations, (f) with the consent of the Borrower or (g) to the extent such
Information becomes publicly available other than as a result of a breach of this Section 9.16.
For the purposes of this Section 9.16, “Information” shall mean all information received from the
Borrower or Holdings and related to the Borrower or Holdings or their business, other than any such
information that was available to the Administrative Agent, the Collateral Agent or any Lender on a
nonconfidential basis prior to its disclosure by the Borrower or Holdings; provided that, in the
case of Information received from the Borrower or Holdings after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section 9.16 shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord its own confidential
information.



     SECTION 9.17. USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies Holdings and the Borrower that pursuant to the
requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that
identifies Holdings and the Borrower, which information includes the name and address of Holdings
and the Borrower and other information that will allow such



100









 







Lender or the Administrative Agent, as applicable, to identify Holdings and the Borrower in
accordance with the USA PATRIOT Act.



[Remainder of page intentionally left blank]




101









 





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



	 	 	 	 	 
	 	NETWORK COMMUNICATIONS, INC.,

 	 
	 	  by    	
/s/ Gerard Parker
 	 
	 	 	Name:  	Gerard Parker 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	GALLARUS MEDIA HOLDINGS, INC.,

 	 
	 	  by      	
/s/ Gerard Parker
 	 
	 	 	Name:  	Gerard Parker 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



TERM LOAN CREDIT AGREEMENT

NETWORK COMMUNICATIONS, INC.

Signature Page





 









 








	 	 	 	 	 
	 	TORONTO DOMINION (TEXAS) LLC, as Administrative

Agent, Collateral Agent and Lender

 	 
	 	By:      	
/s/ Ian Murray
 	 
	 	 	Name:  	Ian Murray 	 
	 	 	Title:  	Its Duly Authorized Signatory 	 
	 



TERM LOAN CREDIT AGREEMENT

NETWORK COMMUNICATIONS, INC.

Signature Page






 









 








	 	 	 	 	 
	 	NATIONAL CITY BANK, as a Lender

 	 
	 	By:  	/s/ Michael Grimes
 	 
	 	 	Name:  	Michael Grimes 	 
	 	 	Title:  	Senior Vice President 	 
	 



TERM LOAN CREDIT AGREEMENT

NETWORK COMMUNICATIONS, INC.

Signature Page






 









 








	 	 	 	 	 
	 	NATIXIS, as a Lender

 	 
	 	By:  	/s/ Frank H. Madden, Jr.
 	 
	 	 	Name:  	Frank H. Madden, Jr. 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	             /s/ Elizabeth A. Harker
 	 
	 	 	Name:  	Elizabeth A. Harker 	 
	 	 	Title:  	Director 	 
	 



TERM LOAN CREDIT AGREEMENT

NETWORK COMMUNICATIONS, INC.

Signature Page






 









 








	 	 	 	 	 
	 	WELLS FARGO FOOTHILL, INC., as a Lender

 	 
	 	By:  	/s/
Amelie Yehros
 	 
	 	 	Name:  	Amelie Yehros 	 
	 	 	Title:  	Senior Vice President 	 
	 



TERM LOAN CREDIT AGREEMENT

NETWORK COMMUNICATIONS, INC.

Signature Page