Second Amendment

Exhibit 10.16

SECOND AMENDMENT

This SECOND AMENDMENT (this “Amendment”),is entered into as of June 28, 2006 (the “SecondAmendment Effective Date”), by and among DYNCORP INTERNATIONAL LLC(successor by merger to DI FINANCE SUB LLC), a Delaware limited liabilitycompany (“Company”), DYNCORP INTERNATIONAL INC. (formerly knownas DI ACQUISITION CORP.), aDelaware corporation (“Holdings”), and CERTAIN SUBSIDIARIES OF COMPANY (togetherwith Holdings, the “Guarantors”),as guarantors, the lenders partyhereto, GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”), asadministrative agent (together with its permitted successors in such capacity, “AdministrativeAgent”), and BANK OF AMERICA, N.A., as issuing bank (togetherwith its permitted successors in such capacity, “Issuing Bank”).

RECITALS

WHEREAS, Company, the Guarantors, the lenders from time to time party thereto(the “Lenders”), GSCP, as AdministrativeAgent, Collateral Agent, joint lead arranger and joint book runner, BearStearns Corporate Lending Inc., as Syndication Agent, Bear, Stearns &Co. Inc., as joint lead arranger and joint book runner, and Bank of America,N.A., as Issuing Bank and Documentation Agent, are parties to that certain$420,000,000 Credit and Guaranty Agreement dated as of February 11, 2005(as amended pursuant to that certain First Amendment and Waiver dated as of January 9,2006, and as further amended, restated supplemented or otherwise modified fromtime to time, the “Existing Credit Agreement”).

WHEREAS, Company has requested that the ExistingCredit Agreement be amended to, among other things, provide for new term loans(the “New Term Loans”). The cash proceeds ofany such New Term Loans will be used solely (a) to repay in full theoutstanding principal amount of, and accrued interest on, all Existing TermLoans of Existing Term Loan Lenders as of the Second Amendment Effective Dateand (b) for other general corporate purposes. Company has appointed GSCPto act as sole lead arranger, sole bookrunner and syndication agent for thisAmendment.

WHEREAS, certain existing Lenders with outstandingTerm Loans (each, an “Existing Term Loan Lender”)that execute and deliver a signature page to this Amendment specificallyin the capacity of a “Continuing Lender” (a “ContinuingLender”) are willing to make New Term Loans in an aggregateprincipal amount up to, but not in excess of, the aggregate principal amount ofsuch Existing Term Loan Lender’s outstanding Term Loans immediately prior tothe Second Amendment Effective Date (“Existing Term Loans”)subject to the terms and conditions of the Amended Credit Agreement (as definedbelow).

WHEREAS, the Requisite Lenders are willing to effectsuch amendment (and the other amendments set forth herein), and the ContinuingLenders are willing to make New Term Loans as contemplated hereby, in each caseon the terms and subject to the conditions as more particularly set forth inthe Amended Credit Agreement.

WHEREAS,Company has requestedthat the Administrative Agent be given the authority by the Lenders holding RevolvingCommitments to make such modifications to the Amended Credit Agreement at anytime prior to the Revolving Commitment Termination Date, so as to increase theRevolving Commitments by up to $30,000,000.

 



WHEREAS, attached hereto as Exhibit A is a conformed copy of the ExistingCredit Agreement which contains all of the specific modifications, amendmentsand supplements necessary or desirable in connection with the New Term Loansand certain other amendments requested by Company (including the schedules andexhibits thereto, the “Amended Credit Agreement”).

NOW, THEREFORE, in consideration of the premises made hereunder, and for good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties hereto, intending to be legally bound, hereby agreeas follows:

Section 1.               Definitions. Unlessotherwise expressly defined herein, all capitalized terms used herein anddefined in the Amended Credit Agreement shall be used herein as so defined.

Section 2.               Amendments to the ExistingCredit Agreement. The Existing Credit Agreement is hereby amended andmodified in its entirety from and after the Second Amendment Effective Date asreflected in the Amended Credit Agreement. Any provision of the Existing CreditAgreement which is different from that set forth in the Amended CreditAgreement shall be superseded in all respects by the provisions of the AmendedCredit Agreement.

Section 3.               Waiver of Obligation to ObtainCertain Landlord Personal Property Collateral Access Agreements and ForeignPledges. Subject to the satisfaction of the conditions set forth in Section 4,Administrative Agent and the Requisite Lenders hereby permanently waive theobligation of the Credit Parties to (a) use their best efforts to obtainLandlord Personal Property Collateral Access Agreements with respect to theLeasehold Properties located at 8445Freeport Parkway, Irving, Texas 75063 and 6500 West Freeway Fort Worth,Texas 76116 and (b) (i) deliver all documentation necessary toperfect the Collateral Agent’s security interest in 65% of the voting stock ofDynCorp (Australia) Pty Ltd. and DynCorp International FZ-LLC (collectively,the “Excluded Subsidiaries”) and (ii) completeall actions necessary to perfect such security interest in the Excluded Subsidiariesin Australia and the United Arab Emirates.

Section 4.               Conditions Precedent. ThisAmendment shall become effective on the Second Amendment Effective Date uponsatisfaction of each of the conditions precedent set forth in Sections 3.2 and3.3 of the Amended Credit Agreement.

Section 5.               Designated Senior Debt. Eachof the Company and the Guarantors party hereto that are “Guarantors” as suchterm is defined in the Senior Subordinated Note Agreement hereby specificallydesignate the “Senior Debt” (as defined in the Senior Subordinated NoteAgreement) incurred under the Existing Credit Agreement, this Amendment and theAmended Credit Agreement as “Designated Senior Debt” for purposes of the SeniorSubordinated Note Agreement.

Section 6.               Representations and Warranties;Lenders’ Acknowledgment.

(a)           Each Credit Party hereby representsand warrants to the Agents and the Lenders that, as of the date hereof andafter giving effect to this Amendment, (i) all representations andwarranties set forth in the Amended Credit Agreement and in any other CreditDocument are true and correct in all material respects as if made again on andas of such date (except those, if any, which by their terms specifically relateonly to an earlier date, in which case such representations and warrantiesshall have been true and correct in all material respects as of such earlierdate), (ii) no event shall have occurred and be continuing or would resultfrom the making of the New Term Loans that would constitute a Default or Eventof Default, and (iii) the Amended Credit Agreement and all other CreditDocuments are and remain legal, valid, binding and enforceable obligations ofthe Credit Parties in accordance with the terms thereof

 

2



exceptas may be limited by bankruptcy, insolvency, reorganization, moratorium orsimilar laws relating to or limiting creditors’ rights generally or byequitable principles (regardless of whether enforcement is sought in equity orat law).

(b)           Each Lender, by delivering itssignature page to this Amendment and, if applicable, funding its New TermLoan on the Second Amendment Effective Date, shall be deemed to haveacknowledged receipt of, and consented to and approved, each Credit Documentand each other document required to be approved by any Agent, Requisite Lendersor Lenders, as applicable, on the Second Amendment Effective Date.

(c)           Each Continuing Lender hereby commitsto make New Term Loans on the Second Amendment Effective Date in the mannercontemplated by Section 2.1(a) of the Amended Credit Agreement.

(d)           Each Existing Term Loan Lenderexecuting this Amendment that is not a Continuing Lender hereby agrees to themaking of the New Term Loans but does not hereby undertake any commitment tomake New Term Loans.

Section 7.               Survival of Representationsand Warranties. All representations and warranties made in this Amendment,the Amended Credit Agreement or any other Credit Document shall survive theexecution and delivery of this Amendment, and no investigation by Agents orLenders shall affect the representations and warranties or the right of Agentsand Lenders to rely upon them. If any representation or warranty made in thisAmendment or the Amended Credit Agreement is false in any material respect asof the date made or deemed made, then such shall constitute an Event of Defaultunder the Amended Credit Agreement. The agreements of the Lenders set forth inSections 2.17, 9.3(b) and 9.6 of the Amended Credit Agreement shallsurvive the payment of the Loans, the cancellation or expiration of the Lettersof Credit and the reimbursement of any amounts drawn thereunder, and thetermination thereof.

Section 8.               Reference to Agreement. Eachof the Credit Documents and any and all other agreements, documents orinstruments previously executed and/or delivered pursuant to the terms of theExisting Credit Agreement are hereby amended so that any reference in suchCredit Documents to the Credit Agreement, whether direct or indirect, shallmean a reference to the Amended Credit Agreement. This Amendment shallconstitute a Credit Document under the Amended Credit Agreement.

Section 9.               Governing Law. THISAMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BEGOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWSOF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.

Section 10.             Execution. This Amendmentmay be executed in any number of counterparts and by different parties heretoin separate counterparts, each of which when so executed shall be deemed to bean original and all of which taken together shall constitute one and the sameagreement. Delivery of an executed counterpart of a signature page to thisAmendment by telecopier  or electronicmail shall be effective as delivery of a manually executed counterpart of thisAmendment. This Amendment shall be binding upon each signatory hereto, itssuccessors and assigns.

Section 11.             Limited Effect. ThisAmendment relates only to the specific matters expressly covered herein, shallnot be considered to be a waiver of any rights or remedies any Lender may haveunder the Amended Credit Agreement or under any other Credit Document, exceptas expressly

 

3



providedherein, and shall not be considered to create a course of dealing or tootherwise obligate in any respect any Lender to execute similar or otheramendments or grant any waivers under the same or similar or othercircumstances in the future.

Section 12.             Headings. Sections headingsin the Amendment are included for convenience of reference only and shall notconstitute a part of this Amendment for any other purposes.

[signature pages follow]

 

4



INWITNESS WHEREOF, the parties hereto have caused this Amendment to be executedby their respective officers thereunto duly authorized, as of the date firstabove written.

 

 

DYNCORP INTERNATIONAL LLC

 

 

 

 

 

 

 

 

By:

/s/ H. Montgomery Hougen

 

 

 

Name:

H. Montgomery Hougen

 

 

 

Title:

Vice President, Secretary

 

 

 

 

and Deputy General Counsel

 

 

 

 

 

 

 

 

 

DYNCORP INTERNATIONAL INC.

 

 

 

 

 

 

 

 

By:

/s/ H. Montgomery Hougen

 

 

 

Name:

H. Montgomery Hougen

 

 

 

Title:

Secretary

 

 

 

 

 

 

 

 

 

DIV CAPITAL CORPORATION

 

 

 

 

 

 

 

 

By:

/s/ H. Montgomery Hougen

 

 

 

Name:

H. Montgomery Hougen

 

 

 

Title:

Vice President, Secretary

 

 

 

 

and Deputy General Counsel

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DTS AVIATION SERVICES LLC

 

 

DYNCORP AEROSPACE OPERATIONS LLC

 

 

DYNCORP INTERNATIONAL SERVICES LLC

 

 

DYN MARINE SERVICES LLC

 

 

DYN MARINE SERVICES OF VIRGINIA LLC

 

 

SERVICES INTERNATIONAL LLC

 

 

WORLDWIDE HUMANITARIAN SERVICES LLC

 

 

WORLDWIDE RECRUITING AND STAFFING SERVICES LLC

 

 

 

 

 

 

 

 

By:

DYNCORP INTERNATIONAL LLC

 

 

 

its sole Member and Manager

 

 

 

 

 

 

By:

/s/ H. Montgomery Hougen

 

 

 

 

 

Name:

H. Montgomery Hougen

 

 

 

 

 

Title:

Vice President, Secretary and Deputy General Counsel

 

 

 

5



 

 

 

ADMINISTRATIVE AGENT:

 

 

 

 

 

 

 

 

GOLDMAN SACHS CREDIT PARTNERS L.P.,

 

 

as Administrative Agent and a Lender

 

 

 

 

 

 

 

 

By:

/s/ Robert Schatzman

 

 

 

 

Authorized Signatory

 

 

 

6



 

 

 

BANK OF AMERICA, N.A.,

 

 

as Issuing Bank

 

 

 

 

 

 

 

 

By:

/s/ Michael J. Landini

 

 

 

Name:

Michael J. Landini

 

 

Title:

Senior Vice President

 

 

7















 

EXHIBITA TO SECOND AMENDMENT
TO CREDIT AND GUARANTY AGREEMENT

CREDITAND GUARANTY AGREEMENT

datedas of February 11, 2005

asamended as of January 9, 2006,
as further amended as of June 28, 2006

among

DYNCORPINTERNATIONAL LLC,
as Borrower

DYNCORPINTERNATIONAL INC. and THE OTHER GUARANTORS PARTY HERETO,
as Guarantors,

VARIOUSLENDERS Party Hereto,

GOLDMANSACHS CREDIT PARTNERS L.P.,
as Administrative Agent, Collateral Agent, Syndication Agent, Lead Arranger andBook Runner,

and

BANKOF AMERICA, N.A.,
as Issuing Bank and Documentation Agent


$431,550,000Senior Secured Credit Facilities


 



 

TABLEOF CONTENTS

 

Page

SECTION 1. DEFINITIONS AND INTERPRETATION

 

2

1.1. Definitions

 

2

1.2. Accounting Terms

 

35

1.3. Interpretation, etc.

 

36

1.4. Interrelationship with the Existing Credit Agreement

 

36

SECTION 2. LOANS AND LETTERS OF CREDIT

 

37

2.1. Term Loans

 

37

2.2. Revolving Loans

 

38

2.3. Swing Line Loans

 

39

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

 

42

2.5. Pro Rata Shares; Availability of Funds

 

46

2.6. Use of Proceeds

 

47

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

 

47

2.8. Interest on Loans

 

48

2.9. Conversion/Continuation

 

51

2.10. Default Interest

 

51

2.11. Fees

 

52

2.12. Scheduled Payments

 

52

2.13. Voluntary Prepayments/Commitment Reductions/Call Protection

 

54

2.14. Mandatory Prepayments/Commitment Reductions

 

56

2.15. Application of Prepayments/Reductions

 

58

2.16. General Provisions Regarding Payments

 

60

2.17. Ratable Sharing

 

61

2.18. Making or Maintaining Eurodollar Rate Loans

 

62

2.19. Increased Costs; Capital Adequacy

 

64

2.20. Taxes; Withholding, etc.

 

65

2.21. Obligation to Mitigate

 

67

2.22. Defaulting Lenders

 

68

2.23. Removal or Replacement of a Lender

 

69

2.24. Increase in Revolving Commitments

 

70

SECTION 3. CONDITIONS PRECEDENT

 

71

3.1. Closing Date

 

71

3.2. Conditions to Each Credit Extension

 

76

3.3. Conditions to Obligation to Fund the New Term Loan Commitments on the Second Amendment Effective Date

 

77

3.4. Effect of Agreement on Other Credit Documents

 

80

SECTION 4. REPRESENTATIONS AND WARRANTIES

 

80

 

ii



 

4.1. Organization; Requisite Power and Authority; Qualification

 

80

4.2. Capital Stock and Ownership

 

81

4.3. Due Authorization

 

81

4.4. No Conflict

 

81

4.5. Governmental Consents

 

81

4.6. Binding Obligation

 

82

4.7. Historical Financial Statements

 

82

4.8. Projections

 

82

4.9. No Material Adverse Change

 

82

4.10. Intentionally Omitted

 

82

4.11. Adverse Proceedings, etc.

 

82

4.12. Payment of Taxes

 

83

4.13. Properties

 

83

4.14. Environmental Matters

 

84

4.15. No Defaults

 

84

4.16. Material Contracts

 

85

4.17. Governmental Regulation

 

85

4.18. Margin Stock

 

85

4.19. Employee Matters

 

85

4.20. Employee Benefit Plans

 

85

4.21. Certain Fees

 

86

4.22. Solvency

 

86

4.23. Related Agreements

 

86

4.24. Compliance with Statutes, etc

 

87

4.25. Disclosure

 

87

4.26. Patriot Act

 

88

SECTION 5. AFFIRMATIVE COVENANTS

 

88

5.1. Financial Statements and Other Reports

 

88

5.2. Existence

 

93

5.3. Payment of Taxes and Claims

 

93

5.4. Maintenance of Properties

 

93

5.5. Insurance

 

94

5.6. Inspections

 

94

5.7. Lenders Meetings

 

94

5.8. Compliance with Laws

 

94

5.9. Environmental

 

95

5.10. Subsidiaries

 

96

5.11. Additional Material Real Estate Assets

 

96

5.12. Interest Rate Protection

 

97

 

iii



 

5.13. Further Assurances

 

97

5.14. Non-Consolidation

 

97

SECTION 6. NEGATIVE COVENANTS

 

98

6.1. Indebtedness

 

98

6.2. Liens

 

100

6.3. Equitable Lien

 

103

6.4. No Further Negative Pledges

 

103

6.5. Restricted Junior Payments

 

103

6.6. Restrictions on Subsidiary Distributions

 

106

6.7. Investments

 

106

6.8. Financial Covenants

 

108

6.9. Fundamental Changes; Disposition of Assets; Acquisitions

 

111

6.10. Disposal of Subsidiary Interests

 

112

6.11. Sales and Lease Backs

 

113

6.12. Transactions with Shareholders and Affiliates.

 

113

6.13. Conduct of Business

 

113

6.14. Permitted Activities of Holdings

 

113

6.15. Amendments or Waivers of Purchase Agreement and Organizational Documents

 

114

6.16. Amendments or Waivers with respect to Subordinated Indebtedness

 

114

6.17. Fiscal Year

 

114

6.18. Designated Senior Debt

 

114

SECTION 7. GUARANTY

 

115

7.1. Guaranty of the Obligations

 

115

7.2. Contribution by Guarantors

 

115

7.3. Payment by Guarantors

 

116

7.4. Liability of Guarantors Absolute

 

116

7.5. Waivers by Guarantors

 

118

7.6. Guarantors’ Rights of Subrogation, Contribution, etc.

 

119

7.7. Subordination of Other Obligations

 

120

7.8. Continuing Guaranty

 

120

7.9. Authority of Guarantors or Company

 

120

7.10. Financial Condition of Company

 

120

7.11. Bankruptcy, etc.

 

121

7.12. Discharge of Guaranty Upon Sale of Guarantor

 

121

SECTION 8. EVENTS OF DEFAULT

 

122

8.1. Events of Default

 

122

SECTION 9. AGENTS

 

125

9.1. Appointment of Agents

 

125

 

iv



 

9.2. Powers and Duties

 

125

9.3. General Immunity

 

126

9.4. Agents Entitled to Act as Lender

 

127

9.5. Lenders’ Representations, Warranties and Acknowledgment

 

128

9.6. Right to Indemnity

 

128

9.7. Successor Administrative Agent and Swing Line Lender

 

129

9.8. Collateral Documents and Guaranty

 

129

SECTION 10. MISCELLANEOUS

 

131

10.1. Notices

 

131

10.2. Expenses

 

131

10.3. Indemnity

 

132

10.4. Set Off

 

133

10.5. Amendments and Waivers

 

133

10.6. Successors and Assigns; Participations

 

135

10.7. Independence of Covenants

 

140

10.8. Survival of Representations, Warranties and Agreements

 

140

10.9. No Waiver; Remedies Cumulative

 

140

10.10. Marshalling; Payments Set Aside

 

140

10.11. Severability

 

141

10.12. Obligations Several; Independent Nature of Lenders’ Rights

 

141

10.13. Headings

 

141

10.14. APPLICABLE LAW

 

141

10.15. CONSENT TO JURISDICTION

 

141

10.16. WAIVER OF JURY TRIAL

 

142

10.17. Confidentiality

 

143

10.18. Usury Savings Clause

 

143

10.19. Counterparts

 

144

10.20. Effectiveness

 

144

10.21. Patriot Act

 

144

10.22. Electronic Execution of Assignments

 

144

 

v



 

APPENDICES:

A

Revolving Commitments

 

B

Notice Addresses

 

 

 

 

 

 

SCHEDULES:

4.1

Jurisdictions of Organization and Qualification

 

4.2

Capital Stock and Ownership

 

4.13

Real Estate Assets

 

4.14

Environmental Matters

 

4.16

Material Contracts

 

4.20

ERISA Matters

 

4.23

Governmental Approvals

 

6.1

Certain Indebtedness

 

6.2

Certain Liens

 

6.6

Restrictions on Subsidiary Distributions

 

6.7

Certain Investments

 

6.12

Certain Affiliate Transactions

 

 

 

 

A-1

Funding Notice

EXHIBITS:

A-2

Conversion/Continuation Notice

 

A-3

Issuance Notice

 

B-1

New Term Loan Note

 

B-2

Revolving Loan Note

 

B-3

Swing Line Note

 

C

Compliance Certificate

 

D

Opinions of Counsel

 

E

Assignment Agreement

 

F

Certificate Re Non-bank Status

 

G-1

Second Amendment Effective Date Certificate

 

G-2

Second Amendment Effective Date Solvency Certificate

 

H

Counterpart Agreement

 

I

Pledge and Security Agreement

 

J

Mortgage

 

K

Landlord Waiver and Consent Agreement

 

L

Reaffirmation Agreement

 

M

Joinder Agreement

 

vi











 

CREDITAND GUARANTY AGREEMENT

This CREDIT AND GUARANTY AGREEMENT,dated as of February 11, 2005, as amended by the First Amendment dated asof January 9, 2006 (the Credit and Guaranty Agreement, as amended by theFirst Amendment, the “Existing Credit Agreement”)and as further amended by the Second Amendment dated as of June 28, 2006(the “Amended Credit Agreement” or this “Agreement”) is entered into by and among DYNCORP INTERNATIONAL LLC (successor by merger to DI FINANCESUB LLC), a Delaware limited liability company (“Company”), DYNCORP INTERNATIONAL INC.(formerly known as DI ACQUISITIONCORP.), a Delaware corporation (“Holdings”),and CERTAIN SUBSIDIARIES OF COMPANY,as Guarantors, the Lenders party hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”), as Lead Arranger and Book Runner,as Administrative Agent (together with its permitted successors in suchcapacity, “Administrative Agent”),as Collateral Agent (together with its permitted successor in such capacity, “Collateral Agent”), and asSyndication Agent (together with its permitted successors in such capacity, “Syndication Agent”), and BANK OF AMERICA, N.A., as Issuing Bank (together with itspermitted successors in such capacity, “Issuing Bank”)and as Documentation Agent (together with its permitted successors in suchcapacity, “Documentation Agent”).

RECITALS:

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

WHEREAS, Company isthe borrower under the Existing Credit Agreement by and among Company,Holdings, certain Subsidiaries of Company as Guarantors, GSCP and Bear, Stearns &Co. Inc., as Lead Arrangers, Bear Stearns Corporate Lending Inc., asSyndication Agent, GSCP, as Administrative Agent and Collateral Agent, Bank ofAmerica, N.A., as Issuing Bank and Documentation Agent, and the Lenders partythereto;

WHEREAS, Companyhas requested to borrow, and certain Lenders party to the Amended CreditAgreement have agreed to lend, New Term Loans in an aggregate principal amountequal to $341,550,000. The proceeds of the New Term Loans will be used solelyto repay in full the outstanding principal amount of all Existing Term Loans ofExisting Term Loan Lenders as of the Second Amendment Effective Date;

WHEREAS, Company has requested, and the Requisite Lenders have agreed,to permit Company to increase the Revolving Commitments by up to $30,000,000,which increases would be allocated to additional Lenders or to existing Lendersthat had agreed to provide such additional Revolving Commitments; and



WHEREAS, Company has requested,and Requisite Lenders have agreed, to enter into this Agreement, to amend theExisting Agreement in accordance with Section 10.5 thereof, effective asof the Second Amendment Effective Date upon satisfaction or waiver of theconditions precedent set forth in Sections 3.2 and 3.3.

NOW, THEREFORE, inconsideration of the premises and the agreements, provisions and covenantsherein contained, the parties hereto agree as follows:

SECTION 1.   DEFINITIONSAND INTERPRETATION

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

“Accounting Change”means, with respect to any Person, any change in accounting principlesapplicable to such Person and required by the promulgation of any rule,regulation, pronouncement or opinion by the Financial Accounting StandardsBoard of the American Institute of Certified Public Accountants, or, ifapplicable, the Securities and Exchange Commission (or its successor agency).

“Acquisition” means the acquisition by DIAcquisition Corp. of DynCorp International LLC pursuant to the PurchaseAgreement and the Merger.

“Act” as defined in Section 4.26.

“Adjusted Eurodollar Rate”means, for any Interest Rate Determination Date with respect to an InterestPeriod for a Eurodollar Rate Loan, the rate per annum obtained by dividing (androunding upward to the next whole multiple of 1/16 of 1%) (i) (a) therate per annum (rounded to the nearest 1/100 of 1%) equal to the ratedetermined by Administrative Agent to be the offered rate which appears on the page ofthe Telerate Screen which displays an average British Bankers AssociationInterest Settlement Rate (such page currently being page number 3740or 3750, as applicable) for deposits (for delivery on the first day of suchperiod) with a term equivalent to such period in Dollars, determined as ofapproximately 11:00 a.m. (London, England time) on such Interest RateDetermination Date, or (b) in the event the rate referenced in thepreceding clause (a) does not appear on such page or service or ifsuch page or service shall cease to be available, the rate per annum(rounded to the nearest 1/100 of 1%) equal to the rate determined byAdministrative Agent to be the offered rate on such other page or otherservice which displays an average British Bankers Association InterestSettlement Rate for deposits (for delivery on the first day of such period)with a term equivalent to such period in Dollars, determined as ofapproximately 11:00 a.m. (London, England time) on such Interest RateDetermination Date, or (c) in the event the rates referenced in thepreceding clauses (a) and

2



(b) are notavailable, the rate per annum (rounded to the nearest 1/100 of 1%) equal to theoffered quotation rate to first class banks in the London interbank market byGSCP for deposits (for delivery on the first day of the relevant period) inDollars of amounts in same day funds comparable to the principal amount of theapplicable Loan of Administrative Agent, in its capacity as a Lender, for whichthe Adjusted Eurodollar Rate is then being determined with maturitiescomparable to such period as of approximately 11:00 a.m. (London, Englandtime) on such Interest Rate Determination Date, by (ii) an amount equal to(a) one minus (b) the Applicable Reserve Requirement.

“Administrative Agent”as defined in the preamble hereto.

“Adverse Proceeding”means any action, suit, proceeding (whether administrative, judicial orotherwise), governmental investigation or arbitration (whether or notpurportedly on behalf of Holdings or any of its Subsidiaries) at law or inequity, or before or by any Governmental Authority, domestic or foreign(including any Environmental Claims), whether pending or, to the knowledge ofHoldings or any of its Subsidiaries, threatened in writing against or affectingHoldings or any of its Subsidiaries or any property of Holdings or any of itsSubsidiaries.

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

“Affected Loans” asdefined in Section 2.18(b).

“Affiliate” means,as applied to any Person, any other Person directly or indirectly controlling,controlled by, or under common control with, that Person. For the purposes ofthis definition, “control” (including, with correlative meanings, the terms “controlling”,“controlled by” and “under common control with”), as applied to any Person,means the possession, directly or indirectly, of the power (i) to vote 10%or more of the Securities having ordinary voting power for the election ofdirectors of such Person or (ii) to direct or cause the direction of themanagement and policies of that Person, whether through the ownership of votingsecurities or by contract or otherwise.

“Agent” means eachof Syndication Agent, Administrative Agent, Collateral Agent and DocumentationAgent.

“Aggregate Amounts Due”as defined in Section 2.17.

“Aggregate Payments”as defined in Section 7.2.

“Agreement” meansthis Credit and Guaranty Agreement, dated as of February 11, 2005, as itmay be amended, supplemented or otherwise modified from time to time.

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“Applicable Margin’’and “Applicable Revolving Commitment FeePercentage’’ mean (i) with respect to Revolving Loans that areEurodollar Rate Loans and the Applicable Revolving Commitment Fee Percentage, (a) fromthe Closing Date until the date of delivery of the Compliance Certificate andthe financial statements for the first full Fiscal Quarter following theClosing Date, a percentage, per annum, determined by reference to the followingtable as if the Leverage Ratio then in effect were 5.00:1.00; and (b) thereafter,a percentage, per annum, determined by reference to the Leverage Ratio ineffect from time to time as set forth below:

Leverage
Ratio

 

Applicable Margin
for Revolving Loans

 

Applicable Revolving
Commitment
Fee Percentage

 

> 5.00:1.00

 

2.50

%

0.50

%

< 5.00:1.00

 

2.25

%

0.50

%

> 4.00:1.00

 

 

 

 

 

< 4.00:1.00

 

2.00

%

0.50

%

 

and (ii) with respect to Swing Line Loans andRevolving Loans that are Base Rate Loans, an amount equal to (a) theApplicable Margin for Eurodollar Rate Loans as set forth in clause (i)(a) or(i)(b) above, as applicable, minus (b) 1.00% per annum. Each changein the Applicable Margin or the Applicable Revolving Commitment Fee Percentageshall become effective three Business Days after the date on whichAdministrative Agent shall have received the applicable financial statementsand a Compliance Certificate pursuant to Section 5.1(d) calculatingthe Leverage Ratio as at the end of the Fiscal Quarter to which such ComplianceCertificate relates. At any time Company has not submitted to AdministrativeAgent the applicable information as and when required under Section 5.1(d),the Applicable Margin and the Applicable Revolving Commitment Fee Percentageshall be determined for the period from the date such information was requiredto have been delivered under Section 5.1(d) until three Business Daysafter the actual delivery thereof as if the Leverage Ratio were in excess of5.00:1.00 for such period. Within one Business Day of receipt of the applicableinformation under Section 5.1(d), Administrative Agent shall give eachLender telefacsimile or telephonic notice (confirmed in writing) of theApplicable Margin and the Applicable Revolving Commitment Fee Percentage ineffect from such date.

“Applicable Reserve Requirement”means, at any time, for any Eurodollar Rate Loan, the maximum rate, expressedas a decimal, at which reserves (including, without limitation, any basicmarginal, special, supplemental, emergency or other reserves) are required tobe maintained with respect thereto against “Eurocurrency liabilities” (as suchterm is defined

4



in Regulation D) underregulations issued from time to time by the Board of Governors of the FederalReserve System or other applicable banking regulator. Without limiting theeffect of the foregoing, the Applicable Reserve Requirement shall reflect anyreserves required to be maintained by such member banks with respect to (i) anycategory of liabilities which includes deposits by reference to which theapplicable Adjusted Eurodollar Rate of a Loan is to be determined, or (ii) anycategory of extensions of credit or other assets which include Eurodollar RateLoans. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrencyliabilities and as such shall be deemed subject to reserve requirements withoutbenefits of credit for proration, exceptions or offsets that may be availablefrom time to time to the applicable Lender. The rate of interest on EurodollarRate Loans shall be adjusted automatically on and as of the effective date ofany change in the Applicable Reserve Requirement.

“Asset Sale” meansa sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,assignment, conveyance, transfer or other disposition to, or any exchange ofproperty with, any Person (other than Company or any Subsidiary), in onetransaction or a series of transactions, of all or any part of Holdings’ or anyof its Subsidiaries’ businesses, assets or properties of any kind, whetherreal, personal, or mixed and whether tangible or intangible, whether now ownedor hereafter acquired, including, without limitation, the Capital Stock of anyof Holdings’ Subsidiaries, other than (i) inventory (or other assets)sold, leased, subleased, licensed, sublicensed or consigned in the ordinarycourse of business (excluding any such sales by operations or divisionsdiscontinued or to be discontinued), (ii) equipment or other assets(including leases of real property) sold, replaced, abandoned, leased orotherwise disposed of that is obsolete, worn-out, condemned or no longer usedor useful in the business of Holdings, Company or any of its Subsidiaries, (iii) dispositions,by means of trade-in, of equipment used in the ordinary course of business, solong as such equipment is replaced, substantially concurrently, by like-kindequipment, (iv) the use or transfer of Cash and Cash Equivalents in amanner that is not prohibited by the terms of this Agreement or the otherCredit Documents, (v) the licensing, on a non-exclusive basis, of patents,trademarks, copyrights and other intellectual property rights in the ordinarycourse of business, (vi) the creation of a Permitted Lien under Section 6.2,(vii) the compromise or settlement of any dispute, claim or legalproceeding with respect to any receivable or other claim under a ContractualObligation for less than the total unpaid balance thereof in the ordinarycourse of business, (viii) to the extent allowable under Section 1031of the Internal Revenue Code, any exchange of like property for use in abusiness of Company or any of its Subsidiaries permitted by Section 6.13and (ix) sales of other assets for aggregate consideration of less than$500,000 with respect to any transaction or series of related transactions andless than $1,000,000 in the aggregate during any Fiscal Year.

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

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

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

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

“Base Rate” means,for any day, a rate per annum equal to the greater of (i) the Prime Ratein effect on such day and (ii) the Federal Funds Effective Rate in effecton such day plus ½ of 1%. Any change in the Base Rate due to a change in thePrime Rate or the Federal Funds Effective Rate shall be effective on theeffective day of such change in the Prime Rate or the Federal Funds EffectiveRate, respectively.

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

“Beneficiary” meanseach Agent, Issuing Bank, Lender and Lender Counterparty.

“Board of Directors” means,with respect to any Person, (i) in the case of any corporation, the boardof directors of such Person, (ii) in the case of any limited liabilitycompany, the board of managers of such Person, (iii) in the case of anylimited partnership, the Board of Directors of the general partner of suchPerson and (iv) in any other case, the functional equivalent of theforegoing.

“Business Day”means (i) any day excluding Saturday, Sunday and any day which is a legalholiday under the laws of the State of New York or is a day on which bankinginstitutions located in such state are authorized or required by law or othergovernmental action to close and (ii) with respect to all notices,determinations, fundings and payments in connection with the AdjustedEurodollar Rate or any Eurodollar Rate Loans, the term “Business Day” shall mean any day which isa Business Day described in clause (i) and which is also a day for tradingby and between banks in Dollar deposits in the London interbank market.

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

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“Capital Stock”means any and all shares, interests, participations or other equivalents(however designated) of capital stock of a corporation, any and all equivalentownership interests in a Person (other than a corporation), including, withoutlimitation, partnership interests and membership interests, and any and allwarrants, rights or options to purchase or other arrangements or rights toacquire any of the foregoing.

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

“Cash Equivalents”means, as at any date of determination, (i) marketable securities (a) issuedor directly and unconditionally guaranteed as to interest and principal by theUnited States Government or (b) issued by any agency of the United Statesthe obligations of which are backed by the full faith and credit of the UnitedStates, in each case maturing within one year after such date; (ii) marketabledirect obligations issued by any state of the United States of America or anypolitical subdivision of any such state or any public instrumentality thereof,in each case maturing within one year after such date and having, at the timeof the acquisition thereof, one of the two highest ratings obtainable fromS&P or Moody’s; (iii) commercial paper maturing no more than one yearfrom the date of creation thereof and having, at the time of the acquisitionthereof, one of the two highest ratings obtainable from S&P or Moody’s; (iv) certificatesof deposit or bankers’ acceptances maturing within one year after such date andissued or accepted by any Lender or by any commercial bank organized under thelaws of the United States of America or any state thereof or the District ofColumbia that (a) is at least “adequately capitalized” (as defined in theregulations of its primary Federal banking regulator) and (b) has Tier 1capital (as defined in such regulations) of not less than $100,000,000; (v) sharesof any money market mutual fund that (a) has substantially all of itsassets invested continuously in the types of investments referred to in clauses(i) through (iv) above, (b) has net assets of not less than$250,000,000, and (c) has one of the two highest ratings obtainable fromS&P or Moody’s when acquired; and (vi) repurchase obligations with aterm of not more than 90 days for underlying securities of the types describedin clause (i) above entered into with any bank meeting the qualificationsspecified in clause (iv) above.

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

“Change of Control”means, (i) the Permitted Holders shall fail to own, or to have the powerto vote or direct the voting of, Voting Stock of Holdings representing morethan 35% of the voting power of the total outstanding Voting Stock of Holdings;(ii) any person or “group” (within the meaning of Rules 13d-3and 13d-5 under the Exchange Act) other than the Permitted Holders (A) shallbeneficially own a percentage of the economic interests in the Voting Stock ofHoldings on a fully-diluted basis that is greater than the percentage of theeconomic interests in the Voting Stock of Holdings on a fully-diluted basisthen held by the

7



Permitted Holders, takentogether, or (B) shall have obtained the power (whether or not exercised)to elect a majority of the members of the board of directors (or similargoverning body) of Holdings; (iii) the majority of the seats (other thanvacant seats) on the board of directors (or similar governing body) of Holdingscease to be occupied by Persons who either (a) were members of the boardof directors of Holdings on the Second Amendment Effective Date or (b) wereeither (x) nominated for election by the board of directors of Holdings, amajority of whom were directors on the Second Amendment Effective Date or whoseelection or nomination for election was previously approved by a majority ofsuch directors or (y) designated or appointed by the PermittedHolders; or (iv) any “change of control” or similar event under theSenior Subordinated Note Documents or any other documents governingIndebtedness of Holdings or any of its Subsidiaries shall occur.

“Class” means (i) withrespect to Lenders, each of the following classes of Lenders: (a) Lendershaving Term Loan Exposure and (b) Lenders having Revolving Exposure(including Swing Line Lender) and (ii) with respect to Loans, each of thefollowing classes of Loans: (a) Term Loans and (b) Revolving Loans(including Swing Line Loans).

“Closing Date”means February 11, 2005.

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

“Collateral Agent” asdefined in the preamble hereto.

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

“Collateral Questionnaire”means a certificate in form satisfactory to Collateral Agent that providesinformation with respect to the personal or mixed property of each CreditParty.

“Commitment” meansany Revolving Commitment or Term Loan Commitment.

“Company” meansinitially, Finance Sub, and upon consummation of the Acquisition and theMerger, DynCorp International LLC.

8



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

“Consolidated Adjusted EBITDA”means, for any period, the Consolidated Net Income of Company and itsSubsidiaries for such period plus (i) the sum, without duplication, of thefollowing amounts to the extent deducted in computing such Consolidated NetIncome: (a) Consolidated Interest Expense, (b) federal, state andlocal franchise taxes and other taxes based on income or profits, (c) totaldepreciation expense, (d) total amortization expense, (e) other non-Cashitems (excluding any such non-Cash item to the extent that it representsan accrual or reserve for potential Cash items in any future period oramortization of a prepaid Cash item that was paid in a prior period), (f) managementfees paid by Company in accordance with Section 6.12, (g) restructuringcharges in an amount not to exceed $10,000,000 incurred in connection with thetransactions contemplated by this Agreement and the Related Agreements, (h) transitionexpenses in an amount not to exceed $5,000,000 incurred in connection with thetransactions contemplated by this Agreement and the Related Agreements, (i) anygoodwill impairment charges and (j) write-off of deferred financing costsin an amount not to exceed $3,000,000 per Fiscal Year minus (ii) othernon-Cash items increasing Consolidated Net Income for such period(excluding any such non-Cash item to the extent it represents thereversal of an accrual or reserve for potential Cash item in any prior periodor the accrual of revenue in the ordinary course of business); provided,that Consolidated Adjusted EBITDA for each of the Fiscal Quarters ended at July 2,2004, October 1, 2004 and December 31, 2004 shall be deemed to equal$25,255,000, $33,340,000 and $29,846,000,respectively.

“Consolidated Capital Expenditures”means, for any period, the aggregate of all expenditures of Company and itsSubsidiaries during such period determined on a consolidated basis that, inaccordance with GAAP, are or should be included in “purchase of property andequipment;” provided that “Consolidated Capital Expenditures” shall notinclude any expenditures (i) for replacements and substitutions forcapital assets, to the extent made with the proceeds of insurance in accordancewith Section 2.14(b), (ii) made as part of a Permitted Acquisition, (iii) forreplacements and substitutions for capital assets, to the extent made with theproceeds of assets sold, exchanged or otherwise disposed in accordance with,and permitted by, Section 6.9(b) and (c) or (iv) paid forwith the proceeds from the issuance or sale of Capital Stock of Holdings andthe corresponding equity investment by Holdings in Company reflected inthe consolidated statement of cash flows of Company and its Subsidiaries.

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

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

9



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

“Consolidated Excess Cash Flow”means, for any period, an amount (if positive) equal to: (i) the sum,without duplication, of the amounts for such period of (a) ConsolidatedAdjusted EBITDA, plus (b) the Consolidated Working Capital Adjustment,except to the extent attributable to an Asset Sale in respect of which Companyhas made a mandatory prepayment of the Loans in accordance with Section 2.14(a),minus (ii) the sum, without duplication, of the amounts for suchperiod of (a) voluntary and scheduled repayments of Indebtedness ofCompany and its Subsidiaries (excluding (x) repayments of Revolving Loansor Swing Line Loans except to the extent the Revolving Commitments arepermanently reduced in connection with such repayments), (b) ConsolidatedCapital Expenditures (net of any proceeds of any related financings withrespect to such expenditures), (c) Consolidated Cash Interest Expense, (d) provisionsfor current taxes based on income of Company and its Subsidiaries and payablein cash with respect to such period, and (e) management fees permittedunder Section 6.12.

“Consolidated Interest Expense”means, for any period, total interest expense (including that portionattributable to Capital Leases in accordance with GAAP and capitalizedinterest) of Company and its Subsidiaries on a consolidated basis with respectto all outstanding Indebtedness of Company and its Subsidiaries (after takinginto account the effect of any Interest Rate Agreements), including allamortization of debt issuance costs and original issue discount, non-cashinterest payments, the interest component of any deferred payment obligations,the interest component of all payments associated with Capital Leases, imputedinterest with respect to commissions, discounts and other fees and chargesincurred in respect of letter of credit or bankers’ acceptance financings,commissions, discounts and other fees and charges owed with respect to lettersof credit and net payments made under Interest Rate Agreements, but excluding,however, any amounts referred to in Section 2.11(d) payable on orbefore the Closing Date.

“Consolidated Net Income”means, for any period, (i) the net income (or loss) of Company and itsSubsidiaries on a consolidated basis for such period taken as a singleaccounting period determined in conformity with GAAP, minus (ii) (a) theincome (or loss) of any Person (other than a Subsidiary of Company) in whichany other Person (other than Company or any of its Subsidiaries) has a jointinterest, except to the extent of the amount of cash dividends or other cashdistributions actually paid to Company or any of its Subsidiaries by suchPerson during such period, (b) the income (or loss) of any Person accruedprior to the date it becomes a Subsidiary of Company or is merged into orconsolidated with Company or any of its Subsidiaries or that Person’s assetsare acquired by Company or any of its Subsidiaries, (c) the income of anySubsidiary of Company to the extent that the declaration or payment ofdividends

10



or similar distributionsby that Subsidiary of that income is not at the time permitted by operation ofthe terms of its charter or any agreement, instrument, judgment, decree, order,statute, rule or governmental regulation applicable to that Subsidiary, (d) anyafter-tax gains or losses attributable to Asset Sales (or transactionsthat are excluded from Asset Sales by clause (ix) of the definitionthereof) or returned surplus assets of any Pension Plan, (e) (to theextent not included in clauses (a) through (d) above) any netextraordinary or nonrecurring gains or net extraordinary or nonrecurringlosses, (f) the cumulative effect of a change in accounting principles and(g) any net loss resulting from Currency Agreements entered into in theordinary course of business and not for speculative purposes.

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

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

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

“Continuing Lenders” means thoseLenders under the Existing Credit Agreement immediately prior to the SecondAmendment Effective Date that execute and deliver a signature page to theSecond Amendment specifically in the capacity of a “Continuing Lender”.

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

“Contributing Guarantors”as defined in Section 7.2.

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

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

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

11



“Credit Date” meansthe date of a Credit Extension.

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

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

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

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

“Default” means acondition or event that, after notice or lapse of time or both, wouldconstitute an Event of Default.

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

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

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“Defaulted Loan” asdefined in Section 2.22.

“Defaulting Lender”as defined in Section 2.22.

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

“Documentation Agent”as defined in the preamble hereto.

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

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

“Eligible Assignee”means (i) any Lender, any Affiliate of any Lender and any Related Fund(any two or more Related Funds being treated as a single Eligible Assignee forall purposes hereof), and (ii) any commercial bank, insurance company,investment or mutual fund or other entity that is an “accredited investor” (asdefined in Regulation D under the Securities Act) and which extends creditor buys loans as one of its businesses; provided, no Affiliate ofHoldings or Sponsor shall be an Eligible Assignee.

“Employee Benefit Plan”means any “employee benefit plan” as defined in Section 3(3) of ERISAwhich is (or, if such plan were terminated at such time, would under Section 4069of ERISA be deemed to be) sponsored, maintained or contributed to by, orrequired to be contributed by, Holdings, any of its Subsidiaries or any oftheir respective ERISA Affiliates.

“Environmental Claim”means any written: notice, notice of violation, claim, action, suit,proceeding, demand, abatement order or other order or directive (conditional orotherwise), by any Governmental Authority or any other Person, arising (i) pursuantto or in connection with any actual or alleged violation of any EnvironmentalLaw; (ii) in connection with any Hazardous Material or any actual oralleged Hazardous Materials Activity; or (iii) in connection with anyactual or alleged damage, injury, threat or harm to health, safety, naturalresources or the environment.

“Environmental Laws”means any and all foreign or domestic, federal or state (or any subdivision ofeither of them), statutes, ordinances, orders, rules, regulations, judgments,Governmental Authorizations, or any other requirements of GovernmentalAuthorities relating to (i) any Hazardous Materials Activity; (ii) thegeneration, use, storage, transportation or disposal

13



of Hazardous Materials;or (iii) occupational safety and health, industrial hygiene, or theprotection of human, plant or animal health or welfare, in any mannerapplicable to Holdings or any of its Subsidiaries or any Facility.

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

“ERISA Affiliate”means, as applied to any Person, (i) any corporation which is a member ofa controlled group of corporations within the meaning of Section 414(b) ofthe Internal Revenue Code of which that Person is a member; (ii) any tradeor business (whether or not incorporated) which is a member of a group oftrades or businesses under common control within the meaning of Section 414(c) ofthe Internal Revenue Code of which that Person is a member; and (iii) anymember of an affiliated service group within the meaning of Section 414(m) or(o) of the Internal Revenue Code of which that Person, any corporationdescribed in clause (i) above or any trade or business described in clause(ii) above is a member. Any former ERISA Affiliate of Holdings or any ofits Subsidiaries shall continue to be considered an ERISA Affiliate of Holdingsor any such Subsidiary within the meaning of this definition with respect tothe period such entity was an ERISA Affiliate of Holdings or such Subsidiaryand with respect to liabilities arising after such period for which Holdings orsuch Subsidiary could be liable under the Internal Revenue Code or ERISA.

“ERISA Event” means(i) a “reportable event” within the meaning of Section 4043 of ERISAand the regulations issued thereunder with respect to any Pension Plan(excluding those for which the provision for 30-day notice to the PBGChas been waived by regulation); (ii) the failure to meet the minimumfunding standard of Section 412 of the Internal Revenue Code with respectto any Pension Plan (whether or not waived in accordance with Section 412(d) ofthe Internal Revenue Code) or the failure to make by its due date a requiredinstallment under Section 412(m) of the Internal Revenue Code withrespect to any Pension Plan or the failure to make any required contribution toa Multiemployer Plan; (iii) the provision by the administrator of anyPension Plan pursuant to Section 4041(a)(2) of ERISA of a notice ofintent to terminate such plan in a distress termination described in Section 4041(c) ofERISA; (iv) the withdrawal by Holdings, any of its Subsidiaries or any oftheir respective ERISA Affiliates from any Pension Plan with two or morecontributing sponsors or the termination of any such Pension Plan resulting inliability to Holdings, any of its Subsidiaries or any of their respective ERISAAffiliates pursuant to Section 4063 or 4064 of ERISA; (v) theinstitution by the PBGC of proceedings to terminate any Pension Plan, or theoccurrence of any event or condition which might constitute grounds under ERISAfor the termination of, or the appointment of a trustee to administer, anyPension Plan; (vi) the imposition of liability on Holdings, any of itsSubsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or4069 of ERISA or by reason of the application of Section 4212(c) ofERISA; (vii) the withdrawal of Holdings, any of its Subsidiaries or any oftheir respective ERISA Affiliates in a

14



complete or partialwithdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from anyMultiemployer Plan if there is any potential liability therefor, or the receiptby Holdings, any of its Subsidiaries or any of their respective ERISAAffiliates of notice from any Multiemployer Plan that it is in reorganizationor insolvency pursuant to Section 4241 or 4245 of ERISA, or that itintends to terminate or has terminated under Section 4041A or 4042 ofERISA; (viii) the occurrence of an act or omission which could give riseto the imposition on Holdings, any of its Subsidiaries or any of theirrespective ERISA Affiliates of fines, penalties, taxes or related charges underChapter 43 of the Internal Revenue Code or under Section 409, Section 502(c),(i) or (l), or Section 4071 of ERISA in respect of any EmployeeBenefit Plan; (ix) the assertion of a material claim (other than routineclaims for benefits) against any Employee Benefit Plan other than aMultiemployer Plan or the assets thereof, or against Holdings, any of itsSubsidiaries or any of their respective ERISA Affiliates in connection with anyEmployee Benefit Plan; (x) receipt from the Internal Revenue Service ofnotice of the failure of any Pension Plan (or any other Employee Benefit Planintended to be qualified under Section 401(a) of the Internal RevenueCode) to qualify under Section 401(a) of the Internal Revenue Code,or the failure of any trust forming part of any Pension Plan to qualify forexemption from taxation under Section 501(a) of the Internal RevenueCode; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or412(n) of the Internal Revenue Code or pursuant to ERISA with respect toany Pension Plan.

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

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

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

“Existing Indebtedness”means Indebtedness described in Schedule 6.1.

“Existing Term Loan” means aterm loan made to Company pursuant to this Agreement in existence immediatelyprior to the Second Amendment Effective Date.

“Existing Term Loan Commitment” meansthe commitment of an Existing Term Loan Lender to make or otherwise fund anExisting Term Loan pursuant to Section 2.1(a) of the Existing CreditAgreement on the Closing Date, and “Existing Term LoanCommitments” means such commitments of all such Lenders in theaggregate.

“Existing Term Loan Lender”means a Lender who funded or made an Existing Term Loan.

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“Facility” meansany real property (including all buildings, fixtures or other improvementslocated thereon) now, hereafter or heretofore owned, leased, operated or usedby Holdings or any of its Subsidiaries or any of their respective predecessorsor Affiliates.

“Fair Share” asdefined in Section 7.2.

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

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

“Finance Sub” meansDI Finance Sub LLC, a Delaware limited liability company.

“Financial Officer Certification”means, with respect to the financial statements for which such certification isrequired, the certification of the chief financial officer of Holdings thatsuch financial statements fairly present, in all material respects, thefinancial condition of Holdings and its Subsidiaries as at the dates indicatedand the results of their operations and their cash flows for the periodsindicated, subject to changes resulting from audit and normal year-endadjustments and the absence of footnotes.

“Financial Plan” asdefined in Section 5.1(i).

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

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

“Fiscal Year” meansthe fiscal year of Company and its Subsidiaries ending on the Friday closest toMarch 31 of each calendar year.

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

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

“Funding Default”as defined in Section 2.22.

“Funding Guarantors”as defined in Section 7.2.

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

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

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

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

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

“Grantor” asdefined in the Pledge and Security Agreement.

“GSCP” as definedin the preamble hereto.

“Guaranteed Obligations” asdefined in Section 7.1.

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

“Guarantor Subsidiary”means each Guarantor other than Holdings.

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

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“Hazardous Materials”means any chemical, material or substance under any Environmental Law.

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

“Hedge Agreement”means an Interest Rate Agreement or a Currency Agreement entered into with aLender Counterparty in order to satisfy the requirements of this Agreement.

“Highest Lawful Rate”means the maximum lawful interest rate, if any, that at any time or from timeto time may be contracted for, charged, or received under the laws applicableto any Lender from time to time in effect.

“Historical Financial Statements”means as of the Closing Date, (i) the audited financial statements ofHoldings and its Subsidiaries, for the immediately preceding two Fiscal Years,consisting of balance sheets and the related consolidated statements of income,stockholders’ equity and cash flows for such Fiscal Years, and (ii) theunaudited financial statements of Holdings and its Subsidiaries as at the mostrecently ended Fiscal Quarter, consisting of a balance sheet and the relatedconsolidated statements of income, stockholders’ equity and cash flows for thethree-, six-or nine-month period, as applicable, ending onsuch date, and, in the case of clauses (i) and (ii), certified by thechief financial officer of Company that they fairly present, in all materialrespects, the financial condition of Holdings and its Subsidiaries as at thedates indicated and the results of their operations and their cash flows forthe periods indicated, subject, in the case of clause (ii), to changesresulting from audit and normal year-end adjustments and the absence offootnotes.

“Holdings” asdefined in the preamble hereto.

“Increased Amount Date”as defined in Section 2.24.

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

“Indebtedness”, asapplied to any Person, means, without duplication, (i) all indebtednessfor borrowed money; (ii) that portion of obligations with respect toCapital Leases that is properly classified as a liability on a balance sheet inconformity with GAAP; (iii) notes payable and drafts accepted representingextensions of credit whether or not representing

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obligations for borrowedmoney (excluding accounts payable which are classified as current liabilitiesin accordance with GAAP and which are not more than 90 days past due); (iv) anyobligation owed for all or any part of the deferred purchase price of propertyor services (excluding any such obligations incurred under ERISA), whichpurchase price is (a) due more than six months from the date of incurrenceof the obligation in respect thereof or (b) evidenced by a note or similarwritten instrument; (v) all indebtedness secured by any Lien on anyproperty or asset owned or held by that Person regardless of whether theindebtedness secured thereby shall have been assumed by that Person or isnonrecourse to the credit of that Person; (vi) the face amount of anyletter of credit issued for the account of that Person or as to which thatPerson is otherwise liable for reimbursement of drawings; (vii) the director indirect guaranty, endorsement (otherwise than for collection or deposit inthe ordinary course of business), co-making, discounting with recourse orsale with recourse by such Person of the obligation of another; (viii) anyobligation of such Person the primary purpose or intent of which is to provideassurance to an obligee that the obligation of the obligor thereof will be paidor discharged, or any agreement relating thereto will be complied with, or theholders thereof will be protected (in whole or in part) against loss in respectthereof; (ix) any liability of such Person for an obligation of anotherthrough any agreement (contingent or otherwise) (a) to purchase,repurchase or otherwise acquire such obligation or any security therefor, or toprovide funds for the payment or discharge of such obligation (whether in theform of loans, advances, stock purchases, capital contributions or otherwise)or (b) to maintain the solvency or any balance sheet item, level of incomeor financial condition of another if, in the case of any agreement describedunder subclauses (a) or (b) of this clause (ix), the primary purposeor intent thereof is as described in clause (viii) above; and (x) allobligations of such Person in respect of any exchange traded or over thecounter derivative transaction, including, without limitation, any InterestRate Agreement and Currency Agreement, whether entered into for hedging orspeculative purposes; provided, in no event shall obligations under anyInterest Rate Agreement and any Currency Agreement be deemed “Indebtedness” forany purpose under Section 6.8. For purposes of this definition, (A) theamount of any Indebtedness represented by a guaranty or other similar instrumentshall be the lesser of the principal amount of the obligations guaranteed andstill outstanding and the maximum amount for which the guaranteeing Person maybe liable pursuant to the terms of the instrument embodying such Indebtedness, (B) theamount of any Indebtedness described in clause (v) above for whichrecourse is limited to certain property of such Person shall be the lower ofthe amount of the obligation and the fair market value of the property securingsuch obligation, and (C) the principal amount of the Indebtedness underany Interest Rate Agreement or Currency Agreement at any time shall be equal tothe amount payable as a result of the termination of such Interest RateAgreement or Currency Agreement at such time.

“Indemnified Liabilities”means, collectively, any and all liabilities, obligations, losses, damages(including natural resource damages), penalties, claims (includingEnvironmental Claims), costs (including the costs of any investigation, study,sampling, testing,

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abatement, cleanup,removal, remediation or other response action necessary to remove, remediate,clean up or abate any Hazardous Materials Activity), expenses and disbursementsof any kind or nature whatsoever (including the reasonable fees anddisbursements of counsel for Indemnitees in connection with any investigative,administrative or judicial proceeding commenced or threatened by any Person,whether or not any such Indemnitee shall be designated as a party or apotential party thereto, and any fees or expenses incurred by Indemnitees inenforcing this indemnity), whether direct, indirect or consequential andwhether based on any federal, state or foreign laws, statutes, rules orregulations (including securities and commercial laws, statutes, rules orregulations and Environmental Laws), on common law or equitable cause or oncontract or otherwise, that may be imposed on, incurred by, or asserted againstany such Indemnitee, in any manner relating to or arising out of (i) thisAgreement or the other Credit Documents or the transactions contemplated herebyor thereby (including the Lenders’ agreement to make Credit Extensions or theuse or intended use of the proceeds thereof, or any enforcement of any of theCredit Documents (including any sale of, collection from, or other realizationupon any of the Collateral or the enforcement of the Guaranty)); or (ii) anyEnvironmental Claim or any Hazardous Materials Activity relating to or arisingfrom, directly or indirectly, any past or present activity, operation, land ownership,or practice of Holdings or any of its Subsidiaries.

“Indemnitee” asdefined in Section 10.3.

“Installment” asdefined in Section 2.12.

“Installment Date”as defined in Section 2.12.

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

“Interest Payment Date”means with respect to (i) any Revolving Loan that is a Base Rate Loan,each March 31, June 30, September 30 and December 31 ofeach year, commencing on the first such date to occur after the Closing Dateand the final maturity date of such Loan; (ii) any Revolving Loan that isa Eurodollar Rate Loan, the last day of each Interest Period applicable to suchLoan; provided, in the case of each Interest Period of longer than threemonths “Interest Payment Date” shall also include each date that is threemonths, or an integral multiple thereof, after the commencement of suchInterest Period; and (iii) Term Loans, each April 1, July 1, October 1and January 1 of each year, commencing on July 1, 2005 through thefinal maturity date of such Loan.

“Interest Period”means, in connection with a Eurodollar Rate Loan, an interest period of one-,two-, three- or six-months (or nine- or twelve-months, ifavailable to all Lenders), as selected by Company in the applicable FundingNotice or Conversion/Continuation Notice, (i) 

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initially, commencing onthe Credit Date or Conver­sion/Continuation Date thereof, as the case may be;and (ii) thereafter, commencing on the day on which the immediatelypreceding Interest Period expires; provided, (a) if an InterestPeriod would otherwise expire on a day that is not a Business Day, suchInterest Period shall expire on the next succeeding Business Day unless nofurther Business Day occurs in such month, in which case such Interest Periodshall expire on the immediately preceding Business Day; (b) any InterestPeriod that begins on the last Business Day of a calendar month (or on a dayfor which there is no numerically corresponding day in the calendar month atthe end of such Interest Period) shall, subject to clauses (c) and (d), ofthis definition, end on the last Business Day of a calendar month; (c) noInterest Period with respect to any portion of the Term Loans shall extendbeyond the Term Loan Maturity Date; and (d) no Interest Period withrespect to any portion of the Revolving Loans shall extend beyond the RevolvingCommitment Termination Date.

“Interest Rate Agreement”means any interest rate swap agreement (whether from fixed to floating or fromfloating to fixed), interest rate cap agreement, interest rate collaragreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is for thepurpose of hedging the interest rate exposure associated with Holdings’ and itsSubsidiaries’ operations and not for speculative purposes.

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

“Internal Revenue Code”means the Internal Revenue Code of 1986, as amended to the Closing Date andfrom time to time hereafter, and any successor statute.

“Investment” means (i) anydirect or indirect purchase or other acquisition by Holdings or any of itsSubsidiaries of, or of a beneficial interest in, any of the Securities of anyother Person (other than a Guarantor Subsidiary); (ii) any direct orindirect purchase or other acquisition for value, by any Subsidiary of Holdingsfrom any Person (other than Holdings or any Guarantor Subsidiary), of anyCapital Stock of such Person; and (iii) any direct or indirect loan,advance (other than advances to officers and employees for moving,entertainment and travel expenses, drawing accounts and similar expenditures inthe ordinary course of business) or capital contribution by Holdings or any ofits Subsidiaries to any other Person (other than Holdings or any Guarantor Subsidiary),including all indebtedness and accounts receivable from that other Person thatare not current assets or did not arise from sales to that other Person in theordinary course of business. The amount of any Investment shall be the originalcost of such Investment plus the cost of all additions thereto, without anyadjustments for increases or decreases in value, or write-ups, write-downsor write-offs with respect to such Investment, minus the amount receivedupon the sale, liquidation, repayment or return of such Investment.

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

“Issuing Bank”means Bank of America, N.A., as Issuing Bank hereunder, together with itspermitted successors and assigns in such capacity.

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

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

“Landlord Personal PropertyCollateral Access Agreement” means a Landlord Waiver andConsent Agreement substantially in the form of Exhibit K with such amendmentsor modifications as may be approved by Collateral Agent (such approval not tobe unreasonably withheld, conditioned or delayed).

“Lead Arranger”means GSCP.

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

“Lender” and “Lenders” means (a) prior to the Second Amendment EffectiveDate, each financial institution listed on the signature pages hereto as aLender, (b) effective as of the Second Amendment Effective Date, thePersons signing the Second Amendment as either a Continuing Lender or aRevolving Lender and (c) any other Person that becomes a party heretopursuant to an Assignment Agreement or a Joinder Agreement; providedthat the term “Lenders”, when used in the context of a particular Commitmentshall mean the Lenders having that Commitment.

“LenderCounterparty” meanseach Lender or any Affiliate of a Lender counterparty to a Hedge Agreement(including any Person who is a Lender (or any Affiliate thereof) as of the dateof such Hedge Agreement but subsequently ceases to be a Lender) including,without limitation, each such Affiliate that enters into a joinder agreementwith Collateral Agent.

“Letter of Credit”means a commercial or standby letter of credit issued or to be issued byIssuing Bank pursuant to this Agreement.

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“Letter of Credit Sublimit”means the lesser of (i) $60,000,000 and (ii) the aggregate unusedamount of the Revolving Commitments then in effect.

“Letter of Credit Usage”means, as at any date of determination, the sum (without duplication) of (i) themaximum aggregate amount which is, or at any time thereafter may become,available for drawing under all Letters of Credit then outstanding, and (ii) theaggregate amount of all drawings under Letters of Credit honored by IssuingBank and not theretofore reimbursed by or on behalf of Company.

“Leverage Ratio”means the ratio as of the last day of any Fiscal Quarter of (i) ConsolidatedTotal Debt as of such day to (ii) Consolidated Adjusted EBITDA for thefour-Fiscal Quarter period ending on such date.

“Lien” means (i) anylien, mortgage, pledge, assignment, security interest, charge or encumbrance ofany kind (including any agreement to give any of the foregoing, any conditionalsale or other title retention agreement, and any lease in the nature thereof)and any option, trust or other preferential arrangement having the practicaleffect of any of the foregoing and (ii) in the case of Securitiesconstituting Collateral, any purchase option, call or similar right of a thirdparty with respect to such Securities.

“Loan” means a TermLoan, a Revolving Loan and a Swing Line Loan.

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

“Material Adverse Effect”means a material adverse effect on and/or material adverse developments withrespect to (i) the business, operations, properties, assets or financialcondition of Holdings and its Subsidiaries taken as a whole; (ii) theability of the Company or the Credit Parties, taken as a whole, to fully andtimely perform its or their Obligations; (iii) the legality, validity,binding effect or enforceability against a Credit Party of a material CreditDocument to which it is a party; or (iv) the rights, remedies and benefitsavailable to, or conferred upon, any Agent and any Lender or any Secured Partyunder any material Credit Document.

“Material Contract”means any contract or other written agreement to which Holdings or any of itsSubsidiaries is a party (other than the Credit Documents) for which breach,nonperformance, cancellation or failure to renew could reasonably be expectedto have a Material Adverse Effect.

“Material Real Estate Asset’’means (i) (a) any fee-owned Real Estate Asset having a fairmarket value in excess of $1,000,000 as of the date of the acquisition thereofand

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(b) all LeaseholdProperties other than those with respect to which the aggregate payments underthe term of the lease are less than $1,000,000 per annum or (ii) any RealEstate Asset that the Requisite Lenders have determined in their reasonablediscretion is material to the business, operations, properties, assets,financial condition or prospects of Holdings and its Subsidiaries, taken as awhole.

“Merger” means the merger of DIFinance Sub LLC with and into DynCorp International LLC, with DynCorpInternational LLC as the survivor.

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

“Mortgage” means amortgage or deed of trust substantially in the form of Exhibit J, as itmay be amended, supplemented or otherwise modified from time to time.

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

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

“Narrative Report”means, with respect to the financial statements for which such narrative reportis required, a narrative report describing the operations of Company andits Subsidiaries in the form prepared for presentation to senior managementthereof for the applicable month, Fiscal Quarter or Fiscal Year and for theperiod from the beginning of the then current Fiscal Year to the end of suchperiod to which such financial statements relate; provided, that suchnarrative report may be in the form of a management’s discussion and analysisof financial condition and results of operations customarily included infilings made with the Securities and Exchange Commission.

“Net Asset Sale Proceeds”means, with respect to any Asset Sale, an amount equal to:  (i) Cash payments (including any Cashreceived by way of deferred payment pursuant to, or by monetization of, a notereceivable or otherwise, but only as and when so received) received by Holdingsor any of its Subsidiaries from such Asset Sale (net of purchase priceadjustments reasonably expected to be payable in connection therewith; providedthat to the extent such purchase price adjustment is determined to be notpayable or is otherwise not paid within 180 days of such Asset Sale (other thanas a result of a dispute with respect to such purchase price adjustment whichis subject to a resolution procedure set forth in the applicable transactiondocuments), such proceeds shall constitute Net Asset Sale Proceeds), minus(ii) any bona fide costs incurred in connection with such Asset Sale,including (a) income or gains taxes payable by the seller as a result ofany gain recognized in connection with such Asset Sale and any transfer,documentary or other taxes payable in connection therewith, (b) payment ofthe

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outstanding principalamount of, premium or penalty, if any, and interest on any Indebtedness (otherthan the Loans) that is secured by a Lien on the stock or assets in questionand that is required to be repaid under the terms thereof as a result of suchAsset Sale, (c) a reasonable reserve for any indemnification payments(fixed or contingent) attributable to seller’s indemnities and representa­tionsand warranties to purchaser in respect of such Asset Sale undertaken byHoldings or any of its Subsidiaries in connection with such Asset Saleincluding, without limitation, pension and other post-employment benefitliabilities and liabilities related to environmental matters associated withsuch Asset Sale, and (d) brokerage fees, accountants’ fees, investmentbanking fees, legal fees, costs and expenses, survey costs, title insurancepremiums and other customary fees, costs and expenses actually incurred inconnection with such Asset Sale.

“Net Insurance/Condemnation Proceeds”means an amount equal to:  (i) anyCash payments or proceeds received by Holdings or any of its Subsidiaries (a) underany casualty insurance policy in respect of a covered loss thereunder or (b) asa result of the taking of any assets of Holdings or any of its Subsidiaries byany Person pursuant to the power of eminent domain, condemnation or otherwise,or pursuant to a sale of any such assets to a purchaser with such power underthreat of such a taking, minus (ii) (a) any actual andreasonable costs incurred by Holdings or any of its Subsidiaries in connectionwith the adjustment or settlement of any claims of Holdings or such Subsidiaryin respect of such loss, eminent domain, condemnation or otherwise or suchsale, including, without limitation, payment of the outstanding principalamount of, premium or penalty, if any, and interest on any Indebtedness (otherthan the Loans) that is secured by a Lien on the assets in question and that isrequired to be repaid under the terms thereof as a result of such loss, eminentdomain, condemnation or otherwise or such sale, and (b) any bona fidecosts incurred in connection with any sale of such assets as referred to inclause (i)(b) of this definition, including income taxes payable as aresult of any gain recognized in connection therewith and any transfer,documentary or other taxes payable in connection therewith.

“New Revolving Commitments”as defined in Section 2.24.

“New Revolving Lender”as defined in Section 2.24.

“New Revolving Loan”as defined in Section 2.24.

“New Term Loan” means a termloan made to Company on the Second Amendment Effective Date pursuant to Section 2.1(a) ofthis Agreement, as amended by the Second Amendment.

“New Term Loan Commitment” meansthe commitment of a Lender, if any, to make or otherwise fund a New Term Loanhereunder pursuant to Section 2.1(a) of this

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Agreement, as amended bythe Second Amendment, on the Second Amendment Effective Date; and “New Term Loan Commitments” means such commitments of allsuch Lenders in the aggregate. The amount of each Lender’s New Term LoanCommitment, if any, is on file with the Administrative Agent or contained inthe applicable Assignment Agreement, subject to any adjustment or reductionpursuant to the terms and conditions hereof. The aggregate amount of the NewTerm Loan Commitments as of the Second Amendment Effective Date is $341,550,000.

“NewTerm Loan Lender” means each Lender with a New Term LoanCommitment or with outstanding New Term Loans.

“New Term Loan Note” means apromissory note in the form Exhibit B-1, as it may be amended,supplemented or otherwise modified from time to time.

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

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

“Note” means a NewTerm Loan Note, a Revolving Loan Note or a Swing Line Note.

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

“Obligations” meansall obligations of every nature of each Credit Party from time to time owed tothe Agents (including former Agents), the Lenders or any of them and LenderCounterparties, under any Credit Document or Hedge Agreement, whether forprincipal, interest (including interest which, but for the filing of a petitionin bankruptcy with respect to such Credit Party, would have accrued on anyObligation, whether or not a claim is allowed against such Credit Party forsuch interest in the related bankruptcy proceeding), reimbursement of amountsdrawn under Letters of Credit, payments for early termination of HedgeAgreements, fees, expenses, indemnification or otherwise.

“Obligee Guarantor”as defined in Section 7.7.

“Organizational Documents”means (i) with respect to any corporation, its certificate or articles ofincorporation or organization, as amended, and its by-laws, as amended,or, as the case may be, its memorandum and articles, as amended, (ii) withrespect to any limited partnership, its certificate of limited partnership, asamended, and its partnership agreement, as amended, (iii) with respect toany general partnership, its partnership agreement, as amended, (iv) withrespect to any limited liability company, its articles of organization, asamended, and its operating agreement, as amended, and (v) with respect toany other Person, comparable

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instruments anddocuments, as amended. In the event any term or condition of this Agreement orany other Credit Document requires any Organizational Document to be certifiedby a secretary of state or similar governmental official, the reference to anysuch “Organizational Document” shall only be to a document of a typecustomarily certified by such governmental official.

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

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

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

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

(ii)           all transactions in connectiontherewith shall be consummated, in all material respects, in accordance withall applicable laws and in conformity with all applicable GovernmentalAuthorizations;

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

(iv)          Company and its Subsidiaries shall bein compliance with the financial covenants set forth in Section 6.8 on apro forma basis after giving effect to such acquisition as of the last day ofthe Fiscal Quarter most recently ended (as determined in accordance with Section 6.8(d));

(v)           Company shall have delivered toAdministrative Agent (A) at least 10 Business Days prior to such proposedacquisition, a Compliance Certificate evidencing compliance with Section 6.8as required under clause (iv) above, together with all relevantfinancial information with respect to such acquired assets, including,

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withoutlimitation, the aggregate consideration for such acquisition and any otherinformation required to demonstrate compliance with Section 6.8; and

(vi)          any Person or assets or division asacquired in accordance herewith shall be in same business or lines of businessin which Company and/or its Subsidiaries are engaged as of the Closing Date orany business reasonably related thereto.

“Permitted Holders”means (a) Sponsor and its Affiliates and (b) any Person whose votingrights with respect to Holdings’ Voting Stock are controlled by Sponsor and itsAffiliates.

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

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

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

“Prime Rate” meansthe rate of interest quoted in The WallStreet Journal, Money Rates Section as the Prime Rate(currently defined as the base rate on corporate loans posted by at least 75%of the nation’s thirty (30) largest banks), as in effect from time to time. ThePrime Rate is a reference rate and does not necessarily represent the lowest orbest rate actually charged to any customer. Administrative Agent or any otherLender may make commercial loans or other loans at rates of interest at, aboveor below the Prime Rate.

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

“Projections” asdefined in Section 4.8.

“Pro Rata Share”means (i) with respect to all payments, computations and other mattersrelating to the Term Loan of any Lender, the percentage obtained by dividing (a) theTerm Loan Exposure of that Lender by (b) the aggregate Term Loan Exposureof all Lenders; and (ii) with respect to all payments, computations andother matters relating to the

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Revolving Commitment orRevolving Loans of any Lender or any Letters of Credit issued or participationspurchased therein by any Lender or any participations in any Swing Line Loanspurchased by any Lender, the percentage obtained by dividing (a) theRevolving Exposure of that Lender by (b) the aggregate Revolving Exposureof all Lenders. For all other purposes with respect to each Lender, “Pro RataShare” means the percentage obtained by dividing (A) an amount equal tothe sum of the Term Loan Exposure and the Revolving Exposure of that Lender, by(B) an amount equal to the sum of the aggregate Term Loan Exposure and theaggregate Revolving Exposure of all Lenders.

“Purchase Agreement” means thatcertain Purchase Agreement, dated as of December 12, 2004 (as amended,supplemented or otherwise modified through the Closing Date, among ComputerSciences Corporation, Seller, The Veritas Capital Fund II, L.P. and Holdings.

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

“Reaffirmation Agreement” meansa Reaffirmation Agreement substantiallyin the form of Exhibit L to be executed by Company and eachGuarantor on the Second Amendment Effective Date, as it may be amended,supplemented or otherwise modified from time to time.

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

“Register” asdefined in Section 2.7(b).

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

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

“Related Agreements”means, collectively, the Purchase Agreement and the Senior Subordinated NoteDocuments.

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

“Release” means anyrelease, spill, emission, leaking, pumping, pouring, injection, escaping,deposit, disposal, discharge, dispersal, dumping, leaching or migration of anyHazardous Material into the indoor or outdoor environment (including theabandonment or

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disposal of any barrels,containers or other closed receptacles containing any Hazardous Material).

“Release Documents” as definedin Section 9.8(a).

“Replacement Lender”as defined in Section 2.23.

“Repricing Prepayment” asdefined in Section 2.13(c).

“Requisite Class Lenders”means, at any time of determination, (i) for the Class of Lendershaving Term Loan Exposure, Lenders holding more than 50% of the aggregate TermLoan Exposure of all Lenders; and (ii) for the Class of Lendershaving Revolving Exposure, Lenders holding more than 50% of the aggregateRevolving Exposure of all Lenders.

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

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

“Revolving Commitment”means the commitment of a Lender to make or otherwise fund any Revolving Loanand to acquire participations in Letters of Credit and Swing Line Loanshereunder and “Revolving Commitments” meanssuch commitments of all Lenders in the aggregate.  The amount of each Lender’s RevolvingCommitment, if any, is set forth on Appendix A-2 or in the applicableAssignment Agreement, subject to any adjustment or reduction pursuant to theterms and conditions hereof. The aggregate amount of the Revolving Commitmentsas of the Second Amendment Effective Date is $90,000,000.

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

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“Revolving Commitment TerminationDate” means the earliest to occur of (i) the fifthanniversary of the Closing Date, (ii) the date the Revolving Commitmentsare permanently reduced to zero pursuant to Section 2.13(b) or 2.14,and (iii) the date of the termination of the Revolving Commitmentspursuant to Section 8.1.

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

“Revolving Loan”means a Loan made by a Lender to Company pursuant to Section 2.2(a) and/or2.22.

“Revolving Loan Note”means a promissory note in the form of Exhibit B-2, as it may beamended, supplemented or otherwise modified from time to time.

“S&P” meansStandard & Poor’s Ratings Group, a division of The McGraw HillCorporation.

“Second Amendment” means theSecond Amendment dated as of June 28, 2006.

“Second Amendment Effective Date”means June 28, 2006.

“Second Amendment Effective DateCertificate” means a Second Amendment Effective DateCertificate substantially in the form of Exhibit G-1.

“Second Amendment Effective Date SolvencyCertificate” means a Second Amendment Effective Date SolvencyCertificate substantially in the form of Exhibit G-2.

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

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

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

“Seller” meansDynCorp.

“Senior Subordinated Note Agreement”means any indenture, note purchase agreement or other agreement pursuant towhich the Senior Subordinated Notes are issued as in effect on the Closing Dateand thereafter amended from time to time subject to the requirements of thisAgreement.

“Senior Subordinated Note Documents”means the Senior Subordinated Notes, the Senior Subordinated Note Agreement,the Senior Subordinated Note Guarantees and all other documents executed and deliveredwith respect to the Senior Subordinated Notes or the Senior Subordinated NoteAgreement.

“Senior Subordinated Note Guarantees”shall mean the guarantees of the Guarantor Subsidiaries pursuant to the SeniorSubordinated Note Agreement.

“Senior Subordinated Notes”means the 9.5% Senior Subordinated Notes due 2013 issued by Company and DIVCapital Corporation and any registered notes issued by Company and DIV CapitalCorporation in exchange for, and as contemplated by, such notes withsubstantially identical terms as such notes.

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

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

“Significant Subsidiary” meansany Subsidiary that would be a “significant subsidiary” as defined in Article 1,Rule 1-02 of Regulation S-X, promulgated pursuant to the SecuritiesAct, as such Regulation is in effect on the Closing Date.

“Solvency Certificate” meansa Solvency Certificate of the chief financial officer of Holdings substantiallyin the form of Exhibit G-2.

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“Solvent” means,with respect to any Credit Party, that as of the date of determination, both (i) (a) thesum of such Credit Party’s debt (including contingent liabilities) does notexceed the present fair saleable value of such Credit Party’s present assets; (b) suchCredit Party’s capital is not unreasonably small in relation to its business ascontemplated on the Closing Date and reflected in the Projections or withrespect to any transaction contemplated or undertaken after the Closing Date;and (c) such Person has not incurred and does not intend to incur, orbelieve (nor should it reasonably believe) that it will incur, debts beyond itsability to pay such debts as they become due (whether at maturity orotherwise); and (ii) to the extent different from the standard set forthin clause (i), such Person is “solvent” within the meaning given that term andsimilar terms under the Bankruptcy Code and applicable laws in the states ofCalifornia, Delaware, Nevada, Texas and Virginia relating to fraudulent transfersand conveyances. For purposes of this definition, the amount of any contingentliability at any time shall be computed as the amount that, in light of all ofthe facts and circumstances existing at such time, represents the amount thatcan reasonably be expected to become an actual or matured liability(irrespective of whether such contingent liabilities meet the criteria foraccrual under Statement of Financial Accounting Standard No.5).

“Sponsor” meansVeritas Capital Management II, L.L.C.

“Subject Transaction”as defined in Section 6.8(d).

“Subordinated Indebtedness”means (i) all obligations under the Senior Subordinated Note Documents and(ii) Indebtedness that is subordinated in right of payment to theObligations on terms substantially the same as the subordination provisionscontained in the Senior Subordinated Note Documents or otherwise reasonablysatisfactory to the Administrative Agent.

“Subsidiary” means,with respect to any Person, any corporation, partnership, limited liabilitycompany, association, joint venture or other business entity of which more than50% of the Voting Stock of such entity is at the time owned or controlled,directly or indirectly, by that Person or one or more of the other Subsidiariesof that Person or a combination thereof; provided, in determining thepercentage of ownership interests of any Person controlled by another Person,no ownership interest in the nature of a “qualifying share” of the formerPerson shall be deemed to be outstanding.

“Swing Line Lender”means GSCP in its capacity as Swing Line Lender hereunder, together with itspermitted successors and assigns in such capacity.

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

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“Swing Line Note”means a promissory note in the form of Exhibit B-3, as it may beamended, supplemented or otherwise modified from time to time.

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

“Syndication Agent”as defined in the preamble hereto.

“Tax” means anypresent or future tax, levy, impost, duty, assessment, charge, fee, deductionor withholding of any nature and whatever called, by whomsoever, on whomsoeverand wherever imposed, levied, collected, withheld or assessed; provided,“Tax on the overall net income” of a Person shall be construed as a referenceto a tax imposed by the jurisdiction in which that Person is organized or inwhich that Person’s applicable principal office (and/or, in the case of aLender, its lending office) is located or in which that Person (and/or, in thecase of a Lender, its lending office) is deemed to be doing business on all orpart of the net income, profits or gains (whether worldwide, or only insofar assuch income, profits or gains are considered to arise in or to relate to aparticular jurisdiction, or otherwise) of that Person (and/or, in the case of aLender, its applicable lending office).

“Term Loan” means aNew Term Loan.

“Term Loan Commitment”means the New Term Loan Commitment of a Lender and “Term Loan Commitments” means such commitments of all Lendersin the aggregate.

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

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

“Terminated Lender”as defined in Section 2.23.

“Total Utilization of RevolvingCommitments” means, as at any date of determination, the sumof (i) the aggregate principal amount of all outstanding Revolving Loans(other than Revolving Loans made for the purpose of repaying any Refunded SwingLine Loans or reimbursing Issuing Bank for any amount drawn under any Letter ofCredit, but not yet so

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applied), (ii) theaggregate principal amount of all outstanding Swing Line Loans, and (iii) theLetter of Credit Usage.

“Transaction Costs”means the fees, costs and expenses payable by Holdings, Company or any ofCompany’s Subsidiaries on or before the Closing Date or within a reasonableperiod of time thereafter in connection with the transactions contemplated bythe Credit Documents and the Related Agreements, which Transaction Costs shallnot exceed $40,000,000.

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

“UCC” means theUniform Commercial Code (or any similar or equivalent legislation) as in effectin any applicable jurisdiction.

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

“Voting Stock” of any Person asof any date means the Capital Stock of such Person (for the purposes of thisdefinition, the “issuer”) that is at that time entitled (without regard to theoccurrence of any contingency) to vote in the election of the Person or Persons(whether directors, managers, trustees, or other Persons performing similarfunctions) having the power to direct or cause the direction of the managementand policies of the issuer.

1.2.   AccountingTerms. Except as otherwise expressly provided herein, allaccounting terms not otherwise defined herein shall have the meanings assignedto them in conformity with GAAP. Financialstatements and other information required to be delivered by Holdings toLenders pursuant to Section 5.1(a), 5.1(b) and 5.1(c) shall beprepared in accordance with GAAP as in effect at the time of such preparation(and delivered together with the reconciliation statements provided for in Section 5.1(e),if applicable). Notwithstanding the foregoing, calculations in connection withthe definitions, covenants and other provisions hereof shall utilize accountingprinciples and policies in conformity with those used to prepare the HistoricalFinancial Statements. In the event that any Accounting Change shall occur andsuch change results in a change in the method of calculation of financialcovenants, standards or terms in this Agreement, then Company andAdministrative Agent agree to enter into negotiations to amend such provisionsof this Agreement so as to equitably reflect such Accounting Change with thedesired result that the criteria for evaluating Company’s financial conditionshall be the same after such Accounting Change as if such Accounting Change hadnot been made. Until such time as such an amendment shall have been executedand delivered by Company and the

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Requisite Lenders, allfinancial covenants, standards and terms in this Agreement shall continue to becalculated or construed as if such Accounting Change had not occurred.

1.3.   Interpretation,etc. Any of the terms defined herein may, unless the contextotherwise requires, be used in the singular or the plural, depending on thereference. References herein to anySection, Appendix, Schedule or Exhibit shall be to a Section, an Appendix,a Schedule or an Exhibit, as the case may be, hereof unless otherwisespecifically provided. The use herein of the word “include” or “including”,when following any general statement, term or matter, shall not be construed tolimit such statement, term or matter to the specific items or matters set forthimmediately following such word or to similar items or matters, whether or notno limiting language (such as “without limitation” or “but not limited to” orwords of similar import) is used with reference thereto, but rather shall bedeemed to refer to all other items or matters that fall within the broadestpossible scope of such general statement, term or matter.

1.4.   Interrelationshipwith the Existing Credit Agreement.

(a)           This Agreement isintended to incorporate certain amendments to the provisions of the ExistingCredit Agreement and, except as expressly modified herein, (x) all of theterms and provisions of the Existing Credit Agreement apply for the periodprior to the Second Amendment Effective Date, including any determinations ofpayment dates, interest rates, compliance with covenants and other obligations,accuracy of representations and warranties, Events of Default or any amountthat may be payable to the Administrative Agent or the Lenders (or theirassignees or replacements hereunder), and (y) the obligations under theExisting Credit Agreement that became due and payable prior to the SecondAmendment Effective Date shall, from and after the Second Amendment EffectiveDate, continue to be owing and be subject to the terms of this Agreement. Allreferences in the Notes and the other Credit Documents to (i) the “CreditAgreement” shall be deemed to refer to this Agreement and (ii) the “Lenders”or a “Lender” or to the “Administrative Agent” shall mean such terms as definedin this Agreement. As to all periods occurring on or after the Second AmendmentEffective Date, all of the covenants set forth in the Existing Credit Agreementshall be of no further force and effect (with respect to such periods), itbeing understood that (x) all obligations of Holdings, Company and theirSubsidiaries under the Existing Credit Agreement shall be governed by thisAgreement from and after the Second Amendment Effective Date and (y) theterms, provisions and covenants contained in the Existing Credit Agreementshall continue to apply for all periods prior to the Second Amendment EffectiveDate, and the effectiveness of this Agreement shall not excuse or waive anyfailure to comply with any of the terms, provisions or covenants contained inthe Existing Credit Agreement for any period prior to the Second AmendmentEffective Date, except as otherwise provided in the Second Amendment.

(b)           Company, Holdings,the Agents and the Lenders acknowledge and agree that all principal, interest,fees, costs, reimbursable expenses and indemnification obligations

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accruing orarising under or in connection with the Existing Credit Agreement which remainunpaid and outstanding as of the Second Amendment Effective Date shall be andremain outstanding and payable as an obligation under this Agreement and theother Credit Documents.

SECTION 2.  LOANS AND LETTERS OF CREDIT

2.1.   Term Loans.

(a)   Loan Commitments. Subject to the termsand conditions hereof, each of the New Term Loan Lenders severally agrees,pursuant to the Second Amendment, to make on the Second Amendment EffectiveDate a New Term Loan to Company in an amount equal to its New Term LoanCommitment; provided that each Continuing Lender having a New Term LoanCommitment shall make New Term Loans on the Second Amendment Effective Date byexchanging its Existing Term Loans for New Term Loans in the mannercontemplated by this Section 2.1 and by the Second Amendment. If anyContinuing Lender’s New Term Loan Commitment is greater than the amount of itsExisting Term Loans, such Continuing Lender shall comply with Section 2.1(b)(ii).Company may make only one borrowing under the New Term Loan Commitments whichshall be made on the Second Amendment Effective Date. Any amount borrowed underthis Section 2.1(a) and subsequently repaid or prepaid may not bereborrowed. Subject to Sections 2.12, 2.13(a) and 2.14, all amounts owedhereunder with respect to the New Term Loans shall be paid in full no laterthan the Term Loan Maturity Date. Each Lender’s New Term Loan Commitment shallterminate immediately and without further action on the Second AmendmentEffective Date after giving effect to the funding of such Lender’s New TermLoan Commitment on such date.

(b)   Borrowing Mechanics for Term Loans.

(i)   Companyshall deliver to Administrative Agent a fully executed Funding Notice for theNew Term Loans no later than one (1) Business Day prior to the SecondAmendment Effective Date. Promptly upon receipt by Administrative Agent of suchFunding Notice, Administrative Agent shall notify each Lender of the proposedborrowing.

(ii)   Each Lenderwith a New Term Loan Commitment (other than a Continuing Lender that isexchanging its Existing Term Loans for New Term Loans in accordance with Section 2.1(a))shall make its New Term Loan available to Administrative Agent not later than12:00 p.m. (New York City time) on the Second Amendment Effective Date, bywire transfer of same day funds in Dollars, at the Principal Office designatedby Administra­tive Agent. Upon satisfaction or waiver of the conditionsprecedent specified in Section 3.3, Administrative Agent shall make the

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proceeds of the New Term Loans available to Company on theSecond Amendment Effective Date by causing an amount of same day funds inDollars equal to the proceeds of all such Term Loans received by AdministrativeAgent from Lenders to be credited to the account of Company at the PrincipalOffice designated by Administrative Agent or to such other account as may bedesignated in writing to Administrative Agent by Company.

(iii)   TheInterest Period (and the respective Adjusted Eurodollar Rate) in effect on theSecond Amendment Effective Date in respect of the Existing Term Loans that arebeing exchanged for New Term Loans on the Second Amendment Effective Date (the “Current Interest Period”) will continue to be in effect forsuch New Term Loans following the Second Amendment Effective Date and will endon the last day of the Current Interest Period, and for any New Term Loansfunded on the Second Amendment Effective Date the initial Interest Period willend on the last day of the Current Interest Period and the Adjusted EurodollarRate during such initial Interest Period will equal the Adjusted EurodollarRate applicable to the New Term Loans exchanged for Existing Term Loans duringthe Current Interest Period.

2.2.   Revolving Loans.

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

(b)   Borrowing Mechanics for Revolving Loans.

(i)   Exceptpursuant to Section 2.4(d) and Section 2.3(b)(iv), RevolvingLoans that are Base Rate Loans shall be made in an aggregate minimum amount of$1,000,000 and integral multiples of $500,000 in excess of that amount, andRevolving Loans that are Eurodollar Rate Loans shall be in an aggregate minimumamount of $1,000,000 and integral multiples of $500,000 in excess of thatamount.

(ii)   WheneverCompany desires that Lenders make Revolving Loans, Company shall deliver toAdministrative Agent a fully executed Funding Notice no later

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than 10:00 a.m. (New York City time) at least threeBusiness Days in advance of the proposed Credit Date in the case of aEurodollar Rate Loan, and at least one Business Day in advance of the proposedCredit Date in the case of a Revolving Loan that is a Base Rate Loan.

(iii)   Notice ofreceipt of each Funding Notice in respect of Revolving Loans, together with theamount of each Lender’s Pro Rata Share thereof, if any, together with theapplicable interest rate, shall be provided by Administrative Agent to eachapplicable Lender by telefacsimile with reasonable promptness, but (providedAdministrative Agent shall have received such notice by 10:00 a.m. (NewYork City time)) not later than 2:00 p.m. (New York City time) on the sameday as Administrative Agent’s receipt of such Notice from Company.

(iv)   Each Lendershall make the amount of its Revolving Loan available to Administrative Agentnot later than 2:00 p.m. (New York City time) on the applicable CreditDate by wire transfer of same day funds in Dollars, at the Principal Officedesignated by Administrative Agent. Except as provided herein, uponsatisfaction or waiver of the conditions precedent specified herein,Administrative Agent shall make the proceeds of such Revolving Loans availableto Company on the applicable Credit Date by causing an amount of same day fundsin Dollars equal to the proceeds of all such Revolving Loans received by AdministrativeAgent from Lenders to be credited to the account of Company at the PrincipalOffice designated by Administrative Agent or such other account as may bedesignated in writing to Administrative Agent by Company.

2.3.   Swing Line Loans.

(a)   Swing Line Loan Commitment. During theRevolving Commitment Period, subject to the terms and conditions hereof, SwingLine Lender hereby agrees to make Swing Line Loans to Company in the aggregateamount up to but not exceeding the Swing Line Sublimit; provided, thatafter giving effect to the making of any Swing Line Loan, in no event shall theTotal Utilization of Revolving Commitments exceed the Revolving Commitmentsthen in effect. Amounts borrowed pursuant to this Section 2.3 may berepaid and reborrowed during the Revolving Commitment Period. Swing Line Lender’sRevolving Commitment shall expire on the Revolving Commitment Termination Dateand all Swing Line Loans and all other amounts owed hereunder with respect tothe Swing Line Loans and the Revolving Commitments shall be paid in full nolater than such date.

(b)   Borrowing Mechanics for Swing Line Loans.

(i)   Swing LineLoans shall be made in an aggregate minimum amount of $500,000 and integralmultiples of $100,000 in excess of that amount.

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

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

(iv)   Withrespect to any Swing Line Loans which have not been voluntarily prepaid byCompany pursuant to Section 2.13, Swing Line Lender may at any time in itssole and absolute discretion, deliver to Administrative Agent (with a copy toCompany), no later than 11:00 a.m. (New York City time) at least oneBusiness Day in advance of the proposed Credit Date, a notice (which shall bedeemed to be a Funding Notice given by Company) requesting that each Lenderholding a Revolving Commitment make Revolving Loans that are Base Rate Loans toCompany on such Credit Date in an amount equal to the amount of such Swing LineLoans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given whichSwing Line Lender requests Lenders to prepay. Anything contained in thisAgreement to the contrary notwithstanding, (1) the proceeds of suchRevolving Loans made by the Lenders other than Swing Line Lender shall beimmediately delivered by Administrative Agent to Swing Line Lender (and not toCompany) and applied to repay a corresponding portion of the Refunded SwingLine Loans and (2) on the day such Revolving Loans are made, Swing LineLender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to bepaid with the proceeds of a Revolving Loan made by Swing Line Lender toCompany, and such portion of the Swing Line Loans deemed to be so paid shall nolonger be outstanding as Swing Line Loans and shall no longer be due under theSwing Line Note of Swing Line Lender but shall instead constitute part of SwingLine Lender’s outstanding Revolving Loans to Company and shall be due under theRevolving Loan Note issued by Company to Swing Line Lender. Company herebyauthorizes Administrative Agent and Swing Line Lender to charge Company’saccounts with Administrative Agent and Swing Line Lender (up to the amountavailable in each such account) in order to immediately pay Swing Line Lenderthe amount of the Refunded Swing Line Loans to the extent of the proceeds of suchRevolving Loans made by

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Lenders,including the Revolving Loans deemed to be made by Swing Line Lender, are notsufficient to repay in full the Refunded Swing Line Loans. If any portion ofany such amount paid (or deemed to be paid) to Swing Line Lender should berecovered by or on behalf of Company from Swing Line Lender in bankruptcy, byassignment for the benefit of creditors or otherwise, the loss of the amount sorecovered shall be ratably shared among all Lenders in the manner contemplatedby Section 2.17.

(v)   If for anyreason Revolving Loans are not made pursuant to Section 2.3(b)(iv) inan amount sufficient to repay any amounts owed to Swing Line Lender in respectof any outstanding Swing Line Loans on or before the third Business Day after demandfor payment thereof by Swing Line Lender, each Lender holding a RevolvingCommitment shall be deemed to, and hereby agrees to, have purchased aparticipation in such outstanding Swing Line Loans, and in an amount equal toits Pro Rata Share of the applicable unpaid amount together with accruedinterest thereon. Upon one Business Day’s notice from Swing Line Lender, eachLender holding a Revolving Commitment shall deliver to Swing Line Lender anamount equal to its respective participation in the applicable unpaid amount insame day funds at the Principal Office of Swing Line Lender. In order toevidence such participation each Lender holding a Revolving Commitment agreesto enter into a participation agreement at the request of Swing Line Lender in formand substance reasonably satisfactory to Swing Line Lender. In the event anyLender holding a Revolving Commitment fails to make available to Swing LineLender the amount of such Lender’s participation as provided in this paragraph,Swing Line Lender shall be entitled to recover such amount on demand from suchLender together with interest thereon for three Business Days at the ratecustomarily used by Swing Line Lender for the correction of errors among banksand thereafter at the Base Rate, as applicable.

(vi)  Notwithstanding anything contained herein to the contrary, (1) eachLender’s obligation to make Revolving Loans for the purpose of repaying anyRefunded Swing Line Loans pursuant to the second preceding paragraph and eachLender’s obligation to purchase a participation in any unpaid Swing Line Loanspursuant to the immediately preceding paragraph shall be absolute andunconditional and shall not be affected by any circumstance, including withoutlimitation (A) any set-off, counterclaim, recoupment, defense orother right which such Lender may have against Swing Line Lender, any CreditParty or any other Person for any reason whatsoever; (B) the occurrence orcontinuation of a Default or Event of Default; (C) any adverse change inthe business, operations, properties, assets, condition (financial orotherwise) or prospects of any Credit Party; (D) any breach of thisAgreement or any other Credit Document by any party thereto; or (E) anyother circumstance, happening or event whatsoever, whether or not similar toany of the foregoing; provided that such obligations of each Lender are

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subjectto the condition that Swing Line Lender believed in good faith that allconditions under Section 3.2 to the making of the applicable RefundedSwing Line Loans or other unpaid Swing Line Loans, were satisfied at the timesuch Refunded Swing Line Loans or unpaid Swing Line Loans were made, or thesatisfaction of any such condition not satisfied had been waived by theRequisite Lenders prior to or at the time such Refunded Swing Line Loans orother unpaid Swing Line Loans were made; and (2) Swing Line Lender shallnot be obligated to make any Swing Line Loans (A) if it has elected not todo so after the occurrence and during the continuation of a Default or Event ofDefault or (B) at a time when a Funding Default exists unless Swing LineLender has entered into arrangements satisfactory to it and Company toeliminate Swing Line Lender’s risk with respect to the Defaulting Lender’sparticipation in such Swing Ling Loan, including by cash collateralizing suchDefaulting Lender’s Pro Rata Share of the outstanding Swing Line Loans.

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

(a)   Letters of Credit. During theRevolving Commitment Period, subject to the terms and conditions hereof,Issuing Bank agrees to issue Letters of Credit for the account of Company inthe aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided,(i) each Letter of Credit shall be denominated in Dollars; (ii) thestated amount of each Letter of Credit shall not be less than $250,000 or suchlesser amount as is acceptable to Issuing Bank; (iii) after giving effectto such issuance, in no event shall the Total Utilization of Revolving Commit­mentsexceed the Revolving Commitments then in effect; (iv) after giving effectto such issuance, in no event shall the Letter of Credit Usage exceed theLetter of Credit Sublimit then in effect; (v) in no event shall anystandby Letter of Credit have an expiration date later than the earlier of (1) theRevolving Commitment Termination Date and (2) the date which is one yearfrom the date of issuance of such standby Letter of Credit; and (vi) in noevent shall any commercial Letter of Credit (x) have an expiration datelater than the earlier of (1) the Revolving Commitment Termination Dateand (2) the date which is 180 days from the date of issuance of suchcommercial Letter of Credit or (y) be issued if such commercial Letter ofCredit is otherwise unacceptable to Issuing Bank in its reasonable discretion. Subjectto the foregoing, Issuing Bank may agree that a standby Letter of Credit willautomatically be extended for one or more successive periods not to exceed oneyear each, unless Issuing Bank elects not to extend for any such additionalperiod; provided, Issuing Bank shall not extend any such Letter ofCredit if it has received written notice that an Event of Default has occurredand is continuing at the time Issuing Bank must elect to allow such extension; provided,further, in the event a Funding Default exists, Issuing Bank shall notbe required to issue any Letter of Credit unless Issuing Bank has entered intoarrangements satisfactory to it and Company to eliminate Issuing Bank’s riskwith respect to the participation in Letters of Credit of the Defaulting Lender,including by cash collateralizing such Defaulting Lender’s Pro Rata Share ofthe Letter of Credit Usage.

42

























(b)   Notice of Issuance. Whenever Companydesires the issuance of a Letter of Credit, it shall deliver to AdministrativeAgent an Issuance Notice no later than 12:00 p.m. (New York City time) atleast three Business Days (in the case of standby letters of credit) or fiveBusiness Days (in the case of commercial letters of credit), or in each casesuch shorter period as may be agreed to by Issuing Bank in any particularinstance, in advance of the proposed date of issuance. Upon satisfaction orwaiver of the conditions set forth in Section 3.2, Issuing Bank shallissue the requested Letter of Credit only in accordance with Issuing Bank’sstandard operating procedures. Upon the issuance of any Letter of Credit oramendment or modification to a Letter of Credit, Issuing Bank shall promptlynotify each Lender of such issuance, which notice shall be accompanied by acopy of such Letter of Credit or amendment or modification to a Letter ofCredit and the amount of such Lender’s respective participation in such Letterof Credit pursuant to Section 2.4(e).

(c)   Responsibility of Issuing Bank WithRespect to Requests for Drawings and Payments. In determining whether tohonor any drawing under any Letter of Credit by the beneficiary thereof,Issuing Bank shall be responsible only to examine the documents delivered undersuch Letter of Credit with reasonable care so as to ascertain whether theyappear on their face to be in accordance with the terms and conditions of suchLetter of Credit. As between Company and Issuing Bank, Company assumes allrisks of the acts and omissions of, or misuse of the Letters of Credit issuedby Issuing Bank, by the respective beneficiaries of such Letters of Credit. Infurtherance and not in limitation of the foregoing, Issuing Bank shall not beresponsible for: (i) the form, validity, sufficiency, accuracy,genuineness or legal effect of any document submitted by any party inconnection with the application for and issuance of any such Letter of Credit,even if it should in fact prove to be in any or all respects invalid,insufficient, inaccurate, fraudulent or forged; (ii) the validity orsufficiency of any instrument transferring or assigning or purporting totransfer or assign any such Letter of Credit or the rights or benefitsthereunder or proceeds thereof, in whole or in part, which may prove to beinvalid or ineffective for any reason; (iii) failure of the beneficiary ofany such Letter of Credit to comply fully (so long as such beneficiary hascomplied substantially) with any conditions required in order to draw upon suchLetter of Credit; (iv) errors, omissions, interruptions or delays intransmission or delivery of any messages, by mail, cable, telegraph, telex orotherwise, whether or not they be in cipher; (v) errors in interpretationof technical terms; (vi) any loss or delay in the transmission orotherwise of any document required in order to make a drawing under any suchLetter of Credit or of the proceeds thereof; (vii) the misapplication bythe beneficiary of any such Letter of Credit of the proceeds of any drawingunder such Letter of Credit; or (viii) any consequences arising fromcauses beyond the control of Issuing Bank, including any Governmental Acts;none of the above shall affect or impair, or prevent the vesting of, any ofIssuing Bank’s rights or powers hereunder. Without limiting the foregoing andin furtherance thereof, any action taken or omitted by Issuing Bank under or inconnection with the Letters of Credit or any documents and certificatesdelivered thereunder, if taken or omitted in good faith, shall not give rise toany

43



liability on the part of Issuing Bankto Company. Notwithstanding anything to the contrary contained in this Section 2.4(c),Company shall retain any and all rights it may have against Issuing Bank forany liability arising solely out of the gross negligence, willful misconduct orbad faith of Issuing Bank.

(d)   Reimbursement by Company of Amounts Drawnor Paid Under Letters of Credit. In the event Issuing Bank has determinedto honor a drawing under a Letter of Credit, it shall immediately notifyCompany and Administrative Agent, and Company shall reimburse Issuing Bank onor before the Business Day immediately following the date on which such drawingis honored (the “Reimbursement Date”) in an amount in Dollars and in same day funds equalto the amount of such honored drawing; provided, anything containedherein to the contrary notwithstanding, (i) unless Company shall havenotified Administrative Agent and Issuing Bank prior to 10:00 a.m. (NewYork City time) on the date such drawing is honored that Company intends toreimburse Issuing Bank for the amount of such honored drawing with funds otherthan the proceeds of Revolving Loans, Company shall be deemed to have given atimely Funding Notice to Administrative Agent requesting Lenders to makeRevolving Loans that are Base Rate Loans on the Reimbursement Date in an amountin Dollars equal to the amount of such honored drawing, and (ii) subjectto satisfaction or waiver of the conditions specified in Section 3.2,Lenders shall, on the Reimbursement Date, make Revolving Loans that are BaseRate Loans in the amount of such honored drawing, the proceeds of which shallbe applied directly by Administrative Agent to reimburse Issuing Bank for theamount of such honored drawing; and provided further, if for anyreason proceeds of Revolving Loans are not received by Issuing Bank on theReimbursement Date in an amount equal to the amount of such honored drawing,Company shall reimburse Issuing Bank, on demand, in an amount in same day fundsequal to the excess of the amount of such honored drawing over the aggregateamount of such Revolving Loans, if any, which are so received. Nothing in this Section 2.4(d) shallbe deemed to relieve any Lender from its obligation to make Revolving Loans onthe terms and conditions set forth herein, and Company shall retain any and allrights it may have against any Lender resulting from the failure of such Lenderto make such Revolving Loans under this Section 2.4(d).

(e)   Lenders’ Purchase of Participations inLetters of Credit. Immediately upon the issuance of each Letter of Credit,each Lender having a Revolving Commitment shall be deemed to have purchased,and hereby agrees to irrevocably purchase, from Issuing Bank a participation insuch Letter of Credit and any drawings honored thereunder in an amount equal tosuch Lender’s Pro Rata Share (with respect to the Revolving Commitments) of themaximum amount which is or at any time may become available to be drawn thereunder.In the event that Company shall fail for any reason to reimburse Issuing Bankas provided in Section 2.4(d), Issuing Bank shall promptly notify eachLender of the unreimbursed amount of such honored drawing and of such Lender’srespective participation therein based on such Lender’s Pro Rata

44



Share of the Revolving Commitments. EachLender shall make available to Issuing Bank an amount equal to its respectiveparticipation, in Dollars and in same day funds, at the office of Issuing Bankspecified in such notice, not later than 12:00 p.m. (New York City time)on the first business day (under the laws of the jurisdiction in which suchoffice of Issuing Bank is located) after the date notified by Issuing Bank. Inthe event that any Lender fails to make available to Issuing Bank on suchbusiness day the amount of such Lender’s participation in such Letter of Creditas provided in this Section 2.4(e), Issuing Bank shall be entitled torecover such amount on demand from such Lender together with interest thereonfor three Business Days at the rate customarily used by Issuing Bank for thecorrection of errors among banks and thereafter at the Base Rate. Nothing inthis Section 2.4(e) shall be deemed to prejudice the right of anyLender to recover from Issuing Bank any amounts made available by such Lenderto Issuing Bank pursuant to this Section in the event that it isdetermined that the payment with respect to a Letter of Credit in respect ofwhich payment was made by such Lender constituted gross negligence, willfulmisconduct or bad faith on the part of Issuing Bank. In the event Issuing Bankshall have been reimbursed by other Lenders pursuant to this Section 2.4(e) forall or any portion of any drawing honored by Issuing Bank under a Letter ofCredit, such Issuing Bank shall distribute to each Lender which has paid allamounts payable by it under this Section 2.4(e) with respect to suchhonored drawing such Lender’s Pro Rata Share of all payments subsequentlyreceived by Issuing Bank from Company in reimbursement of such honored drawingwhen such payments are received. Any such distribution shall be made to aLender at its primary address set forth below its name on Appendix B or at suchother address as such Lender may request.

(f)   Obligations Absolute. Theobligation of Company to reimburse Issuing Bank for drawings honoredunder the Letters of Credit issued by it and to repay any Revolving Loans madeby Lenders pursuant to Section 2.4(d) and the obligations of Lendersunder Section 2.4(e) shall be unconditional and irrevocable and shallbe paid strictly in accordance with the terms hereof under all circumstancesincluding any of the following circumstances: (i) any lack of validity orenforceability of any Letter of Credit; (ii) the existence of any claim,set-off, defense or other right which Company or any Lender may have atany time against a beneficiary or any transferee of any Letter of Credit (orany Persons for whom any such transferee may be acting), Issuing Bank, Lenderor any other Person or, in the case of a Lender, against Company, whether inconnection herewith, the transactions contemplated herein or any unrelatedtransaction (including any underlying transaction between Company or one of itsSubsidiaries and the beneficiary for which any Letter of Credit was procured); (iii) anydraft or other document presented under any Letter of Credit proving to beforged, fraudulent, invalid or insufficient in any respect or any statementtherein being untrue or inaccurate in any respect; (iv) payment by IssuingBank under any Letter of Credit against presentation of a draft or otherdocument which does not substantially comply with the terms of such Letter ofCredit; (v) any adverse change in the business, operations, properties,assets, condition (financial or otherwise) or prospects of Holdings or any ofits Subsidiaries; (vi) any breach hereof or of any other Credit Documentby

45



any party thereto; (vii) anyother circumstance or happening whatsoever, whether or not similar to any ofthe foregoing; or (viii) the fact that an Event of Default or a Defaultshall have occurred and be continuing; provided, in each case, thatpayment by Issuing Bank under the applicable Letter of Credit shall not haveconstituted gross negligence, willful misconduct or bad faith of Issuing Bankunder the circumstances in question.

(g)   Indemnification. Without duplicationof any obligation of Company under Section 10.2 or 10.3, in addition toamounts payable as provided herein, Company hereby agrees to protect,indemnify, pay and save harmless Issuing Bank from and against any and allclaims, demands, liabilities, damages, losses, costs, charges and expenses(including reasonable fees, expenses and disbursements of counsel and allocatedcosts of internal counsel) which Issuing Bank may incur or be subject to as aconsequence, direct or indirect, of (i) the issuance of any Letter ofCredit by Issuing Bank, other than as a result of (1) the grossnegligence, willful misconduct or bad faith of Issuing Bank or (2) thewrongful dishonor by Issuing Bank of a proper demand for payment made under anyLetter of Credit issued by it, or (ii) the failure of Issuing Bank tohonor a drawing under any such Letter of Credit as a result of any GovernmentalAct.

2.5.   Pro Rata Shares; Availability of Funds.

(a)   Pro Rata Shares. All Loans shall bemade, and all participations purchased, by Lenders simultaneously andproportionately to their respective Pro Rata Shares, it being understood thatno Lender shall be responsible for any default by any other Lender in suchother Lender’s obligation to make a Loan requested hereunder or purchase aparticipation required hereby nor shall any Term Loan Commitment or anyRevolving Commitment of any Lender be increased or decreased as a result of adefault by any other Lender in such other Lender’s obligation to make a Loanrequested hereunder or purchase a participation required hereby.

(b)   Availability of Funds. UnlessAdministrative Agent shall have been notified by any Lender prior to theapplicable Credit Date that such Lender does not intend to make available toAdministrative Agent the amount of such Lender’s Loan requested on such CreditDate, Administrative Agent may assume that such Lender has made such amountavailable to Administra­tive Agent on such Credit Date and Administrative Agentmay, in its sole discretion, but shall not be obligated to, make available toCompany a corresponding amount on such Credit Date. If such correspondingamount is not in fact made available to Administrative Agent by such Lender,Administrative Agent shall be entitled to recover such corresponding amount ondemand from such Lender together with interest thereon, for each day from suchCredit Date until the date such amount is paid to Administrative Agent, at thecustomary rate set by Administrative Agent for the correction of errors amongbanks for three Business Days and thereafter at the Base Rate. If such Lenderdoes not pay such corresponding amount forthwith upon Administrative Agent’sdemand therefor, Administrative Agent shall promptly notify

46



Company and Company shall immediatelypay such corresponding amount to Administrative Agent together with interestthereon, for each day from such Credit Date until the date such amount is paidto Administrative Agent, at the rate payable hereunder for Base Rate Loans forsuch Class of Loans. Nothing in this Section 2.5(b) shall bedeemed to relieve any Lender from its obligation to fulfill its Term LoanCommitments and Revolving Commitments hereunder or to prejudice any rights thatCompany may have against any Lender as a result of any default by such Lenderhereunder.

2.6.   Use of Proceeds. The proceeds of the New Term Loansmade on the Second Amendment Effective Date shall be applied by Company torepay in full the outstanding principal amount of, and accrued interest on, allExisting Term Loans of Existing Term Loan Lenders as of the Second AmendmentEffective Date. The proceeds of the Revolving Loans, Swing Line Loans andLetters of Credit made after the Closing Date shall be applied by Company forworking capital and general corporate purposes of Holdings and its Subsidiaries,including Permitted Acquisitions. No portion of the proceeds of any CreditExtension shall be used in any manner that causes or might cause such CreditExtension or the application of such proceeds to violate Regulation T,Regulation U or Regulation X of the Board of Governors of the FederalReserve System or any other regulation thereof or to violate the Exchange Act.

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

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

(b)   Register. Administrative Agent (or itsagent or sub-agent appointed by it) shall maintain at the Principal Office aregister for the recordation of the names and addresses of Lenders and theRevolving Commitments and Loans of each Lender from time to time (the “Register”). The Register, as in effect at theclose of business on the preceding Business Day, shall be available for inspectionby Company or any Lender at any reasonable time and from time to time uponreasonable prior notice. Administrative Agent shall record, or shall cause tobe recorded, in the Register the Revolving Commitments and the Loans inaccordance with the provisions of Section 10.6, and each repayment orprepayment in respect of the principal amount of the Loans, and any suchrecordation shall be conclusive and binding on Company and each Lender, absentmanifest error; provided, failure to make any such recordation, or anyerror in such recordation, shall not affect any Lender’s Revolving Commitmentsor Company’s

47



Obligations in respect of any Loan. Companyhereby designates GSCP to serve as Company’s agent solely for purposes ofmaintaining the Register as provided in this Section 2.7, and Companyhereby agrees that, to the extent GSCP serves in such capacity, GSCP and itsofficers, directors, employees, agents, sub-agents and affiliates shallconstitute “Indemnitees.”

(c)   Notes. If so requested by any Lenderby written notice to Company (with a copy to Administrative Agent) at least twoBusiness Days prior to the Second Amendment Effective Date, or at any timethereafter, Company shall execute and deliver to such Lender (and/or, ifapplicable and if so specified in such notice, to any Person who is an assigneeof such Lender pursuant to Section 10.6) on the Second Amendment EffectiveDate (or, if such notice is delivered after the Second Amendment EffectiveDate, promptly after Company’s receipt of such notice) a Note or Notes toevidence such Lender’s New Term Loan, Revolving Loan or Swing Line Loan, as thecase may be.

2.8.   Interest on Loans.

(a)   Except as otherwise set forth herein, each Class ofLoan shall bear interest on the unpaid principal amount thereof from the datemade through repayment (whether by acceleration or otherwise) thereof asfollows:

(i)   in the caseof Revolving Loans:

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

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

(ii)   in the caseof Swing Line Loans, at the Base Rate plus the Applicable Margin; and

(iii)   in thecase of Term Loans:

(1) if a Base Rate Loan, at theBase Rate plus 1.25% per annum (provided however thatat such time on or after March 31, 2007 that the Leverage Ratio is lessthan 3.5.0:1.0, such Loans shall thereafter bear interest at the Base Rate plus1.00% per annum); or

(2) if a Eurodollar Rate Loan,at the Adjusted Eurodollar Rate plus 2.25% per annum (provided

48



however that at such time onor after March 31, 2007 that the Leverage Ratio is less than 3.5:1.0, suchLoans shall thereafter bear interest at the Adjusted Eurodollar Rate plus 2.00%per annum).

(b)   The basis for determining the rate of interestwith respect to any Loan (except a Swing Line Loan which can be made andmaintained as Base Rate Loans only), and the Interest Period with respect toany Eurodollar Rate Loan, shall be selected by Company and notified toAdministrative Agent and Lenders pursuant to the applicable Funding Notice orConver­sion/Continuation Notice, as the case may be. If on any day a Loan isoutstanding with respect to which a Funding Notice or Conversion/ContinuationNotice has not been delivered to Administrative Agent in accordance with theterms hereof specifying the applicable basis for determining the rate ofinterest, then for that day such Loan shall be a Base Rate Loan.

(c)   In connection with Eurodollar Rate Loansthere shall be no more than ten (10) Interest Periods outstanding at anytime. In the event Company fails to specify between a Base Rate Loan or aEurodollar Rate Loan in the applicable Funding Notice orConversion/Continuation Notice, such Loan (if outstanding as a Eurodollar RateLoan) will be automatically converted into a Base Rate Loan on the last day ofthe then-current Interest Period for such Loan (or if outstanding as aBase Rate Loan will remain as, or (if not then outstanding) will be made as, aBase Rate Loan). In the event Company fails to specify an Interest Period forany Eurodollar Rate Loan in the applicable Funding Notice orConversion/Continuation Notice, Company shall be deemed to have selected anInterest Period of one month. As soon as practicable after 10:00 a.m. (NewYork City time) on each Interest Rate Determination Date, Administrative Agentshall determine (which determination shall, absent manifest error, be final,conclusive and binding upon all parties) the interest rate that shall apply tothe Eurodollar Rate Loans for which an interest rate is then being determinedfor the applicable Interest Period and shall promptly give notice thereof (inwriting or by telephone confirmed in writing) to Company and each Lender.

(d)   Interest payable pursuant to Section 2.8(a) shallbe computed (i) in the case of Base Rate Loans on the basis of a 365-dayor 366-day year, as the case may be, and (ii) in the case of EurodollarRate Loans, on the basis of a 360-day year, in each case for the actual numberof days elapsed in the period during which it accrues. In computing interest onany Loan, the date of the making of such Loan or the first day of an InterestPeriod applicable to such Loan or, with respect to a Term Loan, the lastInterest Payment Date with respect to such Term Loan or, with respect to a BaseRate Loan being converted from a Eurodollar Rate Loan, the date of conversionof such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shallbe included, and the date of payment of such Loan or the expiration date of anInterest Period applicable to such Loan or, with respect to a Base Rate Loanbeing converted to a Eurodollar Rate Loan, the date of conversion of such BaseRate Loan to such Eurodollar Rate Loan, as the

49



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

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

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

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

50



2.9.   Conversion/Continuation.

(a)   Subject to Section 2.18 and so long asno Default or Event of Default shall have occurred and then be continuing,Company shall have the option:

(i)   to convertat any time all or any part of any Term Loan or Revolving Loan equal to$1,000,000 and integral multiples of $500,000 in excess of that amount from oneType of Loan to another Type of Loan; provided, a Eurodollar Rate Loanmay only be converted on the expiration of the Interest Period applicable tosuch Eurodollar Rate Loan unless Company shall pay all amounts due under Section 2.18in connection with any such conversion; or

(ii)   upon theexpiration of any Interest Period applicable to any Eurodollar Rate Loan, tocontinue all or any portion of such Loan equal to $1,000,000 and integralmultiples of $500,000 in excess of that amount as a Eurodollar Rate Loan.

(b)   Company shall deliver aConversion/Continuation Notice to Administra­tive Agent no later than 10:00 a.m.(New York City time) at least one Business Day in advance of the proposedconversion date (in the case of a conversion to a Base Rate Loan) and at leastthree Business Days in advance of the proposed conversion/continuation date (inthe case of a conversion to, or a continuation of, a Eurodollar Rate Loan). Exceptas otherwise provided herein, a Conversion/Continuation Notice for conversionto, or continuation of, any Eurodollar Rate Loans (or telephonic notice in lieuthereof) shall be irrevocable on and after the related Interest RateDetermination Date, and Company shall be bound to effect a conversion orcontinuation in accordance therewith.

2.10.   Default Interest. Uponthe occurrence and during the continuance of an Event of Default, the principalamount of all Loans outstanding and, to the extent permitted by applicable law, anyinterest payments on the Loans or any fees or other amounts owed hereunder,shall thereafter bear interest (including post-petition interest in anyproceeding under the Bankruptcy Code or other applicable bankruptcy laws)payable on demand at a rate that is 2% per annum in excess of the interest rateotherwise payable hereunder with respect to the applicable Loans (or, in thecase of any such fees and other amounts, at a rate which is 2% per annum inexcess of the interest rate otherwise payable hereunder for Base Rate Loans); provided,in the case of Eurodollar Rate Loans, upon the expiration of the InterestPeriod in effect at the time any such increase in interest rate is effectivesuch Eurodollar Rate Loans shall thereupon become Base Rate Loans and shallthereafter bear interest payable upon demand at a rate which is 2% per annum inexcess of the interest rate otherwise payable hereunder for Base Rate Loans. Paymentor acceptance of the increased rates of interest provided for in this Section 2.10is not a permitted alternative to timely payment and shall not constitute awaiver of any Event of Default or otherwise prejudice or limit any rights orremedies of Administrative Agent or any Lender.

51



2.11.   Fees.

(a)   Company agrees to pay to Lenders havingRevolving Exposure:

(i)   commitmentfees equal to (1) the average of the daily difference between (a) theRevolving Commitments, and (b) the Total Utilization of RevolvingCommitments, times (2) the Applicable Revolving Commitment Fee Percentage;and

(ii)   letter ofcredit fees equal to (1) the Applicable Margin for Revolving Loans thatare Eurodollar Rate Loans, times (2) the average aggregate daily maximumamount available to be drawn under all such Letters of Credit (regardless ofwhether any conditions for drawing could then be met and determined as of theclose of business on any date of determination).

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

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

(i)   a frontingfee equal to 0.125%, per annum, times the average aggregate daily maximumamount available to be drawn under all Letters of Credit (determined as of theclose of business on any date of determination); and

(ii)   suchdocumentary and processing charges for any issuance, amendment, transfer orpayment of a Letter of Credit as are in accordance with Issuing Bank’s standardschedule for such charges provided to the Company and as in effect at the timeof such issuance, amendment, transfer or payment, as the case may be.

(c)   All fees referred to in Section 2.11(a) and2.11(b)(i) shall be calculated on the basis of a 360-day year andthe actual number of days elapsed and shall be payable quarterly in arrears on April 1,July 1, October 1 and January 1 of each year during theRevolving Commitment Period, commencing on the first such date to occur afterthe Closing Date, and on the Revolving Commitment Termination Date.

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

2.12.   Scheduled Payments.The principal amounts of the New Term Loans shall be repaid in consecutivequarterly installments (each, an “Installment”)in the aggregate amounts

52



set forth below on thedates set forth below (each, an “InstallmentDate”), commencing July 1, 2006:

Installment Date

 

 

 

New Term Loan Installments

 

July 1, 2006

 

$

862,500

 

October 1, 2006

 

$

862,500

 

January 1, 2007

 

$

862,500

 

April 1, 2007

 

$

862,500

 

July 1, 2007

 

$

862,500

 

October 1, 2007

 

$

862,500

 

January 1, 2008

 

$

862,500

 

April 1, 2008

 

$

862,500

 

July 1, 2008

 

$

862,500

 

October 1, 2008

 

$

862,500

 

January 1, 2009

 

$

862,500

 

April 1, 2009

 

$

862,500

 

July 1, 2009

 

$

862,500

 

October 1, 2009

 

$

862,500

 

January 1, 2010

 

$

862,500

 

April 1, 2010

 

$

862,500

 

July 1, 2010

 

$

81,937,500

 

October 1, 2010

 

$

81,937,500

 

January 1, 2011

 

$

81,937,500

 

Term Loan Maturity Date

 

$

81,937,500

 

 

53



Notwithstandingthe foregoing, (x) such Installments shall be reduced in connection withany voluntary or mandatory prepayments of the New Term Loans in accordance withSections 2.13, 2.14 and 2.15, as applicable; and (y) the New TermLoans, together with all other amounts owed hereunder with respect thereto,shall, in any event, be paid in full no later than the Term Loan Maturity Date.

2.13.   VoluntaryPrepayments/Commitment Reductions/Call Protection.

(a)   Voluntary Prepayments.

(i)   Any time andfrom time to time:

(1)        with respect to Base Rate Loans, Company may prepay any suchLoans without penalty or premium on any Business Day in whole or in part, in anaggregate minimum amount of $1,000,000 and integral multiples of $500,000 inexcess of that amount;

(2)        with respect to Eurodollar Rate Loans, subject to Section 2.18(c),Company may prepay any such Loans without penalty or premium on any BusinessDay in whole or in part in an aggregate minimum amount of $1,000,000 andintegral multiples of $500,000 in excess of that amount; and

(3)        with respect to Swing Line Loans, Company may prepay any suchLoans without penalty or premium on any Business Day in whole or in part in anaggregate minimum amount of $500,000, and in integral multiples of $100,000 inexcess of that amount.

(ii)   All suchprepayments shall be made:

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

54



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

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

in each case given to Administrative Agent or SwingLine Lender, as the case may be, by 12:00 noon (New York City time) on the daterequired and, if given by telephone, promptly confirmed in writing toAdministrative Agent (and Administrative Agent will promptly transmit suchtelephonic or original notice for Term Loans or Revolving Loans, as the casemay be, by telefacsimile or telephone to each Lender) or Swing Line Lender, asthe case may be. Upon the giving of any such notice, the principal amount ofthe Loans specified in such notice shall become due and payable on theprepayment date specified therein. Any such voluntary prepayment shall beapplied as specified in Section 2.15(a).

(b)   Voluntary Commitment Reductions.

(i)   Company may,upon not less than three Business Days’ prior written or telephonic noticeconfirmed in writing to Administrative Agent (which original written ortelephonic notice Administrative Agent will promptly transmit by telefacsimileor telephone to each applicable Lender), at any time and from time to timeterminate in whole or permanently reduce in part, without premium or penalty,the Revolving Commitments in an amount up to the amount by which the RevolvingCommitments exceed the Total Utilization of Revolving Commitments at the timeof such proposed termination or reduction; provided, any such partialreduction of the Revolving Commitments shall be in an aggregate minimum amountof $1,000,000 and integral multiples of $500,000 in excess of that amount.

(ii)   Company’snotice to Administrative Agent shall designate the date (which shall be aBusiness Day) of such termination or reduction and the amount of any partialreduction, and such termination or reduction of the Revolving Commitments shallbe effective on the date specified in Company’s notice and shall reduce theRevolving  Commitment of each Lenderproportionately to its Pro Rata Share thereof.

(c)   New Term Loan Call Protection. In theevent that, prior to the first anniversary of the Second Amendment EffectiveDate, any New Term Loan Lender receives a Repricing Prepayment (as definedbelow), then, at the time thereof, Company shall pay to such New Term LoanLender a prepayment premium equal to 1.0% of the amount of such RepricingPrepayment. As used herein, with respect to any New Term Loan Lender, a “Repricing Prepayment” is the amount of principal of theNew Term Loans of such New Term Loan

55



Lender that is either (a) prepaid byCompany substantially concurrently with the incurrence by Company or any of itsSubsidiaries of new replacement term loans that have interest rate marginslower than the percentages then in effect under Section 2.8(a)(iii) forthe New Term Loans so prepaid or (b) received by such New Term LoanLender as a result of the mandatory assignment of such New Term Loans in thecircumstances described in Section 2.23 following the failure of such NewTerm Loan Lender to consent to an amendment of this Agreement (other than theSecond Amendment) that would have the effect of reducing the interest marginswith respect to such New Term Loans.

2.14.   MandatoryPrepayments/Commitment Reductions.

(a)   Asset Sales. Except as provided below,no later than the second Business Day following the date of receipt by Holdingsor any of its Subsidiaries of any Net Asset Sale Proceeds, Company shall prepaythe Loans and/or the Revolving Commitments shall be permanently reduced as setforth in Section 2.15(b) in an aggregate amount equal to all NetAsset Sale Proceeds. So long as no Default or Event of Default shall haveoccurred and be continuing, and to the extent that aggregate Net Asset SaleProceeds from the Closing Date through the applicable date of determination donot exceed $5,000,000, Company shall have the option, directly or through oneor more of its Subsidiaries, to invest Net Asset Sale Proceeds within onehundred eighty (180) days after receipt thereof in other assets useful in thebusiness of Company and its Subsidiaries; provided, however, thatas to any Net Asset Sale Proceeds that have not been so invested, or applied toprepay Loans within one hundred eighty (180) days after such Net Asset SaleProceeds were received, Company or one of its Subsidiaries shall either (i) prepaythe Loans and/or permanently reduce the Revolving Commitments with such NetAsset Sale Proceeds or (ii) have entered into a binding commitment toinvest such Net Asset Sale Proceeds in such assets within 360 days afterreceipt thereof.  Pending any suchinvestment or prepayments, all such Net Asset Sale Proceeds shall be applied toprepay Revolving Loans to the extent outstanding (without a reduction inRevolving Commitments). Any Net Asset Sale Proceeds which have not beeninvested or applied to prepay Loans as required above within 180 or, if abinding commitment to invest such Net Asset Sale Proceeds was entered into asprovided above, 360 days after receipt shall be applied to prepay Loans at suchtime.

(b)   Insurance/Condemnation Proceeds. Exceptas provided below, no later than the second Business Day following the date ofreceipt by Holdings or any of its Subsidiaries, or Administrative Agent as losspayee, of any Net Insurance/Condemnation Proceeds, Company shall prepay theLoans and/or the Revolving Commitments shall be permanently reduced as setforth in Section 2.15(b) in an aggregate amount equal to such NetInsurance/Condemnation Proceeds. So long as no Default or Event of Defaultshall have occurred and be continuing, and to the extent that aggregate NetInsurance/Condemnation Proceeds from the Closing Date through the applicabledate of determination do not exceed $5,000,000, Company shall have the option,directly or through one or more of its Subsidiaries to invest such Net

56



Insurance/Condemnation Proceedswithin one hundred eighty (180) days of receipt thereof in other assets usefulin the business of Holdings and its Subsidiaries, which investment may includethe repair, restoration or replacement of the applicable assets thereof; provided,however, that as to any Net Insurance/Condemnation Proceeds that havenot been so invested, or applied to prepay Loans within one hundred eighty(180) days after such Net Insurance/Condemnation Proceeds were received,Company or one of its Subsidiaries shall either (i) prepay the Loans and/orpermanently reduce the Revolving Commitments with such NetInsurance/Condemnation Proceeds or (ii) have entered into a bindingcommitment to invest such Net Insurance/Condemnation Proceeds in such assetswithin 360 days after receipt thereof.  Pending any such investment or prepayments,all such Net Insurance/Condemnation Proceeds shall be applied to prepayRevolving Loans to the extent outstanding (without a reduction in RevolvingCommitments). Any Net Insurance/Condemnation Proceeds which have not beeninvested or applied to prepay Loans as required above within 180 or, if abinding commitment to invest such Net Insurance/Condemnation Proceeds wasentered into as provided above, 360 days after receipt shall be applied toprepay Loans at such time.

(c)  Issuance of Equity Securities. Nolater than the second Business Day following the receipt by Holdings of anyCash proceeds from a capital contribution to, or the issuance of any CapitalStock of, Holdings or any of its Subsidiaries (other than pursuant to anyemployee stock or stock option compensation plan), Company shall prepay theLoans and/or the Revolving Commitments shall be permanently reduced as setforth in Section 2.15(b) in an aggregate amount equal to 50% of suchproceeds, net of underwriting discounts and commissions and other reasonablecosts and expenses associated therewith, including reasonable legal fees andexpenses; provided, during any period in which the Leverage Ratio(determined for any such period by reference to the most recent ComplianceCertificate delivered pursuant to Section 5.1(d) calculating theLeverage Ratio) shall be 5.00:1.00 or less, Company shall only be required tomake the prepayments and/or reductions otherwise required hereby in an amountequal to 25% of such net proceeds.

(d)   Issuance of Debt. No later than thesecond Business Day following the receipt by Holdings or any of itsSubsidiaries of any Cash proceeds from the incurrence of any Indebtedness ofHoldings or any of its Subsidiaries (other than with respect to anyIndebtedness permitted to be incurred pursuant to Section 6.1), Companyshall prepay the Loans and/or the Revolving Commitments shall be permanentlyreduced as set forth in Section 2.15(b) in an aggregate amount equalto 100% of such proceeds, net of underwriting discounts and commissions andother reasonable costs and expenses associated therewith, including reasonablelegal fees and expenses.

(e)   Consolidated Excess Cash Flow. In theevent that there shall be Consolidated Excess Cash Flow for any Fiscal Year(commencing with the Fiscal Year ending in 2007, it being acknowledged that noprepayment from Consolidated Excess Cash Flow will be

57



required for the Fiscal Year endingin 2006), Company shall, no later than ninety days after the end of such FiscalYear, prepay the Loans and/or the Revolving Commitments shall be permanentlyreduced as set forth in Section 2.15(b) in an aggregate amount equalto 75% of such Consolidated Excess Cash Flow; provided, (x) duringany period in which the Leverage Ratio (determined for any such period byreference to the most recent Compliance Certificate delivered pursuant to Section 5.1(d) calculatingthe Leverage Ratio) shall be less than 5.00:1.00 and greater than or equal to3.25:1.00, Company shall only be required to make the prepayments and/orreductions otherwise required hereby in an amount equal to 50% of suchConsolidated Excess Cash Flow and (y) during any period in which theLeverage Ratio (determined for any such period by reference to the most recentCompliance Certificate delivered pursuant to Section 5.1(d) calculatingthe Leverage Ratio) shall be less than 3.25:1.00, Company shall only berequired to make the prepayments and/or reductions otherwise required hereby inan amount equal to 25% of such Consolidated Excess Cash Flow.

(f)   Revolving Loans and Swing Loans. Companyshall from time to time prepay first,the Swing Line Loans without reduction of Commitments, and second, the Revolving Loans withoutreduction of Commitments to the extent necessary so that the Total Utilizationof Revolving Commitments shall not at any time exceed the Revolving Commitmentsthen in effect.

(g)   Prepayment Certificate. Concurrentlywith any prepayment of the Loans and/or reduction of the Revolving Commitmentspursuant to Sections 2.14(a) through 2.14(e), Company shall deliver toAdministrative Agent a certificate of an Authorized Officer demonstrating thecalculation of the amount of the applicable net proceeds or Consolidated ExcessCash Flow, as the case may be. In the event that Company shall subsequentlydetermine that the actual amount received exceeded the amount set forth in suchcertificate, Company shall concurrently therewith deliver to AdministrativeAgent a certificate of an Authorized Officer demonstrating the derivation ofsuch excess, and, if required by this Section 2.14, shall promptly make anadditional prepayment of the Loans and/or the Revolving Commitments shall bepermanently reduced in an amount equal to such excess.

2.15.   Application ofPrepayments/Reductions.

(a)   Application of Voluntary Prepayments byType of Loans. Any prepayment of any Loan pursuant to Section 2.13(a) shallbe applied as specified by Company in the applicable notice of prepayment; provided,in the event Company fails to specify the Loans to which any such prepaymentshall be applied, such prepayment shall be applied as follows:

first, to repayoutstanding Swing Line Loans to the full extent thereof without reduction ofCommitments;

58

































second, to repayoutstanding Revolving Loans to the full extent thereof without reduction ofCommitments; and

third, to prepaythe Term Loans to the full extent thereof.

Any prepayment of any Term Loans pursuant to Section 2.13(a) shallbe further applied, at the Company’s option, either (i) first, to such scheduled prepayments with respect thereto due on theInstallment Dates occurring within the 12 months following such prepaymentand, second, on a pro rata basis to reduce thescheduled remaining Installments of principal on such Term Loan or (ii) ona pro rata basis to reduce the scheduled remaining Installments of principal onsuch Term Loan.

(b)   Application of Mandatory Prepayments byType of Loans. Any amount required to be paid pursuant to Sections 2.14(a) through2.14(e) shall be applied as follows:

first, to prepayTerm Loans on a pro rata basis to the remaining scheduled Installments ofprincipal of the Term Loans;

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

third, to prepaythe Revolving Loans to the full extent thereof and to further permanentlyreduce the Revolving Commitments by the amount of such prepayment;

fourth, to prepayoutstanding reimbursement obligations with respect to Letters of Credit and tofurther permanently reduce the Revolving Loan Commitments by the amount of suchprepayment;

fifth, to cashcollateralize Letters of Credit and to further permanently reduce the RevolvingLoan Commitments by the amount of such cash collateralization; and

sixth, to furtherpermanently reduce the Revolving Commitments to the full extent thereof.

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

59



2.16.   General ProvisionsRegarding Payments.

(a)   All payments by Company of principal,interest, fees and other Obligations shall be made in Dollars in same dayfunds, without defense, setoff or counterclaim, free of any restriction orcondition, and delivered to Administrative Agent not later than 12:00 noon (NewYork City time) on the date due at the Principal Office designated byAdministrative Agent for the account of Lenders; for purposes of computinginterest and fees, funds received by Administrative Agent after that time onsuch due date shall be deemed to have been paid by Company on the nextsucceeding Business Day.

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

(c)   Administrative Agent (or its agent orsub-agent appointed by it) shall promptly distribute to each Lender at suchaddress as such Lender shall indicate in writing, such Lender’s applicable ProRata Share of all payments and prepayments of principal and interest duehereunder, together with all other amounts due thereto, including, withoutlimitation, all fees payable with respect thereto, to the extent received byAdministrative Agent.

(d)   Notwithstanding the foregoing provisionshereof, if any Conver­sion/Continuation Notice is withdrawn as to any AffectedLender or if any Affected Lender makes Base Rate Loans in lieu of its Pro RataShare of any Eurodollar Rate Loans, Administrative Agent shall give effectthereto in apportioning payments received thereafter.

(e)   Subject to the provisos set forth in thedefinition of “Interest Period” as they may apply to Revolving Loans, wheneverany payment to be made hereunder with respect to any Loan shall be stated to bedue on a day that is not a Business Day, such payment shall be made on the nextsucceeding Business Day and, with respect to Revolving Loans only, suchextension of time shall be included in the computation of the payment ofinterest hereunder or of the Revolving Commitment fees hereunder.

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

(g)   Administrative Agent shall deem any paymentby or on behalf of Company hereunder that is not made in same day funds priorto 12:00 p.m. (New York City time) to be a non-conforming payment. Anysuch payment shall not be deemed to have been received by Administra­tive Agentuntil the later of (i) the time such funds become available funds, and (ii) 

60



the applicable next Business Day. AdministrativeAgent shall give prompt telephonic notice to Company and each applicable Lender(confirmed in writing) if any payment is non-conforming. Any non-conformingpayment (other than voluntary payments) may constitute or become a Default orEvent of Default in accordance with the terms of Section 8.1(a). Interestshall continue to accrue on any principal as to which a non-conformingpayment is made until such funds become available funds (but in no event lessthan the period from the date of such payment to the next succeeding applicableBusiness Day) at the rate determined pursuant to Section 2.10 from thedate such amount was due and payable until the date such amount is paid infull.

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

2.17.   Ratable Sharing. Lendershereby agree among themselves that, except as otherwise provided in the CollateralDocuments with respect to amounts realized from the exercise of rights with respect toLiens on the Collateral, if any of them shall, whether by voluntary payment(other than a voluntary prepayment of Loans made and applied in accordance withthe terms hereof), through the exercise of any right of set-off or banker’slien, by counterclaim or cross action or by the enforcement of any right underthe Credit Documents or otherwise, or as adequate protection of a deposittreated as cash collateral under the Bankruptcy Code, receive payment orreduction of a proportion of the aggregate amount of principal, interest,amounts payable in respect of Letters of Credit, fees and other amounts thendue and owing to such Lender hereunder or under the other Credit Documents(collectively, the “Aggregate Amounts Due”to such Lender) which is greater than the proportion received by any otherLender in respect of the Aggregate Amounts Due to such other Lender, then theLender receiving such proportionately greater payment shall (a) notifyAdministrative Agent and each other Lender of the receipt of such payment and (b) applya portion of such payment to purchase participations (which it shall be deemedto have purchased from each seller of a participation simultaneously upon thereceipt by such seller of its portion of such payment) in the Aggregate AmountsDue to the other Lenders so that all such recoveries of Aggregate Amounts Dueshall be shared by all Lenders in proportion to the Aggregate Amounts Due tothem; provided, if all or part of such proportionately greater paymentreceived by such purchasing Lender is thereafter recovered from such Lenderupon the bankruptcy or reorganization of Company or otherwise, those purchasesshall be rescinded and the purchase prices paid for such participations shallbe returned to such purchasing Lender ratably to the extent of such recovery,but without interest. Company expressly consents to the foregoing arrangementand agrees that to the extent permitted by law any holder of a participation sopurchased may exercise any and all rights of banker’s lien, set-off orcounterclaim with respect to any and all monies owing by

61



Company to that holderwith respect thereto as fully as if that holder were owed the amount of theparticipation held by that holder.

2.18.   Making or MaintainingEurodollar Rate Loans.

(a)   Inability to Determine Applicable InterestRate. In the event that Administrative Agent shall have determined (whichdetermination shall, absent manifest error, be final and conclusive and bindingupon all parties hereto), on any Interest Rate Determination Date with respectto any Eurodollar Rate Loans, that by reason of circumstances affecting theLondon interbank market adequate and fair means do not exist for ascertainingthe interest rate applicable to such Loans on the basis provided for in thedefinition of Adjusted Eurodollar Rate, Administrative Agent shall on such dategive notice (by telefacsimile or by telephone confirmed in writing) to Companyand each Lender of such determination, whereupon (i) no Loans may be madeas, or converted to, Eurodollar Rate Loans until such time as AdministrativeAgent notifies Company and Lenders that the circumstances giving rise to suchnotice no longer exist, and (ii) any Funding Notice or Conver­sion/ContinuationNotice given by Company with respect to the Loans in respect of which suchdetermination was made shall be deemed to be rescinded by Company.

(b)   Illegality or Impracticability ofEurodollar Rate Loans. In the event that on any date any Lender shall havedetermined (which determination shall, absent manifest error, be final andconclusive and binding upon all parties hereto but shall be made only afterconsultation with Company and Administrative Agent) that the making,maintaining or continuation of its Eurodollar Rate Loans (i) has becomeunlawful as a result of compliance by such Lender in good faith with any law,treaty, governmental rule, regulation, guideline or order (or would conflictwith any such treaty, governmental rule, regulation, guideline or order nothaving the force of law even though the failure to comply therewith would notbe unlawful), or (ii) has become impracticable, as a result ofcontingencies occurring after the Second Amendment Effective Date whichmaterially and adversely affect the London interbank market or the position ofsuch Lender in that market, then, and in any such event, such Lender shall bean “AffectedLender” andit shall on that day give notice (by telefacsimile or by telephone confirmed inwriting) to Company and Administrative Agent of such determination (whichnotice Administrative Agent shall promptly transmit to each other Lender). Thereafter(1) the obligation of the Affected Lender to make Loans as, or to convertLoans to, Eurodollar Rate Loans shall be suspended until such notice shall bewithdrawn by the Affected Lender, (2) to the extent such determination bythe Affected Lender relates to a Eurodollar Rate Loan then being requested byCompany pursuant to a Funding Notice or a Conversion/Continuation Notice, theAffected Lender shall make such Loan as (or continue such Loan as or convertsuch Loan to, as the case may be) a Base Rate Loan, (3) the AffectedLender’s obligation to maintain its outstanding Eurodollar Rate Loans (the “Affected Loans”) shall be terminated at the earlierto occur of the expiration of the Interest Period then in effect with respectto the Affected Loans or when required by law, and (4) 

62



the Affected Loans shallautomatically convert into Base Rate Loans on the date of such termination. Notwithstandingthe foregoing, to the extent a determination by an Affected Lender as describedabove relates to a Eurodollar Rate Loan then being requested by Companypursuant to a Funding Notice or a Conversion/Continuation Notice, Company shallhave the option, subject to the provisions of Section 2.18(c), to rescindsuch Funding Notice or Conversion/Continuation Notice as to all Lenders bygiving notice (by telefacsimile or by telephone confirmed in writing) toAdministrative Agent of such rescission on the date on which the AffectedLender gives notice of its determination as described above (which notice ofrescission Administrative Agent shall promptly transmit to each other Lender). Exceptas provided in the immediately preceding sentence, nothing in this Section 2.18(b) shallaffect the obligation of any Lender other than an Affected Lender to make ormaintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordancewith the terms hereof.

(c)   Compensation for Breakage or Non-Commencementof Interest Periods. Company shall compensate each Lender, upon writtenrequest by such Lender (which request shall set forth the basis for requestingsuch amounts), for all reasonable losses, expenses and liabilities (includingany interest paid by such Lender to lenders of funds borrowed by it to make orcarry its Eurodollar Rate Loans and any loss, expense or liability sustained bysuch Lender in connection with the liquidation or re-employment of suchfunds but excluding loss of anticipated profits) which such Lender may sustain:(i) if for any reason (other than a default by such Lender) a borrowing ofany Eurodollar Rate Loan does not occur on a date specified therefor in aFunding Notice or a telephonic request for borrowing, or a conversion to orcontinuation of any Eurodollar Rate Loan does not occur on a date specifiedtherefor in a Conversion/Continuation Notice or a telephonic request forconversion or continuation; (ii) if any prepayment or other principalpayment of, or any conversion of, any of its Eurodollar Rate Loans occurs on adate prior to the last day of an Interest Period applicable to that Loan; or (iii) ifany prepayment of any of its Eurodollar Rate Loans is not made on any datespecified in a notice of prepayment given by Company.

(d)   Booking of Eurodollar Rate Loans. Subjectto Section 2.21, any Lender may make, carry or transfer Eurodollar RateLoans at, to, or for the account of any of its branch offices or the office ofan Affiliate of such Lender.

(e)   Assumptions Concerning Funding ofEurodollar Rate Loans. Calculation of all amounts payable to a Lender underthis Section 2.18 and under Section 2.19 shall be made as though suchLender had actually funded each of its relevant Eurodollar Rate Loans throughthe purchase of a Eurodollar deposit bearing interest at the rate obtainedpursuant to clause (i) of the definition of Adjusted Eurodollar Rate in anamount equal to the amount of such Eurodollar Rate Loan and having a maturitycomparable to the relevant Interest Period and through the transfer of suchEurodollar deposit from an offshore office of such Lender to a domestic officeof such Lender in the United States of America; provided, however,each Lender may fund each of its

63



Eurodollar Rate Loans in any mannerit sees fit and the foregoing assumptions shall be utilized only for thepurposes of calculating amounts payable under this Section 2.18 and under Section 2.19.

2.19.   Increased Costs;Capital Adequacy.

(a)   Compensation For Increased Costs. Inthe event that any Lender (which term shall include Issuing Bank for purposesof this Section 2.19(a)) shall determine (which determination shall,absent manifest error, be final and conclusive and binding upon all partieshereto) that any law, treaty or governmental rule, regulation or order, or anychange therein or in the interpretation, administration or application thereof(including the introduction of any new law, treaty or governmental rule,regulation or order), or any determination of a court or governmentalauthority, in each case that becomes effective after the Second AmendmentEffective Date, or compliance by such Lender with any guideline, request ordirective issued or made after the Second Amendment Effective Date by anycentral bank or other governmental or quasi-governmental authority(whether or not having the force of law): (i) imposes, modifies or holdsapplicable any reserve (including any marginal, emergency, supplemental,special or other reserve), special deposit, compulsory loan, FDIC insurance orsimilar requirement against assets held by, or deposits or other liabilities inor for the account of, or advances or loans by, or other credit extended by, orany other acquisition of funds by, any office of such Lender (other than anysuch reserve or other requirements with respect to Eurodollar Rate Loans thatare reflected in the definition of Adjusted Eurodollar Rate); or (ii) imposesany other condition (other than with respect to a Tax matter) on or affectingsuch Lender (or its applicable lending office) or its obligations hereunder orthe London interbank market; and the result of any of the foregoing is toincrease the cost to such Lender of agreeing to make, making or maintainingLoans hereunder or to reduce any amount received or receivable by such Lender(or its applicable lending office) with respect thereto; then, in any suchcase, Company shall promptly pay to such Lender, upon receipt of the statementreferred to in the next sentence, such additional amount or amounts (in theform of an increased rate of, or a different method of calculating, interest orotherwise as such Lender in its sole discretion shall determine) as may benecessary to compensate such Lender for any such increased cost or reduction inamounts received or receivable hereunder. Such Lender shall deliver to Company(with a copy to Administrative Agent) a written statement, setting forth inreasonable detail the basis for calculating the additional amounts owed to suchLender under this Section 2.19(a), which statement shall be conclusive andbinding upon all parties hereto absent manifest error.

(b)   Capital Adequacy Adjustment. In theevent that any Lender (which term shall include Issuing Bank for purposes ofthis Section 2.19(b)) shall have determined that the adoption,effectiveness, phase-in or applicability after the Second AmendmentEffective Date of any law, rule or regulation (or any provision thereof)regarding capital adequacy, or any change therein or in the interpretation oradministration thereof by any Governmental Authority, central

64



bank or comparable agency chargedwith the interpretation or administration thereof, or compliance by any Lender(or its applicable lending office) with any guideline, request or directiveregarding capital adequacy (whether or not having the force of law) of any suchGovernmental Authority, central bank or comparable agency, has or would havethe effect of reducing the rate of return on the capital of such Lender or anycorporation controlling such Lender as a consequence of, or with reference to,such Lender’s Loans or Revolving Commitments or Letters of Credit, orparticipations therein or other obligations hereunder with respect to the Loansor the Letters of Credit to a level below that which such Lender or suchcontrolling corporation could have achieved but for such adoption,effectiveness, phase-in, applicability, change or compliance (taking intoconsideration the policies of such Lender or such controlling corporation withregard to capital adequacy), then from time to time, within five Business Daysafter receipt by Company from such Lender of the statement referred to in thenext sentence, Company shall pay to such Lender such additional amount oramounts as will compensate such Lender or such controlling corporation on anafter-tax basis for such reduction. No Lender shall be entitled torequest any payment pursuant to this Section 2.19(b) unless suchLender is generally demanding payment under comparable provisions of itsagreements with similarly situated borrowers. Such Lender shall deliver toCompany (with a copy to Administrative Agent) a written statement, settingforth in reasonable detail the basis for calculating the additional amountsowed to Lender under this Section 2.19(b), which statement shall beconclusive and binding upon all parties hereto absent manifest error.

2.20.   Taxes; Withholding,etc.

(a)   Payments to Be Free and Clear. Allsums payable by any Credit Party hereunder and under the other Credit Documentsshall (except to the extent required by law) be paid free and clear of, andwithout any deduction or withholding on account of, any Tax (other than a Taxon the overall net income of any Lender) imposed, levied, collected, withheldor assessed by or within the United States of America or any politicalsubdivision in or of the United States of America or any other jurisdictionfrom or to which a payment is made by or on behalf of any Credit Party or byany federation or organization of which the United States of America or anysuch jurisdiction is a member at the time of payment.

(b)   Withholding of Taxes. If any CreditParty or any other Person is required by law to make any deduction orwithholding on account of any such Tax from any sum paid or payable by anyCredit Party to Administrative Agent or any Lender (which term shall includeIssuing Bank for purposes of this Section 2.20(b)) under any of the CreditDocuments: (i) Company shall notify Administrative Agent of any suchrequirement or any change in any such requirement as soon as Company becomesaware of it; (ii) Company shall pay any such Tax before the date on whichpenalties attach thereto, such payment to be made (if the liability to pay isimposed on any Credit Party) for its own account or (if that liability isimposed on Administrative Agent or such Lender, as the case may be) on behalfof and in the name of

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Administrative Agent or such Lender; (iii) thesum payable by such Credit Party in respect of which the relevant deduction,withholding or payment is required shall be increased to the extent necessaryto ensure that, after the making of that deduction, withholding or payment,Administrative Agent or such Lender, as the case may be, receives on the duedate a net sum equal to what it would have received had no such deduction,withholding or payment been required or made; and (iv) within thirty daysafter paying any sum from which it is required by law to make any deduction orwithholding, and within thirty days after the due date of payment of any Taxwhich it is required by clause (ii) above to pay, Company shall deliver toAdministrative Agent evidence satisfactory to the other affected parties ofsuch deduction, withholding or payment and of the remittance thereof to therelevant taxing or other authority; provided, no such additional amount shallbe required to be paid to any Lender under clause (iii) above except tothe extent that any change after the Second Amendment Effective Date (in the caseof each Lender listed on the signature pages of the Second Amendment onthe Second Amendment Effective Date) or after the effective date of theAssignment Agreement pursuant to which such Lender became a Lender (in the caseof each other Lender) in any such requirement for a deduction, withholding orpayment as is mentioned therein shall result in an increase in the rate of suchdeduction, withholding or payment from that in effect at the Second AmendmentEffective Date or at the date of such Assignment Agreement, as the case may be,in respect of payments to such Lender.

(c)   Evidence of Exemption From U.S.Withholding Tax. Each Lender that is not a United States Person (as suchterm is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S.federal income tax purposes (a “Non-US Lender”) shall deliver to AdministrativeAgent for transmission to Company, on or prior to the Second AmendmentEffective Date (in the case of each Lender listed on the signature pages ofthe Second Amendment on the Second Amendment Effective Date) or on or prior tothe date of the Assignment Agreement pursuant to which it becomes a Lender (inthe case of each other Lender), and at such other times as may be necessary inthe determination of Company or Administrative Agent (each in the reasonableexercise of its discretion), (i) two original copies of Internal RevenueService Form W-8BEN or W-8ECI (or any successor forms),properly completed and duly executed by such Lender, and such otherdocumentation required under the Internal Revenue Code or otherwise reasonablyrequested by Company to establish that such Lender is not subject to deductionor withholding of United States federal income tax with respect to any paymentsto such Lender of principal, interest, fees or other amounts payable under anyof the Credit Documents, or (ii) if such Lender is not a “bank” or otherPerson described in Section 881(c)(3) of the Internal Revenue Codeand cannot deliver documentation pursuant to clause (i) above, aCertificate re Non-Bank Status together with two original copies ofInternal Revenue Service Form W-8BEN (or any successor form),properly completed and duly executed by such Lender, and such otherdocumentation required under the Internal Revenue Code or otherwise reasonablyrequested by Company to establish that such Lender is

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not subject to deduction orwithholding of United States federal income tax with respect to any payments tosuch Lender of interest payable under any of the Credit Documents. Each Lenderrequired to deliver any forms, certificates or other evidence with respect toUnited States federal income tax withholding matters pursuant to this Section 2.20(c) herebyagrees, from time to time after the initial delivery by such Lender of suchforms, certificates or other evidence, whenever a lapse in time or change incircumstances renders such forms, certificates or other evidence obsolete orinaccurate in any material respect, that such Lender shall promptly deliver toAdministrative Agent for transmission to Company two new original copies ofInternal Revenue Service Form W-8BEN or W-8ECI, or aCertificate re Non-Bank Status and two original copies of InternalRevenue Service Form W-8BEN (or any successor form), as the case maybe, properly completed and duly executed by such Lender, and such otherdocumentation required under the Internal Revenue Code or otherwise reasonablyrequested by Company to confirm or establish that such Lender is not subject todeduction or withholding of United States federal income tax with respect topayments to such Lender under the Credit Documents, or notify AdministrativeAgent and Company of its inability to deliver any such forms, certificates orother evidence. Company shall not be required to pay any additional amount to anyNon-US Lender under Section 2.20(b)(iii) if such Lender shallhave failed (1) to deliver the forms, certificates or other evidencereferred to in the second sentence of this Section 2.20(c), or (2) tonotify Administrative Agent and Company of its inability to deliver any suchforms, certificates or other evidence, as the case may be; provided, ifsuch Lender shall have satisfied the requirements of the first sentence of thisSection 2.20(c) on the Second Amendment Effective Date or on the dateof the Assignment Agreement pursuant to which it became a Lender, asapplicable, nothing in this last sentence of Section 2.20(c) shallrelieve Company of its obligation to pay any additional amounts pursuant this Section 2.20in the event that, as a result of any change in any applicable law, treaty orgovernmental rule, regulation or order, or any change in the interpretation,administration or application thereof, such Lender is no longer properlyentitled to deliver forms, certificates or other evidence at a subsequent dateestablishing the fact that such Lender is not subject to withholding asdescribed herein.

2.21.   Obligationto Mitigate. Each Lender (which term shall include IssuingBank for purposes of this Section 2.21) agrees that, as promptly aspracticable after the officerof such Lender responsible for administering its Loans or Letters of Credit, asthe case may be, becomes aware of the occurrence of an event or the existenceof a condition that would cause such Lender to become an Affected Lender orthat would entitle such Lender to receive payments under Section 2.18,2.19 or 2.20, it will, to the extent not inconsistent with the internalpolicies of such Lender and any applicable legal or regulatory restrictions,use reasonable efforts to (a) make, issue, fund or maintain its CreditExtensions, including any Affected Loans, through another office of such Lender,or (b) take such other measures as such Lender may deem reasonable, if asa result thereof the circumstances which would cause such Lender to be anAffected Lender would cease to exist or the additional amounts which wouldotherwise be required to be paid to

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such Lender pursuant to Section 2.18,2.19 or 2.20 would be materially reduced and if, as determined by such Lenderin its sole discretion, the making, issuing, funding or maintaining of suchRevolving Commitments, Loans or Letters of Credit through such other office orin accordance with such other measures, as the case may be, would not otherwiseadversely affect such Revolving Commitments, Loans or Letters of Credit or theinterests of such Lender in any material respect; provided, such Lenderwill not be obligated to utilize such other office pursuant to this Section 2.21unless Company agrees to pay all incremental expenses incurred by such Lenderas a result of utilizing such other office as described in clause (i) above.A certificate as to the amount of any such expenses payable by Company pursuantto this Section 2.21 (setting forth in reasonable detail the basis forrequesting such amount) submitted by such Lender to Company (with a copy toAdministrative Agent) shall be conclusive absent manifest error.

2.22.   Defaulting Lenders. Anythingcontained herein to the contrary notwithstanding, in the event that any Lenderdefaults (a “Defaulting Lender”) in itsobligation to fund (a “Funding Default”) any Revolving Loan or its portion of anyunreimbursed payment under Section 2.3(b)(iv) or 2.4(e) (in eachcase, a “Defaulted Loan”), then (a) duringany Default Period with respect to such Defaulting Lender, such DefaultingLender shall be deemed not to be a “Lender” for purposes of voting on anymatters (including the granting of any consents or waivers) with respect to anyof the Credit Documents; (b) to the extent permitted by applicable law,until such time as the Default Excess with respect to such Defaulting Lendershall have been reduced to zero, (i) any voluntary prepayment of theRevolving Loans shall, if Company so directs at the time of making suchvoluntary prepayment, be applied to the Revolving Loans of other Lenders as ifsuch Defaulting Lender had no Revolving Loans outstanding and the RevolvingExposure of such Defaulting Lender were zero, and (ii) any mandatoryprepayment of the Revolving Loans shall, if Company so directs at the time ofmaking such mandatory prepayment, be applied to the Revolving Loans of otherLenders (but not to the Revolving Loans of such Defaulting Lender) as if suchDefaulting Lender had funded all Defaulted Loans of such Defaulting Lender, itbeing understood and agreed that Company shall be entitled to retain anyportion of any mandatory prepayment of the Revolving Loans that is not paid tosuch Defaulting Lender solely as a result of the operation of the provisions ofthis clause (b); (c) such Defaulting Lender’s Revolving Commitment andoutstanding Revolving Loans and such Defaulting Lender’s Pro Rata Share of theLetter of Credit Usage shall be excluded for purposes of calculating theRevolving Commitment fee payable to Lenders in respect of any day during anyDefault Period with respect to such Defaulting Lender, and such DefaultingLender shall not be entitled to receive any Revolving Commitment fee pursuantto Section 2.11 with respect to such Defaulting Lender’s RevolvingCommitment in respect of any Default Period with respect to such DefaultingLender; and (d) the Total Utilization of Revolving Commitments as at anydate of determination shall be calculated as if such Defaulting Lender hadfunded all Defaulted Loans of such Defaulting Lender. No Revolving Commitmentof any Lender shall be increased or otherwise affected, and, except asotherwise expressly provided in this Section 2.22, performance

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by Company of itsobligations hereunder and the other Credit Documents shall not be excused orotherwise modified as a result of any Funding Default or the operation of this Section 2.22.The rights and remedies against a Defaulting Lender under this Section 2.22are in addition to other rights and remedies which Company may have againstsuch Defaulting Lender with respect to any Funding Default and whichAdministrative Agent or any Lender may have against such Defaulting Lender withrespect to any Funding Default.

2.23.   Removal orReplacement of a Lender. Anything contained herein to thecontrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender”)shall give notice to Company that such Lender is an Affected Lender or thatsuch Lender is entitled to receive payments under Section  2.18, 2.19or 2.20, (ii) the circumstances which have caused such Lender to be anAffected Lender or which entitle such Lender to receive such payments shallremain in effect, and (iii) such Lender shall fail to withdraw such noticewithin five Business Days after Company’s request for such withdrawal; or (b) (i) anyLender shall become a Defaulting Lender, (ii) the Default Period for suchDefaulting Lender shall remain in effect, and (iii) such Defaulting Lendershall fail to cure the default as a result of which it has become a DefaultingLender within five Business Days after Company’s request that it cure suchdefault; or (c) in connection with any proposed amendment, modification,termination, waiver or consent with respect to any of the provisions hereof ascontemplated by Section 10.5(b), the consent of Requisite Lenders shallhave been obtained but the consent of one or more of such other Lenders (each a“Non-Consenting Lender”) whoseconsent is required shall not have been obtained; then, with respect to eachsuch Increased-Cost Lender, Defaulting Lender or Non-ConsentingLender (the “Terminated Lender”), Company may,by giving written notice to Administrative Agent and any Terminated Lender ofits election to do so, elect to cause such Terminated Lender (and suchTerminated Lender hereby irrevocably agrees) to assign its outstanding Loansand its Revolving Commitments, if any, in full to one or more EligibleAssignees (each a “Replacement Lender”)in accordance with the provisions of Section 10.6; provided, (1) onthe date of such assignment, the Replacement Lender shall pay to TerminatedLender an amount equal to the sum of (A) an amount equal to the principalof, and all accrued interest on, all outstanding Loans of the TerminatedLender, (B) an amount equal to all unreimbursed drawings that have beenfunded by such Terminated Lender, together with all then unpaid interest withrespect thereto at such time and (C) an amount equal to all accrued, buttheretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.11;(2) on the date of such assignment, Company shall pay any amounts payableto such Terminated Lender pursuant to Section 2.18(c), 2.19 or 2.20; and (3) inthe event such Terminated Lender is a Non-Consenting Lender, eachReplacement Lender shall consent, at the time of such assignment, to eachmatter in respect of which such Terminated Lender was a Non-ConsentingLender; provided, Company may not make such election with respect to anyTerminated Lender that is also an Issuing Bank unless, prior to orsimultaneously with the effectiveness of such election, Company shall havecaused each outstanding Letter of Credit issued thereby to be cancelled.

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Upon the prepayment ofall amounts owing to any Terminated Lender and the termination of suchTerminated Lender’s Revolving Commitments, if any, such Terminated Lender shallno longer constitute a “Lender” for purposes hereof; provided, anyrights of such Terminated Lender to indemnification hereunder shall survive asto such Terminated Lender.

2.24.   Increasein Revolving Commitments. Company may by written notice toAdministrative Agent elect to request on no more than five occasions prior tothe Revolving CommitmentTermination Date, an increase to the existing Revolving Loan Commitments (anysuch increase, the “New Revolving Commitments”),by an aggregate amount not in excess of $30,000,000 and not less than$1,000,000 individually. Each such notice shall specify (A) the date(each, an “Increased Amount Date”)on which Company proposes that the New Revolving Commitments shall beeffective, which shall be a date not less than 10 Business Days after the dateon which such notice is delivered to Administrative Agent; provided thatonly one Business Day’s notice shall be required in connection with any suchincrease on the Second Amendment Effective Date and (B) the identity ofeach Lender or other Person that is an Eligible Assignee (each, a “New Revolving Lender”) to whom Companyproposes any portion of such New Revolving Commitments be allocated and theamounts of such allocations; provided that any Lender approached toprovide all or a portion of the New Revolving Commitments may elect or decline,in its sole discretion, to provide a New Revolving Commitment. Such NewRevolving Commitments shall become effective as of such Increased Amount Date; providedthat (1) no Default or Event of Default shall exist on such IncreasedAmount Date before or after giving effect to such New Revolving Commitments; (2) Companyand its Subsidiaries shall be in pro forma compliance with each of thecovenants set forth in Section 6.8 as of the last day of the most recentlyended Fiscal Quarter after giving effect to such New Revolving Commitments; (3) theNew Revolving Commitments shall be effected pursuant to one or more JoinderAgreements executed and delivered by Company, the New Revolving Lender andAdministrative Agent, and each of which shall be recorded in the Register andeach New Revolving Lender shall be subject to the requirements set forth in Section 2.20(c);(4) Company shall make any payments required pursuant to Section 2.18(c) inconnection with the New Revolving Commitments; and (5) Company shalldeliver or cause to be delivered any documents reasonably requested byAdministrative Agent in connection with any such transaction.

On any Increased Amount Date on which New Revolving Commitments areeffected, subject to the satisfaction of the foregoing terms and conditions, (a) eachof the Revolving Lenders shall assign to each of the New Revolving Lenders, andeach of the New Revolving Lenders shall purchase from each of the RevolvingLoan Lenders, at the principal amount thereof (together with accrued interest),such interests in the Revolving Loans outstanding on such Increased Amount Dateas shall be necessary in order that, after giving effect to all suchassignments and purchases, such Revolving Loans will be held by existingRevolving Loan Lenders and New Revolving Lenders ratably in accordance withtheir Revolving Loan Commitments after giving effect to the addition of suchNew Revolving Commitments to the

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Revolving Loan Commitments, (b) each NewRevolving Commitment shall be deemed for all purposes a Revolving LoanCommitment and each Loan made thereunder (a “NewRevolving Loan”) shall be deemed, for all purposes, a Revolving Loanand (c) each New Revolving Lender shall become a Lender with respect tothe New Revolving Commitment and all matters relating thereto.

Administrative Agent shall notify Lenders promptly upon receipt ofCompany’s notice of each Increased Amount Date and in respect thereof the NewRevolving Commitments and the New Revolving Lenders.

The terms and provisions of the NewRevolving Loans shall be identical to the Revolving Loans. Each JoinderAgreement may, without the consent of any other Lenders, effect such amendmentsto this Agreement and the other Credit Documents as may be necessary orappropriate, in the opinion of the Administrative Agent, to effect theprovisions of this Section 2.24.

SECTION 3.  CONDITIONS PRECEDENT

3.1.   Closing Date. Theobligation of any Lender to make a Credit Extension under the Existing CreditAgreement on the Closing Date was subject to the satisfaction, or waiver in accordance with Section 10.5,of the following conditions on or before the Closing Date. Solely for purposesof the historical conditions set forth in this Section 3.1, capitalizedterms used in this Section 3.1 and defined in the Existing CreditAgreement shall have the meanings specified in the Existing Credit Agreement asapplicable as of the Closing Date.

(a)   Credit Documents. Administrative Agentshall have received sufficient copies of each Credit Document originallyexecuted and delivered by each applicable Credit Party for each Lender.

(b)   OrganizationalDocuments; Incumbency. Administrative Agent shall have received (i) sufficientcopies of each Organizational Document executed and delivered by each CreditParty, as applicable, and, to the extent applicable, certified as of a recentdate by the appropriate governmental official, for each Lender, each dated theClosing Date or a recent date prior thereto; (ii) signature and incumbencycertificates of the officers of such Person executing the Credit Documents towhich it is a party; (iii) resolutions of the Board of Directors orsimilar governing body of each Credit Party approving and authorizing theexecution, delivery and performance of this Agreement and the other CreditDocuments and the Related Agreements to which it is a party or by which it orits assets may be bound as of the Closing Date, certified as of the ClosingDate by its secretary or an assistant secretary as being in full force andeffect without modification or amendment; (iv) a good standing certificate(or the equivalent) from the

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applicableGovernmental Authority of each Credit Party’s jurisdiction of incorporation,organization or formation and in each jurisdiction in which it is qualified asa foreign corporation or other entity to do business, each dated a recent dateprior to the Closing Date; and (v) such other documents as AdministrativeAgent may reasonably request.

(c)   Organizational and Capital Structure. Theorganizational structure and capital structure of Holdings and itsSubsidiaries, both before and after giving effect to the Acquisition, shall beas set forth on Schedule 4.1.

(d)   Capitalization of Holdings and Company.On or before the Closing Date, Holdings or its parent entity shall have issued (i) commonequity in Holdings or such parent entity to Permitted Holders of not less than$100,000,000 and (ii) preferred equity in Holdings to the Seller and otherinvestors reasonably acceptable to the Lenders of not less than $125,000,000,all on terms and conditions reasonably satisfactory to the Lenders (the “Equity Financing”) and the Company shall havereceived the proceeds thereof from Holdings and the gross proceeds of theSenior Subordinated Notes in an aggregate principal amount not less than$320,000,000 which, together with the proceeds from borrowings made on theClosing Date pursuant to this Agreement, shall be sufficient to consummate theAcquisition and pay all related fees, commissions and expenses. The terms ofthe Equity Financing and the agreements relating thereto, to the extentrelevant to the financing pursuant to this Agreement, shall be reasonably satisfactoryin all material respects to Administrative Agent.

(e)   Consummation of Transactions Contemplatedby Related Agreements.

(i)   (1) Allconditions to the issuance and sale of the Senior Subordinated Notes shall havebeen satisfied or the fulfillment of any such conditions shall have been waivedwith the consent of Administrative Agent, (2) the terms of the SeniorSubordinated Note Documents shall be reasonably satisfactory in all respects toAdministrative Agent and its counsel, and (3) Company shall have issued$320,000,000 in aggregate face value of the Senior Subordinated Notes.

(ii)   (1) Thestructure utilized to consummate the Acquisition, the terms thereof, the costsand expenses incurred in connection therewith, the pro forma capitalization ofthe Company after giving effect to the Acquisition and the definitivedocumentation relating thereto shall be in form and substance reasonablysatisfactory to Administrative Agent, (2) the Purchase Agreement shall bein full force and effect on the Closing Date, (3) the Acquisition shallhave been consummated pursuant to the Purchase Agreement, and (4) allconditions precedent to the consummation of the Acquisition shall have beensatisfied or, with the prior approval of Administrative Agent, waived.

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(iii)   Thereshall not exist (pro forma for the Acquisition andthe financing thereof) any default or event of default under any of the CreditDocuments, or under any other material Indebtedness of the Company or itsSubsidiaries.

(iv)  Administrative Agent shall have received a fully executed or conformedcopy of each Related Agreement and any documents executed in connectiontherewith.

(f)   Existing Indebtedness. On the ClosingDate, Holdings and its Subsidiaries shall have (i) repaid in full allExisting Indebtedness listed in Part A of Schedule 6.1, (ii) terminatedany commitments to lend or make other extensions of credit thereunder, (iii) deliveredto Administrative Agent all documents or instruments necessary to release allLiens securing Existing Indebtedness listed in Part A of Schedule 6.1 orother obligations of Holdings and its Subsidiaries thereunder being repaid onthe Closing Date, and (iv) made arrangements satisfactory toAdministrative Agent with respect to the cancellation of any letters of creditoutstanding thereunder or the issuance of Letters of Credit to support theobligations of Holdings and its Subsidiaries with respect thereto.

(g)   Transaction Costs. On or prior to theClosing Date, Company shall have delivered to Administrative Agent Company’sreasonable best estimate of the Transaction Costs (other than fees payable toany Agent).

(h)   Governmental Authorizations and Consents.Each Credit Party shall have obtained all Governmental Authorizations andall consents of other Persons, in each case that are necessary in connectionwith the transactions contemplated by the Credit Documents and the RelatedAgreements (except for any Governmental Authorizations or consents the absenceof which could not reasonably be expected to have a Material Adverse Effect)and each of the foregoing shall be in full force and effect and in form andsubstance reasonably satisfactory to Administrative Agent. All applicablewaiting periods shall have expired without any action being taken or threatenedby any competent Governmental Authority which would restrain, prevent orotherwise impose materially adverse conditions on the transactions contemplatedby the Credit Documents or the Related Agreements or the financing thereof andno action, request for stay, petition for review or rehearing, reconsideration,or appeal with respect to any of the foregoing shall be pending, and the timefor any applicable agency to take action to set aside its consent on its ownmotion shall have expired.

(i)   Personal Property Collateral. In orderto create in favor of Collateral Agent, for the benefit of Secured Parties, avalid, perfected First Priority security interest in the personal propertyCollateral, Collateral Agent shall have received:

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(i)   evidencereasonably satisfactory to Collateral Agent of the compliance by each CreditParty of their obligations under the Pledge and Security Agreement and theother Collateral Documents (including, without limitation, their obligations toexecute and deliver originals of securities, instruments and chattel paper andany agreements governing deposit and/or securities accounts as providedtherein);

(ii)   a completedCollateral Questionnaire dated the Closing Date and executed by an AuthorizedOfficer of each Credit Party, together with all attachments contemplatedthereby, including (A) the results of a recent search, by a Personsatisfactory to Collateral Agent, of all effective UCC financing statements (orequivalent filings) made with respect to any personal or mixed property of anyCredit Party in the jurisdictions specified in the Collateral Questionnaire,together with copies of all such filings disclosed by such search, and (B) UCCtermination statements (or similar documents) duly executed by all applicablePersons for filing in all applicable jurisdictions as may be necessary toterminate any effective UCC financing statements (or equivalent filings)disclosed in such search (other than any such financing statements in respectof Permitted Liens);

(iii)   opinionsof counsel (which counsel shall be reasonably satisfactory to Collateral Agent)with respect to the creation and perfection of the security interests in favorof Collateral Agent in such Collateral and such other matters governed by thelaws of each jurisdiction in which any Credit Party is organized as CollateralAgent may reasonably request, in each case in form and substance reasonablysatisfactory to Collateral Agent;

(iv)   evidencethat each Credit Party shall have taken or caused to be taken any other action,executed and delivered or caused to be executed and delivered any otheragreement, document and instrument (including without limitation, (i) aLandlord Personal Property Collateral Access Agreement executed by the landlordof any Leasehold Property and by the applicable Credit Party and (ii) anyintercompany notes evidencing Indebtedness permitted to be incurred pursuant toSection 6.1(b)) and made or caused to be made any other filing andrecording (other than as set forth herein) reasonably required by CollateralAgent; and

(v)   evidencesatisfactory to the Collateral Agent that Company has retained, at its solecost and expense, a service provider acceptable to the Collateral Agent for thetracking of all such financing statements and notification to the CollateralAgent, of, among other things, the upcoming lapse or expiration thereof.

(j)   Environmental Reports. AdministrativeAgent shall have received reports and other information concerning anyenvironmental liabilities as are delivered by Seller under

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the Purchase Agreement, in form,scope and substance reasonably satisfactory to Administrative Agent.

(k)   Financial Statements; Projections. Lendersshall have received from Holdings (i) the Historical Financial Statements,(ii) pro forma consolidated and consolidating balance sheets of Holdingsand its Subsidiaries as at the Closing Date, and reflecting the consummation ofthe Acquisition, the related financings and the other transactions contemplatedby the Credit Documents to occur on or prior to the Closing Date, which proforma financial statements shall be in form and substance reasonablysatisfactory to Administrative Agent, and (iii) the Projections.

(l)   Evidence of Insurance. CollateralAgent shall have received a certificate from Company’s insurance broker orother evidence satisfactory to it that all insurance required to be maintainedpursuant to Section 5.5 is in full force and effect, together withendorsements naming the Collateral Agent, for the benefit of Lenders, asadditional insured and loss payee thereunder to the extent required under Section 5.5.

(m)   Opinions of Counsel to Credit Parties.Lenders and their respective counsel shall have received originally executedcopies of the favorable written opinion of Schulte Roth & Zabel LLP,special New York counsel for the Credit Parties, substantially in the form of Exhibit Dand as to such other matters as Administrative Agent or Syndication Agent mayreasonably request, dated as of the Closing Date and otherwise in form and substancereasonably satisfactory to Administrative Agent (and each Credit Party herebyinstructs such counsel to deliver such opinions to Agents and Lenders).

(n)   Fees. Company shall have paid toSyndication Agent, Administrative Agent and Documentation Agent, the feespayable on the Closing Date referred to in Section 2.11(d).

(o)   Solvency Certificate. On the ClosingDate, Administrative Agent shall have received a Solvency Certificate fromCompany dated the Closing Date and addressed to Syndication Agent,Administrative Agent and Lenders, and in form, scope and substance reasonablysatisfactory to Administrative Agent, with appropriate attachments anddemonstrating that the Company and its Subsidiaries, taken as a whole, are, andafter giving effect to the consummation of the Acquisition, will be Solvent.

(p)   Closing Date Certificate. Holdings andCompany shall have delivered to Administrative Agent an originally executedClosing Date Certificate, together with all attachments thereto.

(q)   Credit Rating. The credit facilitiesprovided for under this Agreement shall have been assigned a credit rating byeither S&P and/or Moody’s.

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(r)   Closing Date. Lenders shall have madethe Term Loans to Company on or before March 31, 2005.

(s)   No Litigation. There shall not existany action, suit, investigation, litigation or proceeding or other legal orregulatory developments, pending or threatened in any court or before anyarbitrator or Governmental Authority that, in the reasonable opinion ofAdministrative Agent, singly or in the aggregate, materially impairs theAcquisition, the financing thereof or any of the other transactionscontemplated by the Credit Documents or the Related Agreements, or that couldreasonably be expected to have a Material Adverse Effect.

(t)   Completion of Proceedings. Allpartnership, corporate and other proceedings taken or to be taken in connectionwith the transactions contemplated hereby and all documents incidental theretonot previously found acceptable by Administrative Agent and its counsel shallbe reasonably satisfactory in form and substance to Administrative Agent andsuch counsel, and Administrative Agent and such counsel shall have received allsuch counterpart originals or certified copies of such documents as AdministrativeAgent may reasonably request.

(u)   Minimum EBITDA; Maximum Total Leverage.The pro forma Consolidated Adjusted EBITDAof the Company, after giving effect to the Acquisition, for the twelve-monthperiod ended December 31, 2004 shall not be less than $107.4 million. Theratio of pro forma ConsolidatedTotal Debt to pro formaConsolidated Adjusted EBITDA, after giving effect to the Acquisition, for thetwelve-month period ended December 31, 2004, shall not be greater than6.20:1.00.

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

3.2.  Conditions toEach Credit Extension.

(a)   Conditions Precedent. The obligationof each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit,on any Credit Date, including the Second Amendment Effective Date, are subjectto the satisfaction, or waiver in accordance with Section 10.5, of thefollowing conditions precedent:

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

(ii)   as of suchCredit Date, the representations and warranties contained herein and in theother Credit Documents shall be true and correct in all material respects

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on and as of that Credit Date to the same extent as thoughmade on and as of that date, except to the extent such representations andwarranties specifically relate to an earlier date, in which case suchrepresentations and warranties shall have been true and correct in all materialrespects on and as of such earlier date;

(iii)   as of suchCredit Date, no event shall have occurred and be continuing or would resultfrom the consummation of the applicable Credit Extension that would constitutean Event of Default or a Default;

(iv)   on orbefore the date of issuance of any Letter of Credit, Administra­tive Agentshall have received all other information required by the applicable IssuanceNotice, and such other documents or information as Issuing Bank may reasonablyrequire in connection with the issuance of such Letter of Credit; and

(v)   after givingeffect to such Credit Extension and the anticipated use of proceeds thereof,the aggregate Cash and Cash Equivalents of Holdings and its Subsidiaries willnot exceed $10,000,000.

(b)   Notices. Any Notice shall be executedby an Authorized Officer in a writing delivered to Administrative Agent. Inlieu of delivering a Notice, Company may give Administrative Agent telephonicnotice by the required time of any proposed borrowing, conversion/continuationor issuance of a Letter of Credit, as the case may be; provided eachsuch notice shall be promptly confirmed in writing by delivery of theapplicable Notice to Administrative Agent on or before the applicable date ofborrowing, continuation/conversion or issuance. Neither Administrative Agentnor any Lender shall incur any liability to Company in acting upon anytelephonic notice referred to above that Administrative Agent believes in goodfaith to have been given by a duly authorized officer or other person authorizedon behalf of Company or for otherwise acting in good faith.

3.3.  Conditionsto Obligation to Fund the New Term Loan Commitments on the Second AmendmentEffective Date.  The obligation of any New TermLoan Lender to make aCredit Extension under this Agreement on the Second Amendment Effective Date issubject to the satisfaction, or waiver in accordance with Section 10.5, ofthe following conditions on or before the Second Amendment Effective Date:

(a)           CreditDocuments. Administrative Agent shall have received (i) the SecondAmendment, executed and delivered by a duly authorized officer of the Company,Holdings, each other Guarantor, the Agents, the Issuing Bank, the RequisiteLenders (as defined in the Existing Credit Agreement) and the ContinuingLenders, (ii) if requested by any Lender making a New Term Loan on theSecond Amendment Effective Date, a New Term Loan Note substantially in the formof Exhibit B-1, (iii) the Reaffirmation Agreement, executed and

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delivered by a duly authorized officer of each Grantor under the Pledgeand Security Agreement and each Guarantor and (iv) sufficient copies ofeach Credit Document executed and delivered by each applicable Credit Party foreach Lender.

(b)           OrganizationalDocuments; Incumbency. Administrative Agent shall have received (i) copies of each Organizational Document executed and delivered by each CreditParty, as applicable, and, to the extent applicable, certified as of a recentdate by the appropriate governmental official, each dated the Second AmendmentEffective Date or a recent date prior thereto or, if there has been no changein such Organizational Documents since the Closing Date, a certificate of thesecretary or assistant secretary of such Credit Party to that effect; (ii) signatureand incumbency certificates of the officers of such Credit Party executing theCredit Documents to which it is a party; (iii) resolutions of the Board ofDirectors or similar governing body of each Credit Party approving andauthorizing the execution, delivery and performance of this Agreement and theother Credit Documents to which it is a party or by which it or its assets maybe bound as of the Second Amendment Effective Date, certified as of the SecondAmendment Effective Date by its secretary or an assistant secretary as being infull force and effect without modification or amendment; (iv) a goodstanding certificate from the applicable Governmental Authority of each CreditParty’s jurisdiction of incorporation, organization or formation and in eachjurisdiction in which it is qualified as a foreign corporation or other entityto do business, each dated a recent date prior to the Second AmendmentEffective Date; and (v) such other documents as Administrative Agent mayreasonably request in writing.

(c)           Letter of Direction.On or prior to the Second Amendment Effective Date, Company shall havedelivered to Lead Arranger and Administrative Agent a letter of direction withrespect to the proceeds of the New Term Loans.

(d)           Consents andApprovals. All necessary governmental, shareholder and third-partyapprovals and consents necessary in connection with the transactionscontemplated hereby shall have been received or waived and shall be in fullforce and effect, and all applicable waiting periods shall have expired withoutany action being taken by any applicable authority.

(e)           CollateralQuestionnaire. Collateral Agent shall have received from Company and eachapplicable Guarantor an updated Collateral Questionnaire dated the SecondAmendment Effective Date and executed by an Authorized Officer of each CreditParty, together with all attachments contemplated thereby, including theresults of a recent search, by a Person reasonably satisfactory to CollateralAgent, of all effective UCC financing statements (or equivalent filings) madewith respect to any personal or mixed property of any Credit Party in thejurisdictions specified in the Collateral Questionnaire, together with copiesof all such filings disclosed by such search.

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(f)            Evidence ofInsurance. Administrative Agent shall have received a certificate fromCompany’s insurance broker or other evidence reasonably satisfactory to it thatall insurance required to be maintained pursuant to Section 5.5 is in fullforce and effect and that Collateral Agent, for the benefit of Lenders has beennamed as additional insured and loss payee thereunder to the extent requiredunder Section 5.5.

(g)           Opinions of Counselto Credit Parties. Lenders and their respective counsel shall have receivedan originally executed copy of the favorable written opinion of Schulte Roth &Zabel LLP, special New York counsel for the Credit Parties, addressed to theAgents and the Lenders substantially in the same form and substance as theopinion delivered in connection with the closing under the Existing CreditAgreement.

(h)           Fees. All costs,fees, expenses (including, without limitation, reasonable legal fees andexpenses, title premiums and recording taxes and fees) and other compensationpayable to Lead Arranger and Administrative Agent shall have been paid to theextent due.

(i)            Second AmendmentEffective Date Solvency Certificate. On the Second Amendment EffectiveDate, Administrative Agent shall have received a Second Amendment EffectiveDate Solvency Certificate from Company dated the Second Amendment EffectiveDate and addressed to Administrative Agent and Lenders, and in form, scope andsubstance reasonably satisfactory to Administrative Agent, with appropriateattachments and demonstrating that after giving effect to the consummation ofthe transactions contemplated hereby, Company and its Subsidiaries, on aconsolidated basis, are and will be Solvent.

(j)            Second AmendmentEffective Date Certificate. Holdings and Company shall have delivered toAdministrative Agent an originally executed Second Amendment Effective DateCertificate, together with all attachments thereto.

(k)           NoLitigation. There shall not exist any action, suit, investigation,litigation or proceeding or other legal or regulatory development, pending orthreatened in any court or before any arbitrator or Governmental Authority,that singly or in the aggregate materially impairs the transactionscontemplated by the Credit Documents or that would reasonably be expected tohave a Material Adverse Effect.

(l)            Completionof Proceedings. All limited liability company, partnership, corporate andother proceedings taken or to be taken in connection with the transactionscontemplated hereby shall be satisfactory in form and substance toAdministrative Agent and its counsel, and Administrative Agent and such counselshall have received all such counterpart originals or certified copies of suchdocuments as Administrative Agent may reasonably request.

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Each Lender, bydelivering its signature page to the Second Amendment and/or funding aLoan on the Second Amendment Effective Date, shall be deemed to haveacknowledged receipt of, and consented to and approved, each Credit Documentand each other document required to be approved by any Agent, Requisite Lendersor Lenders, as applicable on the Second Amendment Effective Date.

3.4.  Effectof Agreement on Other Credit Documents.  By its signature on the Existing CreditAgreement or on the Second Amendment, each Credit Party acknowledges and agrees that thisAgreement is a valid amendment of the Existing Credit Agreement made inaccordance with the terms thereof and binding against such Credit Party andthat each Credit Document (other than this Agreement) shall continue to bevalid and binding against such Credit Party and its assets and properties as ofand after the Second Amendment Effective Date (with any references to theExisting Credit Agreement in any such Credit Document construed as referencesto this Agreement).

SECTION 4.  REPRESENTATIONS AND WARRANTIES

In order to induce Lenders and Issuing Bank to enter into thisAgreement and to make each Credit Extension to be made thereby, each CreditParty represents and warrants to each Lender and Issuing Bank, on the ClosingDate and on each Credit Date (including the Second Amendment Effective Date),that the following statements are true and correct (it being understood that (i) anyrepresentations and warranties made on and as of a Credit Date other than theClosing Date shall be true and correct to the same extent as though made on andas of that date, except to the extent such representations and warrantiesspecifically relate to an earlier date, in which case such representations andwarranties shall have been true and correct on and as of such earlier date and (ii) therepresentations and warranties made on the Second Amendment Effective Date aredeemed to be made concurrently with the consummation of the transactionscontemplated hereby):

4.1.  Organization;Requisite Power and Authority; Qualification.  Eachof Holdings and its Subsidiaries (a) is duly organized, validly existingand in good standing under thelaws of its jurisdiction of organization as identified in Schedule 4.1, (b) hasall requisite power and authority to own and operate its properties, to carryon its business as now conducted and as proposed to be conducted, to enter intothe Credit Documents to which it is a party and to carry out the transactionscontemplated thereby, and (c) is qualified to do business and in goodstanding in every jurisdiction where its assets are located and wherevernecessary to carry out its business and operations, except in jurisdictionswhere the failure to be so qualified or in good standing has not had, and couldnot be reasonably expected to have, a Material Adverse Effect.

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4.2.  Capital Stock andOwnership.  The Capital Stock of each of Holdingsand its Subsidiaries has been duly authorized and validly issued and is fullypaid and non-assessable.Except as set forth on Schedule 4.2, as of the Closing Date, there was noexisting option, warrant, call, right, commitment or other agreement to whichHoldings or any of its Subsidiaries is a party requiring, and there was nomembership interest or other Capital Stock of Holdings or any of itsSubsidiaries outstanding which upon conversion or exchange would require, theissuance by Holdings or any of its Subsidiaries of any additional membershipinterests or other Capital Stock of Holdings or any of its Subsidiaries orother Securities convertible into, exchangeable for or evidencing the right tosubscribe for or purchase, a membership interest or other Capital Stock ofHoldings or any of its Subsidiaries. Schedule 4.2 correctly sets forth theownership interest of Holdings and each of its Subsidiaries in their respectiveSubsidiaries as of the Closing Date both before and after giving effect to theAcquisition.

4.3.  Due Authorization.  Theexecution, delivery and performance of the Credit Documents have been dulyauthorized by all necessary action on the part of each Credit Party that is a party thereto.

4.4.  No Conflict.  Theexecution, delivery and performance by the Credit Parties of the CreditDocuments to which they are parties and the consummation of the transactions contemplated by the CreditDocuments do not and will not (a) violate (i) any provision of anylaw or any governmental rule or regulation applicable to Holdings or anyof its Subsidiaries, (ii) any of the Organizational Documents of Holdingsor any of its Subsidiaries, or (iii) any order, judgment or decree of anycourt or other agency of government binding on Holdings or any of itsSubsidiaries, except in the case of clauses (i) and (iii) to theextent such violation could not reasonably be expected to have a MaterialAdverse Effect; (b) conflict with, result in a breach of or constitute(with due notice or lapse of time or both) a default under any materialContractual Obligation of Holdings or any of its Subsidiaries; (c) resultin or require the creation or imposition of any Lien upon any of the propertiesor assets of Holdings or any of its Subsidiaries (other than any Liens createdunder any of the Credit Documents in favor of Collateral  Agent, on behalf of Secured Parties); or (d) require,as of the Closing Date, any approval of stockholders, members or partners orany approval or consent of any Person under any Contractual Obligation ofHoldings or any of its Subsidiaries, except for any such approval or consent (i) whichwas obtained on or before the Closing Date and disclosed in writing to Lendersor (ii) where the failure to obtain such approval or consent would not bereasonably expected to have a Material Adverse Effect.

4.5.  GovernmentalConsents.  The execution, delivery and performanceby the Credit Parties of the Credit Documents to which they are parties and theconsummation of the transactionscontemplated by the Credit Documents do not and will not require anyregistration with, consent or approval of, or notice to, or other action to,with or by, any Governmental Authority except as have been obtained or made andare in full force and effect and except for

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filings and recordingswith respect to the Collateral made, or otherwise delivered to Collateral Agentfor filing and/or recordation, as of the Closing Date, except forregistrations, consents, approvals, notices or actions the failure to obtain ormake could not reasonably be expected to have a Material Adverse Effect.

4.6.  BindingObligation.  Each Credit Document has been dulyexecuted and delivered by each Credit Party that is a party thereto and is thelegally valid and binding obligationof such Credit Party, enforceable against such Credit Party in accordance withits respective terms, except as may be limited by bankruptcy, insolvency,reorganization, moratorium or similar laws relating to or limiting creditors’rights generally or by equitable principles relating to enforceability.

4.7.  HistoricalFinancial Statements.  The Historical FinancialStatements were prepared in conformity with GAAP and fairly present, in allmaterial respects, the financial position, on a consolidatedbasis, of the Persons described in such financial statements as at therespective dates thereof and the results of operations and cash flows, on aconsolidated basis, of the entities described therein for each of the periodsthen ended, subject, in the case of any such unaudited financial statements, tothe absence of footnotes and changes resulting from audit and normal year-endadjustments. As of the Closing Date, any contingent liability or liability fortaxes, long-term leases or unusual forward or long-term commitmentsof Holdings and its Subsidiaries which in any such case is material in relationto the business, operations, properties, assets or financial condition ofHoldings and its Subsidiaries taken as a whole has been reflected in the mostrecent Historical Financial Statements or the notes thereto to the extentrequired by GAAP or otherwise disclosed in a Schedule hereto.

4.8.  Projections.  Onand as of the Closing Date, the Projections of Holdings and its Subsidiaries forthe period Fiscal Year 2005 through and including Fiscal Year 2008 (the “Projections”)were based on good faith estimates and assumptions made by the management ofHoldings believed to be reasonable at the time made; provided, theProjections are not to be viewed as facts and that actual results during theperiod or periods covered by the Projections may differ from such Projectionsand that the differences may be material.

4.9.  No MaterialAdverse Change.  Since April 2, 2004, noevent, circumstance or change has occurred that has caused or evidences, eitherin any case or in the aggregate,a Material Adverse Effect.

4.10.  IntentionallyOmitted.

4.11.  AdverseProceedings, etc.  There are no AdverseProceedings, individually or in the aggregate, that could reasonably beexpected to have a Material Adverse Effect.Neither Holdings nor any of its Subsidiaries (a) is in violation of anyapplicable laws (including

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Environmental Laws) that,individually or in the aggregate, could reasonably be expected to have aMaterial Adverse Effect, or (b) is subject to or in default with respectto any final judgments, writs, injunctions, decrees, rules or regulationsof any court or other Governmental Authority that, individually or in theaggregate, could reasonably be expected to have a Material Adverse Effect.

4.12.  Payment of Taxes.  Exceptas otherwise permitted under Section 5.3, all federal and other materialtax returns and reports of Holdings and its Subsidiaries required to be filed by any of them have been timelyfiled, and all taxes shown on such tax returns to be due and payable and allassessments, fees and other governmental charges upon Holdings and itsSubsidiaries and upon their respective properties, assets, income, businessesand franchises which are due and payable have been paid when due and payable. Holdingsknows of no proposed tax assessment against Holdings or any of its Subsidiarieswhich is not being actively contested by Holdings or such Subsidiary in goodfaith and by appropriate proceedings; provided, such reserves or otherappropriate provisions, if any, as shall be required in conformity with GAAPshall have been made or provided therefor.

4.13.  Properties.

(a)   Title. Each of Holdings and itsSubsidiaries (i) has good, sufficient and legal title to (in the case offee interests in real property) or valid leasehold interests in (in the case ofleasehold interests in real or personal property), and (ii) is the ownerof (in the case of all other personal property), all of their respective propertiesand assets reflected in their respective Historical Financial Statementsreferred to in Section 4.7 and in the most recent financial statementsdelivered pursuant to Section 5.1, in each case except for assets disposedof since the date of such financial statements in the ordinary course ofbusiness or as otherwise permitted under Section 6.9 and except for suchdisposals or defects that neither individually nor in the aggregate couldreasonably be expected to have a Material Adverse Effect. All such propertiesand assets are free and clear of Liens, except Permitted Liens.

(b)   Real Estate. Schedule 4.13contains a true, accurate and complete list of (i) all Real Estate Assetslocated within the United States as of the Closing Date, (ii) all RealEstate Assets with a monthly lease payment of $10,000 or more located outsideof the United States as of November 30, 2004, (iii) all leases,subleases or assignments of leases (together with all amendments,modifications, supplements, renewals or extensions of any thereof) affectingeach Real Estate Asset of any Credit Party located in the United States as ofthe Closing Date, regardless of whether such Credit Party is the landlord ortenant (whether directly or as an assignee or successor in interest) under suchlease, sublease or assignment and (iv) all leases, subleases orassignments of leases (together with all amendments, modifications,supplements, renewals or extensions of any thereof) with a monthly leasepayment of $10,000 or more affecting each Real Estate Asset of any Credit Partylocated outside of the United States as of

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November 30, 2004, regardless ofwhether such Credit Party is the landlord or tenant (whether directly or as anassignee or successor in interest) under such lease, sublease or assignment. Eachagreement listed in clauses (iii) and (iv) of the immediatelypreceding sentence is in full force and effect and Holdings and itsSubsidiaries do not have knowledge of any default that has occurred and iscontinuing thereunder, and each such agreement constitutes the legally validand binding obligation of each applicable Credit Party, enforceable againstsuch Credit Party in accordance with its terms, except as enforcement may belimited by bankruptcy, insolvency, reorganization, moratorium or similar lawsrelating to or limiting creditors’ rights generally or by equitable principles.

4.14.  EnvironmentalMatters.  Except as set forth in Schedule 4.14:(i) neither Holdings nor any of its Subsidiaries nor any of theirrespective Facilities or operations have received a written order, consentdecree or settlement agreement that remains outstanding from any Personrelating to any Environmental Law in effect during the term of this Agreementor any Environmental Claim that, individually or in the aggregate, couldreasonably be expected to have a Material Adverse Effect; (ii) to Holdings’or its Subsidiaries’ knowledge, neither Holdings nor any of its Subsidiarieshas received any letter or request for information under Section 104of the Comprehensive Environmen­tal Response, Compensation, and Liability Act(42 U.S.C. § 9604) or any comparable state law; (iii) there are and,to each of Holdings’ and its Subsidiaries’ knowledge, there have been, noconditions, occurrences, or Hazardous Materials Activities which couldreasonably be expected to form the basis of an Environmental Claim againstHoldings or any of its Subsidiaries that, individually or in the aggregate,could reasonably be expected to have a Material Adverse Effect; (iv) neitherHoldings nor any of its Subsidiaries nor, to any Credit Party’s knowledge, anypredecessor of Holdings or any of its Subsidiaries has operated a facility totreat Hazardous Materials; (v) none of Holdings’ or any of itsSubsidiaries’ operations involves the generation, transportation, treatment,storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270or any state equivalent, except in compliance in all material respects withapplicable Environmental Laws; (vi) to Holdings’ or its Subsidiaries’knowledge, compliance with Environmental Laws could not be reasonably expectedto have, individually or in the aggregate, a Material Adverse Effect; (vii) toHoldings’ or its Subsidiaries’ knowledge, there exists no Release of HazardousMaterials at any Facility or any Hazardous Materials Activity in violation ofEnvironmental Laws, which individually or in the aggregate, could reasonably beexpected to have, a Material Adverse Effect.

4.15.  No Defaults.  NeitherHoldings nor any of its Subsidiaries is in default in the performance,observance or fulfillment of any of the obligations, covenants or conditions contained in any of itsContractual Obligations, and no condition exists which, with the giving ofnotice or the lapse of time or both, could constitute such a default, exceptwhere the consequences, direct or indirect, of such default or defaults, ifany, could not reasonably be expected to have a Material Adverse Effect.

 

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4.16.       Material Contracts. Schedule 4.16contains a true, correct and complete list of all the Material Contracts ineffect on the Closing Date, and except as described thereon, all such Material Contractsare in full force and effect and, to the knowledge of Holdings and itsSubsidiaries, no defaults currently exist thereunder.

4.17.       Governmental Regulation. Neither Holdingsnor any of its Subsidiaries is subject to regulation under the Federal PowerAct or the Investment Company Act of 1940 or under any other federalor state statute or regulation which may limit its ability to incurIndebtedness. Neither Holdings nor any of its Subsidiaries is a “registeredinvestment company” or a company “controlled” by a “registered investmentcompany” or a “principal underwriter” of a “registered investment company” assuch terms are defined in the Investment Company Act of 1940.

4.18.       Margin Stock. Neither Holdings nor any ofits Subsidiaries is engaged principally, or as one of its important activities,in the business of extending credit for the purposeof purchasing or carrying any Margin Stock. No part of the proceeds of theLoans made to such Credit Party will be used to purchase or carry any suchMargin Stock or to extend credit to others for the purpose of purchasing orcarrying any such Margin Stock or for any purpose that violates, or isinconsistent with, the provisions of Regulation T, U or X of said Board ofGovernors.

4.19.       Employee Matters. Neither Holdings nor anyof its Subsidiaries is engaged in any unfair labor practice that couldreasonably be expected to have a Material AdverseEffect. There is (a) no unfair labor practice complaint pending againstHoldings or any of its Subsidiaries, or to the knowledge of Holdings andCompany, threatened against any of them before the National Labor RelationsBoard and no grievance or arbitration proceeding arising out of or under anycollective bargaining agreement that is so pending against Holdings or any ofits Subsidiaries or to the knowledge of Holdings and Company, threatenedagainst any of them, (b) no strike or work stoppage in existence orthreatened involving Holdings or any of its Subsidiaries, and (c) to theknowledge of Holdings and Company, no union representation question existingwith respect to the employees of Holdings or any of its Subsidiaries and, tothe knowledge of Holdings and Company, no union organization activity that istaking place, except (with respect to any matter specified in clause (a), (b) or(c) above, either individually or in the aggregate) such as is notreasonably likely to have a Material Adverse Effect.

4.20.       Employee Benefit Plans. Holdings, each ofits Subsidiaries and each of their respective ERISA Affiliates are incompliance in all material respects with all applicable provisions andrequirements of ERISA and the Internal Revenue Code and the regulations andpublished interpretations thereunder with respect to each Employee BenefitPlan, and have performed all their obligations under each Employee Benefit Planin all material respects. Except as set forth on Schedule 4.20, each EmployeeBenefit Plan which is intended to qualify

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under Section 401(a) ofthe Internal Revenue Code has received a favorable determination letter fromthe Internal Revenue Service indicating that such Employee Benefit Plan is soqualified and nothing has occurred subsequent to the issuance of suchdetermination letter which would cause such Employee Benefit Plan to lose itsqualified status. No liability to the PBGC (other than required premium payments),the Internal Revenue Service, any Employee Benefit Plan or any trustestablished under Title IV of ERISA has been or is expected to be incurred byHoldings, any of its Subsidiaries or any of their ERISA Affiliates that, eitherindividually or in the aggregate, could reasonably be expected to have aMaterial Adverse Effect. No ERISA Event has occurred or is reasonably expectedto occur. Except to the extent required under Section 4980B of theInternal Revenue Code or similar state laws, no Employee Benefit Plan provideshealth or welfare benefits (through the purchase of insurance or otherwise) forany retired or former employee of Holdings, any of its Subsidiaries or any oftheir respective ERISA Affiliates (other than life insurance policies for terminatedemployees in the ordinary course of business consistent with past practice). Thepresent value of the aggregate benefit liabilities under each Pension Plansponsored, maintained or contributed to by Holdings, any of its Subsidiaries orany of their ERISA Affiliates, (determined as of the end of the most recentplan year on the basis of the actuarial assumptions specified for fundingpurposes in the most recent actuarial valuation for such Pension Plan), did notexceed the aggregate current value of the assets of such Pension Plan in anamount that could reasonably be expected to have a Material Adverse Effect. Asof the most recent valuation date for each Multiemployer Plan for which theactuarial report is available, none of Holdings, its Subsidiaries or theirrespective ERISA Affiliates would become subject to any material liabilityunder ERISA if Holdings, its Subsidiaries or any of their respective ERISAAffiliates were to withdraw completely (within the meaning of Section 4203of ERISA) from all Multiemployer Plans, based on information available pursuantto Section 4221(e) of ERISA. Holdings, each of its Subsidiaries andeach of their ERISA Affiliates have complied in all material respects with therequirements of Section 515 of ERISA with respect to each MultiemployerPlan and are not in material “default” (as defined in Section 4219(c)(5) ofERISA) with respect to payments to a Multiemployer Plan.

4.21.       Certain Fees. No broker’s or finder’s fee orcommission will be payable by or on behalf of Sponsor, Holdings or Company withrespect hereto or any of the transactionscontemplated hereby.

4.22.       Solvency. The Credit Parties, taken as awhole, are and, upon the incurrence of any Obligation by such Credit Parties onany date on which this representation andwarranty is made, will be, Solvent.

4.23.       Related Agreements.

(a)   Delivery. Holdings and Company havedelivered to Administrative Agent complete and correct copies of (i) eachRelated Agreement and of all exhibits and schedules

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thereto as of the Closing Date and (ii) copiesof any material amendment, restatement, supplement or other modification to orwaiver of each Related Agreement entered into after the Closing Date.

(b)   Representations and Warranties. Exceptto the extent otherwise expressly set forth in this Agreement or the applicableRelated Agreement or in the schedules to this Agreement or the applicableRelated Agreement, and subject to the qualifications set forth therein, each ofthe representations and warranties given by Holdings or Finance Sub in anyRelated Agreement is true and correct in all material respects as of theClosing Date (or as of any earlier date to which such representation andwarranty specifically relates). Notwithstanding anything in the RelatedAgreement to the contrary, the representations and warranties of Holdings setforth in this Section 4.23 shall, solely for purposes hereof, survive theClosing Date for the benefit of Lenders.

(c)   Governmental Approvals. Except as setforth on Schedule 4.23, as of the Closing Date, all Governmental Authorizationsand all other authorizations, approvals and consents of any other Personrequired by the Related Agreements or to consummate the Acquisition had beenobtained and were in full force and effect.

(d)   Conditions Precedent. On the ClosingDate, (i) all of the conditions to effecting or consummating thetransactions set forth in the Related Agreements have been duly satisfied or,with the consent of Administrative Agent, waived, and (ii) thetransactions contemplated by Related Agreements have been consummated inaccordance with the Related Agreements and all applicable laws.

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

4.25.       Disclosure. No representation or warranty ofany Credit Party contained in any Credit Document or in any other documents,certificates or written statements furnishedto Lenders by or on behalf of Holdings or any of its Subsidiaries for use inconnection with the transactions contemplated hereby contained (as of the datesuch Credit Document or other document, certificate or statement was sofurnished) any untrue statement of a material fact or omitted to state amaterial fact (known to Holdings or Company, in the case of any document notfurnished by either of them) necessary in order to make the statementscontained herein or

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therein (taken as awhole) not misleading in light of the circumstances in which the same were made.As of the Closing Date, there are no facts known (or which should upon thereasonable exercise of diligence be known) to Holdings or Company (other thanmatters of a general economic nature) that, individually or in the aggregate,could reasonably be expected to result in a Material Adverse Effect and thathave not been disclosed herein or in such other documents, certificates andstatements furnished to Lenders for use in connection with the transactionscontemplated hereby.

4.26.       PatriotAct. To the extent applicable, each Credit Party is in compliance,in all material respects, with the (i) Trading with the Enemy Act, asamended, and each of the foreign assetscontrol regulations of the United States Treasury Department (31 CFR, SubtitleB, Chapter V, as amended) and any other enabling legislation or executive orderrelating thereto, and (ii) Uniting and Strengthening America by ProvidingAppropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Actof 2001) (the “Act”). No part of the proceeds ofthe Loans will be used, directly or indirectly, for any payments to anygovernmental official or employee, political party, official of a politicalparty, candidate for political office, or anyone else acting in an officialcapacity, in order to obtain, retain or direct business or obtain any improperadvantage, in violation of the United States Foreign Corrupt Practices Act of1977, as amended.

SECTION 5.  AFFIRMATIVE COVENANTS

Each Credit Party covenants and agrees that so long as any Commitmentis in effect and until payment in full of all Obligations (other thancontingent indemnification Obligations) and cancellation or expiration orcash-collateralization, in a manner satisfactory to the Administrative Agent,of all Letters of Credit, each Credit Party shall perform, and shall cause eachof its Subsidiaries to perform, all covenants in this Section 5.

5.1.         Financial Statements and Other Reports. Holdingswill deliver to Administrative Agent, Lead Arrangers and Lenders:

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

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(b)   Quarterly Financial Statements. Assoon as available, and in any event within 45 days (or such shorter period inwhich Holdings or Company shall have filed its Quarterly Report on Form 10-Q)after the end of each of the first three Fiscal Quarters of each Fiscal Year,the consolidated and consolidating balance sheets of Company and itsSubsidiaries as at the end of such Fiscal Quarter and the related consolidated(and with respect to statements of income, consolidating) statements of income,stockholders’ equity and cash flows of Company and its Subsidiaries for suchFiscal Quarter and for the period from the beginning of the then current FiscalYear to the end of such Fiscal Quarter, setting forth in each case incomparative form the corresponding figures for the corresponding periods of theprevious Fiscal Year and the correspond­ing figures from the Financial Plan forthe current Fiscal Year, all in reasonable detail, together with a FinancialOfficer Certification and a Narrative Report with respect thereto;

(c)   Annual Financial Statements. As soonas available, and in any event within 90 days (or such shorter period in whichHoldings or Company shall have filed its Annual Report on Form 10-K)after the end of each Fiscal Year, (i) the consolidated and consolidatingbalance sheets of Company and its Subsidiaries as at the end of such FiscalYear and the related consolidated (and with respect to statements of income,consolidating) statements of income, stockholders’ equity and cash flows ofCompany and its Subsidiaries for such Fiscal Year, setting forth in each casein comparative form the corresponding figures for the previous Fiscal Year andthe corresponding figures from the Financial Plan for the Fiscal Year coveredby such financial statements, in reasonable detail, together with a FinancialOfficer Certification and a Narrative Report with respect thereto; and (ii) withrespect to such consolidated financial statements a report thereon of Deloitte &Touche LLP or other independent certified public accountants of recognizednational standing selected by Company, and reasonably satisfactory toAdministrative Agent (which report shall be unqualified as to going concern andscope of audit, and shall state that such consoli­dated financial statementsfairly present, in all material respects, the consolidated financial positionof Company and its Subsidiaries as at the dates indicated and the results oftheir operations and their cash flows for the periods indicat­ed in conformitywith GAAP applied on a basis consistent with prior years (except as otherwisedisclosed in such financial state­ments) and that the examination by suchaccountants in connection with such consolidated financial statements has beenmade in accordance with generally accepted auditing standards) together with awritten statement by such independent certified public accountants stating (1) thattheir audit examination has included a review of the terms of the CreditDocuments, (2) whether, in connection therewith, any condition or eventthat constitutes a Default or an Event of Default has come to their attentionand, if such a condition or event has come to their attention, specifying thenature and period of existence thereof, and (3) that nothing has come totheir attention that causes them to believe that the information contained inany Compliance Certificate is not correct or that the matters set forth in suchCompliance Certificate are not stated in accordance with the terms hereof;

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(d)   Compliance Certificate. Together witheach delivery of financial statements of Company and its Subsidiaries pursuantto Sections 5.1(b) and 5.1(c), a duly executed and completed ComplianceCertificate;

(e)   Statements of Reconciliation after Changein Accounting Principles. If, as a result of any change in accountingprinciples and policies from those used in the preparation of the HistoricalFinancial Statements, the consolidated financial statements of Company and itsSubsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) willdiffer in any material respect from the consolidated financial statements thatwould have been delivered pursuant to such subdivisions had no such change inaccounting principles and policies been made, then, together with the firstdelivery of such financial statements after such change, one or more statementsof reconciliation for the most recent prior financial statements in form andsubstance reasonably satisfactory to Administrative Agent;

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

(g)   Notice of Litigation. Promptly uponany senior officer of Holdings or Company obtaining knowledge of (i) theinstitution of, or non-frivolous written threat of, any AdverseProceeding not previously disclosed in writing by Company to Lenders, or (ii) anymaterial development in any Adverse Proceeding that, in the case of either (i) or(ii) if adversely determined, could be reasonably expected to have aMaterial Adverse Effect, or seeks to enjoin or otherwise prevent the consumma­tionof, or to recover any damages or obtain relief as a result of, the transactionscontemplated hereby, written notice thereof together with such otherinformation as may be reasonably available to Holdings or Company to enableLenders and their counsel to evaluate such matters;

(h)   ERISA. (i) Promptly upon becomingaware of the occurrence of any ERISA Event, a written notice specifying thenature thereof, what action Holdings, any of its Subsidiaries or any of theirrespective ERISA Affiliates has taken, is taking or proposes to take withrespect thereto and, when known, any action taken or threatened by the InternalRevenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) withreasonable

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promptness, copies of (1) eachSchedule B (Actuarial Information) to the annual report (Form 5500Series) filed by Holdings, any of its Subsidiaries or any of their respectiveERISA Affiliates with the Internal Revenue Service with respect to each PensionPlan; (2) all notices received by Holdings, any of its Subsidiaries or anyof their respective ERISA Affiliates from a Multiemployer Plan sponsorconcerning an ERISA Event; and (3) copies of such other documents orgovernmental reports or filings relating to any Employee Benefit Plan asAdministrative Agent shall reasonably request;

(i)   Financial Plan. As soon as practicableand in any event no later than thirty days after the beginning of each FiscalYear, a consolidated plan and financial forecast for such Fiscal Year and eachFiscal Year (or portion thereof) through the final maturity date of the Loans(a “FinancialPlan”),including (i) a forecasted consolidated balance sheet and forecastedconsolidated statements of income and cash flows of Holdings and itsSubsidiaries for each such Fiscal Year, together with pro forma ComplianceCertificates for each such Fiscal Year and an explanation of the assumptions onwhich such forecasts are based, (ii) forecasted consolidated statements ofincome and cash flows of Holdings and its Subsidiaries for each month of thefirst such Fiscal Year covered in such Financial Plan, (iii) forecasts demonstratingprojected compliance with the requirements of Section 6.8 through thefinal maturity date of the Loans and (iv) forecasts demonstrating adequateliquidity through the final maturity date of the Loans without giving effect toany additional debt or equity offerings not reflected in the Projections,together, in each case, with an explanation of the assumptions on which suchforecasts are based all in form and substance reasonably satisfactory toAgents;

(j)   Insurance Report. As soon as practicableand in any event by the last day of each Fiscal Year, a report in form andsubstance satisfactory to Administrative Agent outlining all material insurancecoverage maintained as of the date of such report by Holdings and itsSubsidiaries and all material insurance coverage planned to be maintained byHoldings and its Subsidiaries in the immediately succeeding Fiscal Year;

(k)   Notice of Change in Board of Directors.With reasonable promptness, written notice of any change in the Board ofDirectors of Holdings or Company;

(l)   Notice Regarding Material Contracts. Promptly,and in any event within ten Business Days (i) after any Material Contractof Holdings or any of its Subsidiaries is terminated or amended in a mannerthat could reasonably be expected to have a Material Adverse Effect or (ii) anynew Material Contract is entered into, a written statement describing suchevent, with copies of such material amendments or new contracts, delivered toAdministrative Agent (to the extent such delivery is permitted by the terms ofany such Material Contract, provided, no such prohibition on delivery shall beeffective if it were bargained for by Holdings or its applicable Subsidiarywith the intent of avoiding compliance with this Section 5.1(l)), and anexplanation of any actions being taken with respect thereto;

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(m)   Environmental Reports and Audits. Assoon as practicable following receipt thereof, copies of all environmentalaudits and reports with respect to environmental matters at any Facility orwhich relate to any environmental liabilities of Holdings or its Subsidiarieswhich, in any such case, individually or in the aggregate, could reasonably beexpected to result in a Material Adverse Effect;

(n)   Information Regarding Collateral.(a)  Company will furnish to Collateral Agent prompt written notice of anychange (i) in any Credit Party’s corporate name, (ii) in any CreditParty’s identity or corporate structure or (iii) in any Credit Party’sFederal Taxpayer Identification Number. Company agrees not to effect or permitany change referred to in the preceding sentence unless all filings have beenmade under the Uniform Commercial Code or otherwise that are required in orderfor Collateral Agent to continue at all times following such change to have avalid, legal and perfected security interest in all the Collateral ascontemplated in the Collateral Documents. Company also agrees promptly tonotify Collateral Agent if any material portion of the Collateral is damaged ordestroyed;

(o)   Annual Collateral Verification. Eachyear, at the time of delivery of annual financial statements with respect tothe preceding Fiscal Year pursuant to Section 5.1(c), Company shalldeliver to Collateral Agent an Officer’s Certificate (i) either confirmingthat there has been no change in such information since the date of theCollateral Questionnaire delivered on the Closing Date or the date of the mostrecent certificate delivered pursuant to this Section and/or identifyingsuch changes and (ii) certifying that all Uniform Commercial Codefinancing statements (including fixtures filings, as applicable) or otherappropriate filings, recordings or registrations, have been filed of record ineach governmental, municipal or other appropriate office in each jurisdiction identifiedin the Collateral Questionnaire or in the Officer’s Certificate updating suchCollateral Questionnaire pursuant to clause (i) above to the extentnecessary to protect and perfect the security interests under the CollateralDocuments for a period of not less than 18 months after the date of suchcertificate (except as noted therein with respect to any continuationstatements to be filed within such period);

(p)   Notices to or from Holders of SubordinatedIndebtedness. Copies of all notices, reports, certificates and otherinformation furnished to or received from any of the holders of SubordinatedIndebtedness or any other agent or representative of such holders (includingany notices or other documents relating to any default or potential default underthe Senior Subordinated Note Documents, but in any event excluding routinenotices, reports and certificates of an administrative nature), in each casepromptly after the same are so furnished or received; furthermore, on the dateof the occurrence thereof under the Senior Subordinated Note Documents, noticethat any or all of the obligations under the Senior Subordinated Note Documentshave been accelerated; and

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(q)   Other Information. (A) Promptlyupon their becoming available, copies of (i) all financial statements,reports, notices and proxy statements sent or made available generally byHoldings to its security holders (acting in such capacity) generally or by anySubsidiary of Holdings to its security holders other than Holdings or anotherSubsidiary of Holdings, (ii) all regular and periodic reports and allregistration statements and prospectuses, if any, filed by Holdings or any ofits Subsidiaries with any securities exchange or with the Securities andExchange Commission or any governmental or private regulatory authority, (iii) allpress releases and other statements made available generally by Holdings or anyof its Subsidiaries to the public concerning material developments in thebusiness of Holdings or any of its Subsidiaries, and (B) such otherinformation and data with respect to Holdings or any of its Subsidiaries asfrom time to time may be reasonably requested by Administrative Agent or anyLender.

5.2.         Existence. Except as otherwise permittedunder Section 6.9, each Credit Party will, and will cause each of itsSubsidiaries to, at all times preserve and keep in full force and effect (i) its existence and (ii) allrights and franchises, licenses and permits, except in the case of clause (ii) tothe extent that the failure to do so could not reasonably be expected to have aMaterial Adverse Effect; provided, no Credit Party or any of itsSubsidiaries shall be required to preserve any such existence, right,franchise, license or permit if such Person’s Board of Directors shalldetermine that the preservation thereof is no longer desirable in the conductof the business of such Person, and that the loss thereof will not materiallyand adversely affect such Person or the Lenders.

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

5.4.         Maintenance of Properties. Each CreditParty will, and will cause each of its Subsidiaries to, maintain or cause to bemaintained in good repair, working order and condition, ordinary wear andtear excepted, all material properties used or useful in the business of

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Holdings and itsSubsidiaries and from time to time will make or cause to be made allappropriate repairs, renewals and replacements thereof.

5.5.         Insurance. Holdings will maintain or causeto be maintained, with financially sound and reputable insurers, such publicliability insurance, third party property damageinsurance, business interruption insurance and casualty insurance with respectto liabilities, losses or damage in respect of the assets, properties andbusinesses of Holdings and its Subsidiaries as may customarily be carried ormaintained under similar circumstances by Persons of established reputationengaged in similar businesses, in each case in such amounts (giving effect toself-insurance), with such deductibles, covering such risks and otherwiseon such terms and conditions as shall be customary for such Persons. Withoutlimiting the generality of the foregoing, Holdings will maintain or cause to bemaintained (a) flood insurance with respect to each Flood Hazard Propertythat is located in a community that participates in the National FloodInsurance Program, in each case in compliance with any applicable regulationsof the Board of Governors of the Federal Reserve System, and (b) replacementvalue casualty insurance on the Collateral under such policies of insurance,with such insurance companies, in such amounts, with such deductibles, andcovering such risks as are at all times carried or maintained under similarcircumstances by Persons of established reputation engaged in similarbusinesses. Each such policy of insurance shall (i) name Collateral Agent,on behalf of Lenders, as an additional insured thereunder as its interests mayappear and (ii) in the case of each casualty insurance policy, contain aloss payable clause or endorsement, reasonably satisfactory in form and substanceto Collateral Agent, that names Collateral Agent, on behalf of Lenders, as theloss payee thereunder and provides for at least thirty days’ prior writtennotice to Collateral Agent of any modification or cancellation of such policy.

5.6.         Inspections. Each Credit Party will, andwill cause each of its Subsidiaries to, permit any authorized representativesdesignated by the Administrative Agent to visitand inspect any of the properties of any Credit Party and any of its respectiveSubsidiaries, to inspect, copy and take extracts from its and their financialand accounting records, and to discuss its and their affairs, finances andaccounts with its and their officers and independent public accountants, allupon prior reasonable notice and at such reasonable times during normalbusiness hours and as often as may reasonably be requested.

5.7.         Lenders Meetings. Holdings and Companywill, upon the request of Administrative Agent or Requisite Lenders,participate in a meeting of Administrative Agent and Lenders once during each Fiscal Yearto be held at Company’s corporate offices (or at such other location as may beagreed to by Company and Administrative Agent) at such time as may be agreed toby Company and Administrative Agent.

5.8.         Compliance with Laws. Each Credit Partywill comply, and shall cause each of its Subsidiaries and all other Persons, ifany, on or occupying any Facilities to comply,with the

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requirements of all applicable laws, rules,regulations and orders of any Governmental Authority (including allEnvironmental Laws), noncompliance with which could reasonably be expected tohave, individually or in the aggregate, a Material Adverse Effect.

 

5.9.         Environmental.

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

(i)   promptlyupon the occurrence thereof, written notice describing in reasonable detail (1) anyRelease required to be reported to any federal, state or local governmental orregulatory agency under any applicable Environmental Laws, (2) any remedialaction taken by Holdings or any other Person in response to (A) anyHazardous Materials Activities the existence of which could reasonably beexpected to result in one or more Environmental Claims  which, individually or in the aggregate,could reasonably be expected to have a Material Adverse Effect, or (B) anyEnvironmental Claims that, individually or in the aggregate, could reasonablybe expected to result in a Material Adverse Effect;

(ii)   as soon aspracticable following the sending or receipt thereof by Holdings or any of itsSubsidiaries, a copy of any and all written communications with respect to (1) anyEnvironmental Claims that, individually or in the aggregate, could reasonablybe expected to result in a Material Adverse Effect, (2) any Releaserequired to be reported to any federal, state or local governmental orregulatory agency, and (3) any written request for information from anygovernmental agency identifying Holdings or any of its Subsidiaries aspotentially responsible for any Hazardous Materials Activity;

(iii)   promptwritten notice describing in reasonable detail (1) any proposedacquisition of stock, assets, or property by Holdings or any of itsSubsidiaries that could reasonably be expected to (A) expose Holdings orany of its Subsidiaries to, or result in, Environmental Claims that couldreasonably be expected to have, individually or in the aggregate, a MaterialAdverse Effect or (B) affect the ability of Holdings or any of itsSubsidiaries to maintain in full force and effect all material GovernmentalAuthorizations required under any Environmental Laws for their respectiveoperations and (2) any proposed action to be taken by Holdings or any ofits Subsidiaries to modify current operations in a manner that could reasonablybe expected to subject Holdings or any of its Subsidiaries to any additionalobligations or requirements under any Environmental Laws that would bereasonably expected to have a Material Adverse Effect; and

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(iv)   withreasonable promptness, such other documents and information as from time totime may be reasonably requested by Administrative Agent in relation to anymatters disclosed pursuant to this Section 5.9.

(b)   Hazardous Materials Activities, Etc. EachCredit Party shall promptly take, and shall cause each of its Subsidiariespromptly to take, any and all actions reasonably necessary to (i) cure anyviolation of applicable Environmental Laws by such Credit Party or itsSubsidiaries that could reasonably be expected to have, individually or in theaggregate, a Material Adverse Effect, and (ii) make an appropriateresponse to any Environmental Claim against such Credit Party or any of itsSubsidiaries and discharge any obligations it may have to any Person thereunderwhere failure to do so could reasonably be expected to have, individually or inthe aggregate, a Material Adverse Effect.

5.10.       Subsidiaries. In the event that any Personbecomes a Domestic Subsidiary of Company, Company shall (a) promptly causesuch Domestic Subsidiary to become aGuarantor hereunder and a Grantor under the Pledge and Security Agreement byexecuting and delivering to Administrative Agent and Collateral Agent aCounterpart Agreement, and (b) take all such actions and execute anddeliver, or cause to be executed and delivered, all such documents,instruments, agreements, and certificates as are similar to those described inSections 3.1(b), 3.1(i), and 3.1(l). In the event that any Person becomes aForeign Subsidiary of Company, and the ownership interests of such ForeignSubsidiary are owned by Company or by any Domestic Subsidiary thereof, Companyshall, or shall cause such Domestic Subsidiary to, deliver all such documents,instruments, agreements, and certificates as are similar to those described in Section 3.1(b)(i),(iv) and (v), and Company shall take, or shall cause such DomesticSubsidiary to take, all of the actions referred to in Section 3.1(i)(i) necessaryto grant and to perfect a First Priority Lien in favor of Collateral Agent, forthe benefit of Secured Parties, under the Pledge and Security Agreement in 65%of such ownership interests. With respect to each such Subsidiary, Companyshall promptly send to Administrative Agent written notice setting forth withrespect to such Person (i) the date on which such Person became aSubsidiary of Company, and (ii) all of the data required to be set forthin Schedules 4.1 and 4.2 with respect to Subsidiaries of Company; provided,such written notice shall be deemed to supplement Schedules 4.1 and 4.2for all purposes hereof.

5.11.       Additional Material Real Estate Assets. Inthe event that any Credit Party acquires a Material Real Estate Asset, or aReal Estate Asset owned or leased on the Closing Date becomes aMaterial Real Estate Asset, and such interest has not otherwise been madesubject to the Lien of the Collateral Documents in favor of Collateral Agent,for the benefit of Secured Parties, then such Credit Party, promptly but in anyevent not more than 60 days (i) after acquiring such Material Real EstateAsset (in the case of any Material Real Estate Asset owned by a Credit Party)or (ii) after request by the Collateral Agent (in the case of any MaterialReal Estate Asset leased by a Credit Party), shall take all such actions andexecute and deliver, or

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cause to be executed anddelivered, all such mortgages, documents, instruments, agreements, titlepolicies, landlord waivers and/or estoppels, reports, opinions andcertificates, which may include items similar to those described in Sections3.1(i) and 3.1(j), with respect to each such Material Real Estate Assetthat Collateral Agent shall reasonably request to create in favor of CollateralAgent, for the benefit of Secured Parties, a valid and, subject to any filingand/or recording referred to herein, perfected First Priority Lien in suchMaterial Real Estate Assets. In addition to the foregoing, Company shall, atthe request of Requisite Lenders, deliver, from time to time, to AdministrativeAgent such appraisals as are required by law or regulation of Real Estate Assetswith respect to which Collateral Agent has been granted a Lien.

5.12.       Interest Rate Protection. No later than 90days following the Closing Date and at all times thereafter, Company shallmaintain, or caused to be maintained, in effect one or more Interest RateAgreements for a term of not less than three years and otherwise in form andsubstance reasonably satisfactory to Administrative Agent, which Interest RateAgreements shall effectively limit the Unadjusted Eurodollar Rate Component ofthe interest costs to Company with respect to an aggregate notional principalamount of not less than 50% of the aggregate principal amount of Term Loansoutstanding from time to time (based on the assumption that such notionalprincipal amount was a Eurodollar Rate Loan with an Interest Period of threemonths).

5.13.       Further Assurances. At any time or from timeto time upon the request of Administrative Agent, each Credit Party will, atits expense, promptly execute, acknowledgeand deliver such further documents and do such other acts and things asAdministrative Agent or Collateral Agent may reasonably request in order toeffect fully the purposes of the Credit Documents. In furtherance and not inlimitation of the foregoing, each Credit Party shall take such actions asAdministrative Agent or Collateral Agent may reasonably request from time totime to ensure that the Obligations are guarantied by the Guarantors and aresecured by substantially all of the assets of Holdings and its DomesticSubsidiaries and all of the outstanding Capital Stock of Company and itsDomestic Subsidiaries and first-tier Foreign Subsidiaries (subject tolimitations contained in the Credit Documents with respect to ForeignSubsidiaries).

5.14.       Non-Consolidation. Unless otherwise consentedto by Agents or Requisite Lenders, Holdings will and will cause each of itsSubsidiaries to:  (i)  maintainentity records and books of accountseparate from those of any other entity which is an Affiliate of such entity; (ii) notcommingle its funds or assets with those of any other entity which is anAffiliate of such entity (except pursuant to cash management systems reasonablyacceptable to the Administrative Agent); and (iii) provide that its Boardof Directors or other analogous governing body will hold all appropriatemeetings to authorize and approve such entity’s actions, which meetings will beseparate from those of other entities.

 

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SECTION 6.  NEGATIVE COVENANTS

Each Credit Party covenants and agrees that, so long as any Commitmentis in effect and until payment in full of all Obligations (other thancontingent indemnification Obligations) and cancellation or expiration orcash-collateralization, in a manner satisfactory to the Administrative Agent,of all Letters of Credit, such Credit Party shall perform, and shall cause eachof its Subsidiaries to perform, all covenants in this Section 6.

6.1.   Indebtedness.No Credit Party shall, nor shall it permit any of itsSubsidiaries to, directly or indirectly, create, incur, assume or guaranty, orotherwise become or remain directly orindirectly liable with respect to any Indebtedness, except:

(a)   the Obligations;

(b)   (i) Indebtedness of any GuarantorSubsidiary to Company or to any other Guarantor Subsidiary, or of Company toany Guarantor Subsidiary; (ii) Indebtedness of any Subsidiary of Companythat is not a Guarantor to Company or any Subsidiary of Company in an aggregateprincipal amount that, together withIndebtedness under the proviso of Section 6.1(h), does not exceed$7,500,000 at any time; and (iii) Indebtedness of Company or any GuarantorSubsidiary to any Subsidiary of Company that is not a Guarantor; provided,(A) all such Indebtedness under this clause (b) shall be evidenced bypromissory notes and all such notes shall be subject to a First Priority Lienpursuant to the Pledge and Security Agreement (except to the extent that theIndebtedness is owed to a Foreign Subsidiary), (B) all such Indebtednessshall be unsecured and subordinated in right of payment to the payment in fullof the Obligations pursuant to the terms of the applicable promissory notes oran intercompany subordination agreement that in any such case, is reasonablysatisfactory to Administrative Agent, and (C) any payment by any suchGuarantor Subsidiary under any guaranty of the Obligations shall result in apro tanto reduction of the amount of any Indebtedness owed by such Subsidiaryto Company or to any of its Subsidiaries for whose benefit such payment ismade;

(c)   the Senior Subordinated Notes in an aggregateprincipal amount not to exceed $320,000,000;

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

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

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

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

(h)   guaranties by Company of Indebtedness of aSubsidiary and guaranties by a Subsidiary of Company of Indebtedness of Companyor a Subsidiary of Company with respect to, in each case, Indebtednessotherwise permitted to be incurred pursuant to this Section 6.1; provided,that the aggregate amount of Indebtedness of Subsidiaries of Company that arenot Guarantors which has been guaranteed by Company and the GuarantorSubsidiaries, together with Indebtedness underclause (b)(ii), shall not exceed $7,500,000 at any time;

(i)   Existing Indebtedness not refinanced on theClosing Date;

(j)   Indebtedness with respect to Capital Leasesand purchase money Indebtedness in an aggregate amount not to exceed at anytime $25,000,000; provided, any such Indebtedness (i) shall besecured only by the asset acquired in connection with the incurrence of suchIndebtedness, and (ii) shall constitute not less than 95% of the aggregateconsideration paid with respect to such asset;

(k)   Indebtedness in an amount not to exceed$10,000,000 in the aggregate at any time outstanding (i) consisting ofSubordinated Indebtedness issued to a seller in connection with a PermittedAcquisition or (ii) incurred or assumed byCompany and its Subsidiaries as a result of Permitted Acquisitions (A) thatis unsecured or secured only by collateral consisting of property, plant andequipment of the acquired business or entity that was provided by such businessor entity prior to the consummation of any such Permitted Acquisition and (B) thatwas not incurred in anticipation of any such Permitted Acquisition;

(l)   Indebtednessunder Hedge Agreements required pursuant to, and entered into in accordancewith, Section 5.12 or other Interest Rate Agreements or CurrencyAgreements entered into in the ordinary course of business and not forspeculative purposes;

(m)   obligations on account of non-currentaccounts payable which the applicable Credit Party is contesting in good faithand by appropriate proceedings diligently conducted and with respect to whichadequate reserves have been established and are being maintained in accordancewith GAAP;

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(n)   other unsecured Indebtedness of Holdings andits Subsidiaries, which is subordinated to the Obligations in a mannersatisfactory to Administrative Agent in an aggregate amount not to exceed atany time $15,000,000;

(o)   Indebtedness incurred by Foreign Subsidiariesof Company in an aggregate principal amount not exceeding $5,000,000 at anytime; and

(p)   any extensions, renewals, refinancings orreplacements of Indebtedness described in subsection (c)(i), (i), (j) or (l) above,including renewals and extensions expressly provided for in the agreementsevidencing any such Indebtedness as the same are in effect on the Closing Date;provided that such extensions, renewals, refinancings and replacementsof any such Indebtedness shall be permitted only so long as the covenants,events of default, subordination and other provisions thereof (including anyguarantees thereof) are not less favorable to the obligor thereon or to theLenders than the Indebtedness being extended, renewed refinanced or replaced,and the average life to maturity thereof is greater than or equal to that ofthe Indebtedness being extended, renewed refinanced or replaced; provided,further, such Indebtedness permitted under this subsection (p) shallnot (i) include Indebtedness of an obligor that was not an obligor withrespect to the Indebtedness being extended, renewed, refinanced or replaced, (ii) exceedin principal amount the Indebtedness being renewed, extended, refinanced orreplaced (plus accrued interest thereon and premium, if any) or (iii) beincurred, created or assumed if any Default or Event of Default has occurredand is continuing or would result therefrom.

6.2.   Liens. No Credit Party shall, nor shall it permit any of itsSubsidiaries to, directly or indirectly, create, incur, assume or permit toexist any Lien on or with respect to anyproperty or asset of any kind (including any document or instrument in respectof goods or accounts receivable) of Holdings or any of its Subsidiaries,whether now owned or hereafter acquired, or any income or profits therefrom, orfile or permit the filing of, or permit to remain in effect, any financingstatement or other similar notice of any Lien with respect to any suchproperty, asset, income or profits under the UCC of any State or under anysimilar recording or notice statute, except:

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

(b)   Liens for Taxes that are not yet required tobe paid pursuant to Section 5.3;

(c)   statutory Liens of landlords, carriers,warehousemen, mechanics, repairmen, workmen and materialmen, and other Liensimposed by law (other than any such Lien imposed pursuant to Section 401(a)(29)or 412(n) of the Internal Revenue Code or by ERISA), in each case incurredin the ordinary course of business (i) for amounts not yet overdue or (ii) for

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amounts that are overdue and that (inthe case of any such amounts overdue for a period in excess of fifteen days)are being contested in good faith by appropriate proceedings, so long as suchreserves or other appropriate provisions, if any, as shall be required by GAAPshall have been made for any such contested amounts;

(d)   Liens incurred in the ordinary course ofbusiness in connection with workers’ compensation, unemployment insurance andother types of social security, or to secure the performance of tenders,statutory obligations, surety and appeal bonds, bids, leases, governmentcontracts, trade contracts, performance and return-of-money bondsand other similar obligations (exclusive of obligations for the payment ofborrowed money or other Indebtedness), so long as no foreclosure, sale orsimilar proceedings have been commenced with respect to any portion of theCollateral on account thereof;

(e)   easements, rights-of-way,restrictions, encroachments, and other minor defects or irregularities intitle, in each case which do not and will not interfere in any material respectwith the ordinary conduct of the business of Holdings or any of itsSubsidiaries;

(f)   any interest or title of a lessor orsublessor under any lease of real or personal property which is not a CapitalLease;

(g)   Liens solely on any cash earnest moneydeposits made by Holdings or any of its Subsidiaries in connection with anyletter of intent or purchase agreement for a Permitted Acquisition;

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

(i)   Liens in favor of customs and revenueauthorities or freight handlers or forwarders to secure payment of customsduties in connection with the importation of goods;

(j)   any zoning or similar law or right reservedto or vested in any Governmental Authority;

(k)   licenses and sublicenses of patents,trademarks and other intellectual property rights granted by Holdings or any ofits Subsidiaries in the ordinary course of business and not interfering in anyrespect with the ordinary conduct of the business of Company or suchSubsidiary;

(l)   Liens described in Schedule 6.2 or on atitle report delivered with respect to any Real Estate Asset subject to aMortgage;

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(m)   Liens securing Indebtedness permittedpursuant to Section 6.1(j); provided, any such Lien shall encumberonly the asset acquired, constructed or improved with the proceeds of suchIndebtedness and substitutions and replacements thereof and accessions andattachments thereto, and extensions, renewals and replacements of such Liens; provided,that any extension, renewal or replacement is no more restrictive in anymaterial respect than the Liens so extended, renewed or replaced and does notextent to any additional property or assets;

(n)   anyattachment or judgment Lien not constituting an Event of Default under Section 8.1(h);

(o)   customarysecurity deposits under operating leases in the ordinary course of business;

(p)   customaryrights of set off, bankers’ lien, refund or charge back under depositagreements, the Uniform Commercial Code or common law of banks or other financialinstitutions where Company or any of its Subsidiaries maintains deposits (otherthan deposits intended as cash collateral) in the ordinary course of business;

(q)   any leasesor subleases granted to others in the ordinary course of business of Companyand its Subsidiaries not interfering in any material respect with the businessof Company and its Subsidiaries;

(r)   Liens tosecure Indebtedness permitted by Sections 6.1(i) and 6.1(o);

(s)   Liens inconnection with permitted repurchase obligations;

(t)   Liens upon specific items of inventory orother goods and proceeds of any Person securing such Person’s obligations inrespect of bankers’ acceptances issued or created for the account of suchPerson to facilitate the purchase, shipment or storage of such inventory orother goods;

(u)   Liens in favor of any Credit Party;

(v)   (i) Liens on property, plant and equipment of a Person existing at the time suchPerson is merged with or into or consolidated with Holdings or a Subsidiarythereof; provided, that such Liens were in existence prior to and werenot incurred in connection with or in contemplation of such merger orconsolidation and do not extend to any assets other than those of the Personmerged into or consolidated with Holdings or such Subsidiary and (ii) extensions,renewals and replacements of any Liens set forth in clause (i) of thissubsection (v); provided, that any such extension, renewal orreplacement is no more restrictive in any material

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respect than the Lien so extended,renewed or replaced and does not extend to any additional property or assets;

(w)   (i) Liens on property, plant and equipment existing at the time of acquisitionthereof by Holdings or any Subsidiary of Holdings, provided, that suchLiens were in existence prior to such acquisition and not incurred incontemplation of such acquisition and (ii) extensions, renewals andreplacements of any Liens set forth in clause (i) of this subsection (w); provided,that any such extension, renewal or replacement is no more restrictive in anymaterial respect than the Lien so extended, renewed or replaced and does notextend to any additional property or assets; and

(x)   other Liens on assets other than theCollateral securing Indebtedness in an aggregate amount not to exceed $1,000,000at any time outstanding.

6.3.   Equitable Lien. If any Credit Party or any of itsSubsidiaries shall create or assume any Lien upon any of its properties orassets, whether now owned or hereafter acquired,other than Permitted Liens, it shall make or cause to be made effectiveprovisions whereby the Obligations will be secured by such Lien equally andratably with any and all other Indebtedness secured thereby as long as any suchIndebtedness shall be so secured; provided, notwithstanding the foregoing,this covenant shall not be construed as a consent by Requisite Lenders to thecreation or assumption of any such Lien not otherwise permitted hereby.

6.4.   No Further Negative Pledges. Except with respect to (a) specificproperty encumbered to secure payment of particular Indebtedness or to be soldpursuant to an executedagreement with respect to a permitted sale or other disposition of assets orproperty, (b) the Senior Subordinated Note Documents as in effect on theClosing Date, and (c) restrictions by reason of customary provisionsrestricting assignments, subletting or other transfers contained in leases,licenses and similar agreements entered into in the ordinary course of business(provided that such restrictions are limited to the property or assets securedby such Liens or the property or assets subject to such leases, licenses orsimilar agreements, as the case may be), no Credit Party nor any of itsSubsidiaries shall enter into any agreement prohibiting the creation orassumption of any Lien upon any of its properties or assets, whether now ownedor hereafter acquired.

6.5.   Restricted Junior Payments. No Credit Party shall, nor shallit permit any of its Subsidiaries or Affiliates through any manner or means orthrough any other Person to,directly or indirectly, declare, order, pay, make or set apart, or agree todeclare, order, pay, make or set apart, any sum for any Restricted JuniorPayment except that:

(a)   Company may make regularly scheduled paymentsof interest in respect of the Senior Subordinated Notes and any otherSubordinated Indebtedness in accordance with the

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terms of, and only to the extentrequired by, and subject to the subordination provisions contained in, theindenture or other agreement pursuant to which such Subordinated Indebtednesswas issued;

(b)   so long as no Default or Event of Defaultshall have occurred and be continuing or shall be caused thereby, Company maymake Restricted Junior Payments to Holdings (i) in an aggregate amount notto exceed $750,000 in any Fiscal Year, to the extent necessary to permitHoldings or its parent entity to pay general administrative costs and expensesand out-of-pocket legal, accounting and filing and other general corporateoverhead costs of Holdings or its parent entity actually incurred by Holdingsor its parent entity and (ii) to the extent necessary to permit Holdingsto discharge the consolidated tax liabilities of Holdings and its Subsidiariesand to pay franchise taxes and other fees required to maintain its existence,in each case so long as Holdings applies the amount of any such RestrictedJunior Payment for such purpose;

(c)   Subsidiariesof Company may make Restricted Junior Payments (i) to Company or to anyparent entity of such Subsidiary which is a Subsidiary and (ii) on a prorata basis to the other equity holders of such Subsidiary;

(d)   solong as no Default or Event of Default shall have occurred and be continuing orshall be caused thereby, the Company may repurchase, redeem or otherwiseacquire or retire for value any Capital Stock of the Company or any of itsSubsidiaries held by any current or former officer, director, consultant oremployee of the Company or any of its Subsidiaries, or his or her estate,spouse, former spouse, or family member (or pay principal or interest on anyIndebtedness issued in connection with such repurchase, redemption or otheracquisition) and may make Restricted Junior Payments to Holdings utilized forthe repurchase, redemption or other acquisition or retirement for value of anyCapital Stock of Holdings held by any current or former officer, director,employee or consultant of the Company or any of its Subsidiaries, or his or herestate, spouse, former spouse, or family member (or for the payment ofprincipal or interest on any Indebtedness issued in connection with suchrepurchase, redemption or other acquisition) in each case, pursuant toany equity subscription agreement, stock option agreement, shareholders’agreement or similar agreement or benefit plan of any kind; provided thatthe aggregate price paid for all such repurchased, redeemed, acquired orretired Equity Interests may not exceed $1,000,000 in any calendaryear period (with unused amounts in any immediately preceding calendar yearbeing carried over to the succeeding calendar year subject to a maximumcarry-over amount of $2,000,000 in any calendar year); provided further, thatsuch amount in any calendar year may be increased by an amount not to exceed:

(i)   to the extent of any such proceedsthat are not required to be applied to prepay Loans in accordance with Section 2.14,the cash proceeds from the sale of Capital Stock of Company and, to theextent contributed to Company as common equity

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capital, Capital Stock of any of Company’s director indirect parent entities, in each case to members of management, directorsor consultants of Company, any of its Subsidiaries or any of its direct orindirect parent entities that occurs after the Closing Date, plus

(ii)   the cash proceeds of key person lifeinsurance policies received by Company and its Subsidiaries after the ClosingDate, less

(iii)   the amount of any payments previously madepursuant to clauses (i) and (ii) of this clause (d);

(e)   Company and its Subsidiaries may redeem orrepurchase Capital Stock in exchange for Capital Stock or with the proceeds ofa substantially contemporaneous sale of Capital Stock, or a substantiallycontemporaneous receipt of a capital contribution, to the extent of any suchproceeds that are not required to be applied to prepay Loans in accordance withSection 2.14;

(f)   Company and its Subsidiaries may repay,repurchase, redeem or otherwise acquire for value any Subordinated Indebtednesswith the proceeds of Indebtedness permitted by Section 6.1(n) or (p) orwith the proceeds of a substantially contemporaneous sale of Capital Stock, ora substantially contemporaneous receipt of a capital contribution, to theextent of any such proceeds that are not required to be applied to prepay Loansin accordance with Section 2.14;

(g)   Company and its Subsidiaries may repurchaseCapital Stock which repurchase is deemed to occur upon any “cashless” exerciseof stock options, warrants or other convertible securities;

(h)   the redemption, repurchase or otheracquisition for value of any Capital Stock of any Foreign Subsidiary that isheld by any Person that is not an Affiliate of Company to the extent requiredby applicable laws, rules or regulations; provided that the amount of anysuch redemptions, repurchases or other acquisitions shall not exceed $5,000,000during the term of this Agreement; and

(i)   so long as no Default or Event of Defaultshall have occurred and be continuing or shall be caused thereby, Holdings maydeclare and pay dividends to the holders of its Capital Stock and repurchase,redeem or otherwise acquire for value any Capital Stock of Holdings(collectively, “share repurchases”), and Company may pay dividends to Holdingsfor such purpose, if after giving effect to such dividend or share repurchase,the aggregate amount of such dividends and share repurchases during the term ofthis Agreement does not exceed (i) $10,000,000 plus (ii) so long asthe Leverage Ratio is less than 3.25:1.00 on a pro forma basis after givingeffect to such dividend or share repurchase, 25% of the Consolidated ExcessCash

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Flow for each Fiscal Year of Companyended prior to the date of such dividend or share repurchase on a cumulativebasis (commencing with the Fiscal Year ended March 31, 2006).

6.6.   Restrictions on Subsidiary Distributions. Except as providedherein, no Credit Party shall, nor shall it permit any of its Subsidiaries to,create or otherwise cause or sufferto exist or become effective any consensual encumbrance or restriction of any kindon the ability of any Subsidiary of Company to (a) pay dividends or makeany other distributions on any of such Subsidiary’s Capital Stock owned byCompany or any other Subsidiary of Company, (b) repay or prepay anyIndebtedness owed by such Subsidiary to Company or any other Subsidiary ofCompany, (c) make loans or advances to Company or any other Subsidiary ofCompany, or (d) transfer any of its property or assets to Company or anyother Subsidiary of Company other than restrictions (i) existing underthis Agreement, (ii) in the Senior Subordinated Note Documents as ineffect on the Closing Date or as modified in accordance with this Agreement, (iii) inagreements evidencing Indebtedness permitted by Section 6.1(j) thatimpose restrictions on the property so acquired, (iv) by reason ofcustomary provisions restricting assignments, subletting or other transferscontained in leases, licenses, joint venture agreements and similar agreementsotherwise permitted hereunder, (v) arising under applicable laws, rules,regulations or orders, (vi) that are or were created by virtue of anytransfer of, agreement to transfer or option or right with respect to anyproperty, assets or Capital Stock not otherwise prohibited under thisAgreement, (vii) any instrument governing Indebtedness or Capital Stock ofa Person acquired by Company and its Subsidiaries as in effect at the time ofsuch acquisition (except to the extent such Indebtedness or Capital Stock wasincurred or issued in connection with or in contemplation of such acquisition),which encumbrance or restriction is not applicable to any Person, or theproperties or assets of any Person, other than the Person or property or assetsof the Person so acquired; provided that, in the case of Indebtedness,such Indebtedness was permitted by the terms of this Agreement to be incurred, (viii) inagreements set forth on Schedule 6.6, (ix) provisions in agreements orinstruments that prohibit the payment of dividends or the making of otherdistributions with respect to Capital Stock other than on a pro rata basis and (x) imposedby any amendments, modifications restatements, renewals, increases,supplements, refundings, replacements or refinancings of the contracts,instruments or obligations referred to in clauses (i) through (ix) above;provided that the encumbrances orrestrictions in such amendments, modifications, restatements, renewals,increases, supplements, refundings, replacements or refinancings are notmaterially more restrictive, in the good faith judgment of the Board ofDirectors of Holdings, taken as a whole, than the encumbrances or restrictionsprior to such amendment, modification, restatement, renewal, increase,supplement, refunding, replacement or refinancing.

6.7.   Investments. No Credit Party shall, nor shall it permit anyof its Subsidiaries to, directly or indirectly, make or own any Investment inany Person, including without limitationany Joint Venture, except:

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(a)   Investments in Cash and Cash Equivalents;

(b)   (i) Investments owned as of the ClosingDate in any Subsidiary; (ii) Investments made after the Closing Date inany Guarantor Subsidiary; and (iii) Investments made after the ClosingDate in any Subsidiary of Company that is not a Guarantor in an aggregateamount, together with any sales, leases, licenses and other dispositions ofassets permitted under Section 6.9(b), not to exceed $7,500,000 at anytime;

(c)   Investments (i) received in satisfactionor partial satisfaction of delinquent accounts and disputes with customers orsuppliers of such Person in the ordinary course of business; (ii) acquiredas a result of foreclosure of a Lien securing an Investment or the transfer ofthe assets subject to such Lien in lieu of foreclosure and (iii) consistingof deposits, prepayments and other credits to suppliers made in the ordinarycourse of business consistent with the past practices of Holdings and itsSubsidiaries;

(d)   intercompany loans to the extent permittedunder Section 6.1(b);

(e)   Consolidated Capital Expenditures permittedby Section 6.8(c);

(f)   loans and advances to employees of Holdingsand its Subsidiaries made in the ordinary course of business in an aggregateprincipal amount not to exceed $1,000,000 in the aggregate at any time; andpayroll, travel and similar advances to employees to cover matters that areexpected at the time of such advances ultimately to be treated as expenses foraccounting purposes and that are made in the ordinary course of business;

(g)   Investments made in connection with PermittedAcquisitions permitted pursuant to Section 6.9;

(h)   Investments described in Schedule 6.7;

(i)   extensions of credit to customers oradvances, deposits and payment to or with suppliers, lessors or utilities orfor workers’ compensation, in each case, in the ordinary course of businessthat are recorded as accounts receivable, prepaid expenses or deposits on thebalance sheet of the Company and its Subsidiaries prepared in accordance withGAAP;

(j)   Investmentsconstituting non-Cash consideration received by Company or any of itsSubsidiaries in connection with permitted Asset Sales and other sales anddispositions permitted under Section 6.9;

(k)   Investmentsunder Hedge Agreements to the extent permitted under Section 6.1;

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(l)   Investmentsconsisting of loans by Company to Holdings for purposes otherwise permittedunder Section 6.5 to be distributed to Holdings;

(m)   Investmentsin joint ventures having an aggregate value (measured on the date each suchInvestment was made and without giving effect to subsequent changes in value),when taken together with all other Investments made pursuant to this clause (m) sincethe Closing Date, not to exceed $20,000,000; provided that the CapitalStock of any joint venture created or acquired after the Closing Date owned bythe Company or any of its Subsidiaries shall be pledged to the CollateralAgent; and

(n)   other Investments in an aggregate amount notto exceed at any time $5,000,000.

Notwithstanding the foregoing, in noevent shall any Credit Party make any Investment which results in orfacilitates in any manner any Restricted Junior Payment not otherwise permittedunder the terms of Section 6.5.

6.8.   Financial Covenants.

(a)   Interest Coverage Ratio. Company shallnot permit the Interest Coverage Ratio as of the last day of any FiscalQuarter, beginning with the first Fiscal Quarter of the Fiscal Year ending in2006 (“FQ1 2006”), to be less than the correlativeratio indicated: 

Fiscal
Quarter

 

Interest
Coverage Ratio

 

FQ1 2006

 

2.00:1.00

 

FQ2 2006

 

2.00:1.00

 

FQ3 2006

 

2.00:1.00

 

FQ4 2006

 

2.00:1.00

 

FQ1 2007

 

2.05:1.00

 

FQ2 2007

 

2.10:1.00

 

FQ3 2007

 

2.20:1.00

 

FQ4 2007

 

2.30:1.00

 

FQ1 2008

 

2.50:1.00

 

FQ2 2008

 

2.50:1.00

 

FQ3 2008

 

2.50:1.00

 

 

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Fiscal
Quarter

 

Interest
Coverage Ratio

 

FQ4 2008

 

2.50:1.00

 

FQ1 2009

 

2.75:1.00

 

FQ2 2009

 

2.75:1.00

 

FQ3 2009

 

2.75:1.00

 

FQ4 2009

 

2.75:1.00

 

FQ1 2010

 

3.00:1.00

 

FQ2 2010

 

3.00:1.00

 

FQ3 2010

 

3.00:1.00

 

FQ4 2010

 

3.00:1.00

 

FQ1 2011

 

3.20:1.00

 

FQ2 2011

 

3.20:1.00

 

FQ3 2011 and thereafter

 

3.20:1.00

 

 

(b)   Leverage Ratio. Company shall notpermit the Leverage Ratio as of the last day of any Fiscal Quarter, beginningwith the first Fiscal Quarter of the Fiscal Year ending in 2006 (“FQ1 2006”), to exceed the correlative ratioindicated:

Fiscal
Quarter

 

Leverage Ratio

 

FQ1 2006

 

6.00:1.00

 

FQ2 2006

 

6.00:1.00

 

FQ3 2006

 

6.00:1.00

 

FQ4 2006

 

6.00:1.00

 

FQ1 2007

 

5.75:1.00

 

FQ2 2007

 

5.50:1.00

 

FQ3 2007

 

5.25:1.00

 

FQ4 2007

 

5.00:1.00

 

FQ1 2008

 

4.50:1.00

 

 

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Fiscal
Quarter

 

Leverage Ratio

 

FQ2 2008

 

4.50:1.00

 

FQ3 2008

 

4.50:1.00

 

FQ4 2008

 

4.50:1.00

 

FQ1 2009

 

4.00:1.00

 

FQ2 2009

 

4.00:1.00

 

FQ3 2009

 

4.00:1.00

 

FQ4 2009

 

4.00:1.00

 

FQ1 2010

 

3.50:1.00

 

FQ2 2010

 

3.50:1.00

 

FQ3 2010

 

3.50:1.00

 

FQ4 2010

 

3.50:1.00

 

FQ1 2011

 

3.00:1.00

 

FQ2 2011

 

3.00:1.00

 

FQ3 2011 and thereafter

 

3.00:1.00

 

 

(c)   MaximumConsolidated Capital Expenditures. Holdings shall not, and shall not permitits Subsidiaries to, make or incur Consolidated Capital Expenditures, in anyFiscal Year indicated below, in an aggregate amount for Holdings and itsSubsidiaries in excess of the corresponding amount set forth below oppositesuch Fiscal Year:

Fiscal Year

 

Consolidated
 Capital Expenditures

 

2006

 

$

8,000,000

 

2007

 

$

8,000,000

 

2008

 

$

8,000,000

 

2009

 

$

8,000,000

 

2010

 

$

8,000,000

 

2011

 

$

8,000,000

 

 

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(d)   Certain Calculations. With respect toany period during which a Permitted Acquisition or an Asset Sale has occurred(each, a “Subject Transaction”), for purposes of determining compliance with thefinancial covenants set forth in this Section 6.8 (but not for purposes ofdetermining the Applicable Margin or Applicable Commitment Fee Percentage),Consolidated Adjusted EBITDA shall be calculated with respect to such period ona pro forma basis (including pro forma adjustments arising out of events whichare directly attributable to a specific transaction, are factually supportableand are expected to have a continuing impact, in each case determined in goodfaith on a basis consistent with Article 11 of Regulation S-Xpromulgated under the Securities Act and as interpreted by the staff of theSecurities and Exchange Commission, which would include cost savings resultingfrom head count reduction, closure of facilities and similar restructuringcharges, which pro forma adjustments shall be certified by the chief financialofficer of Holdings) using the historical audited financial statements of anybusiness so acquired or to be acquired or sold or to be sold and theconsolidated financial statements of Holdings and its Subsidiaries which shallbe reformulated as if such Subject Transaction, and any Indebtedness incurredor repaid in connection therewith, had been consum­mated or incurred or repaidat the beginning of such period (and assuming that such Indebtedness bearsinterest during any portion of the applicable measurement period prior to therelevant acquisition at the weighted average of the interest rates applicableto outstanding Loans incurred during such period).

6.9.   Fundamental Changes;Disposition of Assets; Acquisitions. No Credit Party shall,nor shall it permit any of its Subsidiaries to, enter into any transaction ofmerger or consolidation,or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution),or convey, sell, lease or sub-lease (as lessor or sublessor), exchange,transfer or otherwise dispose of, in one transaction or a series oftransactions, all or any part of its business, assets or property of any kindwhatsoever, whether real, personal or mixed and whether tangible or intangible,whether now owned or hereafter acquired, or acquire by purchase or otherwise(other than purchases or other acquisitions of inventory, supplies,intellectual property, materials and equipment and Capital Expenditures in theordinary course of business) the business, all or substantially all of theproperty or fixed assets of, or stock or other evidence of beneficial ownershipof, any Person or any division or line of business or other business unit of anyPerson, except:

(a)   any Subsidiary of Company may be merged withor into Company or any Guarantor Subsidiary, or be liquidated, wound up ordissolved, or all or any part of its business, property or assets may beconveyed, sold, leased, transferred or otherwise disposed of, in onetransaction or a series of transactions, to Company or any GuarantorSubsidiary; provided, in the case of such a merger, Company or suchGuarantor Subsidiary, as applicable shall be the continuing or survivingPerson; and any Subsidiary of Company which is not a Guarantor Subsidiary maybe merged with or into any other Subsidiary which is not a Guarantor

 

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Subsidiary, or be liquidated, woundup or dissolved, or all or any part of its business, property or assets may beconveyed, sold, leased, transferred or otherwise disposed of, in onetransaction or a series of transactions to any Subsidiary which is not aGuarantor Subsidiary;

(b)   sales, leases, licenses or other dispositionsof assets that do not constitute Asset Sales; provided, that the fairmarket value of assets sold, leased, licensed, or otherwise disposed of toSubsidiaries of Company that are not Guarantors, together with any Investmentspermitted under Section 6.7(b)(iii), shall not exceed $7,500,000 in anyFiscal Year;

(c)   Asset Sales, the proceeds of which (valued atthe principal amount thereof in the case of non-Cash proceeds consistingof notes or other debt Securities and valued at fair market value in the caseof other non-Cash proceeds) (i) are less than $1,000,000 withrespect to any single Asset Sale or series of related Asset Sales and (ii) whenaggregated with the proceeds of all other Asset Sales made within the sameFiscal Year, are less than $2,000,000; provided (1) theconsideration received for such assets shall be in an amount at least equal tothe fair market value thereof (determined in good faith by the Board ofDirectors of Company), (2) no less than 75% thereof shall be paid in Cash,and (3) the Net Asset Sale Proceeds thereof shall be applied as requiredby Section 2.14(a);

(d)   Permitted Acquisitions, the consideration forwhich constitutes less than $50,000,000 in the aggregate from the Closing Dateto the date of determination;

(e)   Investments made in accordance with Section 6.7;

(f)  the lapse of registered intellectualproperty of Company or any of its Subsidiaries that is no longer useful and thelapse of which could not reasonably be expected to result in a Material AdverseEffect;

(g)   the settlement or write-off of accounts receivableor sale of overdue accounts receivable for collection in the ordinary course ofbusiness consistent with past practice; and

(h)   the termination, surrender or sublease of areal estate lease of Company or any of its Subsidiaries in the ordinary courseof business.

6.10.   Disposal ofSubsidiary Interests. Except for any sale of all of itsinterests in the Capital Stock of any of its Subsidiaries in compliance withthe provisions of Section 6.9,no Credit Party shall, nor shall it permit any of its Subsidiaries to, (a) directlyor indirectly sell, assign, pledge or otherwise encumber or dispose of anyCapital Stock of any of its Subsidiaries, except to qualify directors ifrequired by applicable law; or (b) permit any of its Subsidiaries directlyor indirectly to sell, assign, pledge or otherwise encumber or dispose of anyCapital

112



Stock of any of itsSubsidiaries, except to another Credit Party (subject to the restrictions onsuch disposition otherwise imposed hereunder), or to qualify directors if requiredby applicable law.

6.11.   Sales and Lease-Backs.No Credit Party shall, nor shall it permit any of itsSubsidiaries to, directly or indirectly, become or remain liable as lessee oras a guarantor or other suretywith respect to any lease of any property (whether real, personal or mixed),whether now owned or hereafter acquired, which such Credit Party (a) hassold or transferred or is to sell or to transfer to any other Person (otherthan Holdings or any of its Subsidiaries), or (b) intends to use for substantiallythe same purpose as any other property which has been or is to be sold ortransferred by such Credit Party to any Person (other than Holdings or any ofits Subsidiaries) in connection with such lease.

6.12.   Transactions withShareholders and Affiliates. No Credit Party shall, nor shallit permit any of its Subsidiaries to, directly or indirectly, enter into orpermit to exist anytransaction (including the purchase, sale, lease or exchange of any property orthe rendering of any service) with any Affiliate of Holdings, on terms that areless favorable to Holdings or that Subsidiary, as the case may be, than thosethat might be obtained at the time from a Person who is not an Affiliate; provided,the foregoing restriction shall not apply to (a) any transaction (i) betweenCompany and any Guarantor Subsidiary, (ii) between two or more GuarantorSubsidiaries and (iii) between two or more Subsidiaries that are notGuarantors; (b) reasonable and customary fees paid to and indemnificationarrangements entered into with members of the Board of Directors (or similargoverning body) of Holdings and its Subsidiaries; (c) (i) so long asno Default or Event of Default has occurred and is continuing, payment ofmanagement fees to Sponsor and its Affiliates in an amount not to exceed$300,000 per Fiscal Year, which amount may be increased by an amount equal to$300,000 per Fiscal Year for each Permitted Acquisition consummated during suchFiscal Year, subject to a maximum aggregate amount of management fees of$2,000,000 in any twelve-month period and (ii) reimbursement of reasonableexpenses actually incurred by Sponsor and its Affiliates; (d) transactionsdescribed in Schedule 6.12; (e) any transactions contemplated by and effectedin connection with the transactions contemplated hereby, including the paymentof fees and expenses related thereto; and (f) any transaction otherwisepermitted by Section 6.1, 6.2, 6.5, 6.7 or 6.9.

6.13.   Conduct of Business. Fromand after the Closing Date, no Credit Party shall, nor shall it permit any ofits Subsidiaries to, engage in any business other than (i) the businesses engaged in by such CreditParty on the Closing Date and similar or related businesses and (ii) suchother lines of business as may be consented to by Requisite Lenders.

6.14.   Permitted Activitiesof Holdings. Holdings shall not (a) incur, directly orindirectly, any Indebtedness or any other obligation or liability whatsoeverother than the Indebtednessand obligations under the Credit Documents and the Related Agreements; (b) createor suffer to exist any Lien upon any property or assets now owned or hereafteracquired by

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it other than the Lienscreated under the Collateral Documents to which it is a party or permittedpursuant to Section 6.2; (c) engage in any business or activity orown any assets other than (i) holding 100% of the Capital Stock ofCompany, (ii) performing its obligations and activities incidental theretounder the Credit Documents, and to the extent not inconsistent therewith, theRelated Agreements; and (iii) making Restricted Junior Payments andInvestments to the extent permitted by this Agreement; (d) consolidatewith or merge with or into, or convey, transfer or lease all or substantiallyall its assets to, any Person; (e) sell or otherwise dispose of anyCapital Stock of any of its Subsidiaries except as permitted under Section 6.9and 6.10; (f) create or acquire any Subsidiary or make or own anyInvestment in any Person other than Company; or (g) fail to hold itselfout to the public as a legal entity separate and distinct from all otherPersons.

6.15.   Amendments or Waiversof Purchase Agreement and Organizational Documents. No CreditParty shall, nor shall it permit any of its Subsidiaries to, agree to any amendment, restatement,supplement or other modification to, or waiver of, any of its material rightsunder the Purchase Agreement or the terms of any of its OrganizationalDocuments after the Closing Date if the effect of such amendment, restatement,supplement, modification or waiver would be adverse to any Credit Party orLenders, without in each case obtaining the prior written consent of RequisiteLenders to such amendment, restatement, supplement or other modification orwaiver.

6.16.   Amendments or Waiverswith respect to Subordinated Indebtedness. No Credit Partyshall, nor shall it permit any of its Subsidiaries to, amend or otherwisechange the terms of anySubordinated Indebtedness, or make any payment consistent with an amendmentthereof or change thereto, if the effect of such amendment or change is toincrease the interest rate on such Subordinated Indebtedness, change (toearlier dates) any dates upon which payments of principal or interest are duethereon, change any event of default or condition to an event of default withrespect thereto (other than to eliminate any such event of default or increaseany grace period related thereto), change the redemption, prepayment ordefeasance provisions thereof, change the subordination provisions of suchSubordinated Indebtedness (or of any guaranty thereof), or if the effect ofsuch amendment or change, together with all other amendments or changes made,is to increase materially the obligations of the obligor thereunder or toconfer any additional rights on the holders of such Subordinated Indebtedness(or a trustee or other representative on their behalf) which would be adverseto any Credit Party or Lenders.

6.17.   Fiscal Year. NoCredit Party shall, nor shall it permit any of its Subsidiaries to change itsFiscal Year-end from the Friday closest to March 31.

6.18.   Designated Senior Debt. The Company shallnot designate any Indebtedness other than Indebtedness under this Agreement andthe other Credit Documents as “DesignatedSenior Debt” under the Senior Subordinated Note Agreement without the priorwritten consent of the Requisite Lenders.

 

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SECTION 7.  GUARANTY

7.1.   Guaranty of theObligations. Subject to the provisions of Section 7.2,Guarantors jointly and severally hereby irrevocably and unconditionallyguaranty to AdministrativeAgent for the ratable benefit of the Beneficiaries the due and punctual paymentin full of all Obligations when the same shall become due, whether at statedmaturity, by required prepayment, declaration, acceleration, demand orotherwise (including amounts that would become due but for the operation of theautomatic stay under Section 362(a) of the Bankruptcy Code,11 U.S.C. § 362(a)) (collectively, the “GuaranteedObligations”).

7.2.   Contribution byGuarantors. All Guarantors desire to allocate amongthemselves (collectively, the “Contributing Guarantors”),in a fair and equitable manner, their obligations arising under thisGuaranty. Accordingly, in the event any payment or distribution is made on anydate by a Guarantor (a “Funding Guarantor”)under this Guaranty such that its Aggregate Payments exceeds its Fair Share asof such date, such Funding Guarantor shall be entitled to a contribution fromeach of the other Contributing Guarantors in an amount sufficient to cause eachContributing Guarantor’s Aggregate Payments to equal its Fair Share as of suchdate. “Fair Share” means, with respect to aContributing Guarantor as of any date of determination, an amount equal to (a) theratio of (i) the Fair Share Contribution Amount with respect to suchContributing Guarantor to (ii) the aggregate of the Fair ShareContribution Amounts with respect to all Contributing Guarantors multiplied by (b) theaggregate amount paid or distributed on or before such date by all FundingGuarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution Amount” means, with respect to aContributing Guarantor as of any date of determination, the maximum aggregateamount of the obligations of such Contributing Guarantor under this Guarantythat would not render its obligations hereunder or thereunder subject toavoidance as a fraudulent transfer or conveyance under Section 548 ofTitle 11 of the United States Code or any comparable applicable provisions ofstate law; provided, solely for purposes of calculating the “Fair Share Contribution Amount” with respect to anyContributing Guarantor for purposes of this Section 7.2, any assets orliabilities of such Contributing Guarantor arising by virtue of any rights tosubrogation, reimbursement or indemnification or any rights to or obligationsof contribution hereunder shall not be considered as assets or liabilities ofsuch Contributing Guarantor. “Aggregate Payments”means, with respect to a Contributing Guarantor as of any date ofdetermination, an amount equal to (1) the aggregate amount of all paymentsand distributions made on or before such date by such Contributing Guarantor inrespect of this Guaranty (including, without limitation, in respect of this Section 7.2),minus (2) the aggregate amount of all payments received on or before suchdate by such Contributing Guarantor from the other Contributing Guarantors ascontributions under this Section 7.2. The amounts payable as contributionshereunder shall be determined as of the date on which the related payment ordistribution is made by the applicable Funding Guarantor. The allocation amongContributing Guarantors of their obligations as set forth in this Section 7.2

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shall not be construed inany way to limit the liability of any Contributing Guarantor hereunder. EachGuarantor is a third party beneficiary to the contribution agreement set forthin this Section 7.2.

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

7.4.   Liability ofGuarantors Absolute. Each Guarantor agrees that itsobligations hereunder are irrevocable, absolute, independent and unconditionaland shall not be affectedby any circumstance which constitutes a legal or equitable discharge of aguarantor or surety other than payment in full of the Guaranteed Obligations. Infurtherance of the foregoing and without limiting the generality thereof, eachGuarantor agrees as follows:

(a)   this Guaranty is a guaranty of payment whendue and not of collectability. This Guaranty is a primary obligation of eachGuarantor and not merely a contract of surety;

(b)   Administrative Agent may enforce thisGuaranty upon the occurrence of an Event of Default notwithstanding theexistence of any dispute between Company and any Beneficiary with respect tothe existence of such Event of Default;

(c)   the obligations of each Guarantor hereunderare independent of the obligations of Company and the obligations of any otherguarantor (including any other Guarantor) of the obligations of Company, and aseparate action or actions may be brought and prosecuted against such Guarantorwhether or not any action is brought against Company or any of such otherguarantors and whether or not Company is joined in any such action or actions;

(d)   payment by any Guarantor of a portion, butnot all, of the Guaranteed Obligations shall in no way limit, affect, modify orabridge any Guarantor’s liability for any portion of the Guaranteed Obligationswhich has not been paid. Without limiting the generality

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of the foregoing, ifAdministrative Agent is awarded a judgment in any suit brought to enforce anyGuarantor’s covenant to pay a portion of the Guaranteed Obligations, suchjudgment shall not be deemed to release such Guarantor from its covenant to paythe portion of the Guaranteed Obligations that is not the subject of such suit,and such judgment shall not, except to the extent satisfied by such Guarantor,limit, affect, modify or abridge any other Guarantor’s liability hereunder inrespect of the Guaranteed Obligations;

(e)   any Beneficiary, upon such terms as it deemsappropriate, without notice or demand and without affecting the validity orenforceability hereof or giving rise to any reduction, limitation, impairment,discharge or termination of any Guarantor’s liability hereunder, from time totime may (i) renew, extend, accelerate, increase the rate of interest on,or otherwise change the time, place, manner or terms of payment of theGuaranteed Obligations; (ii) settle, compromise, release or discharge, oraccept or refuse any offer of performance with respect to, or substitutionsfor, the Guaranteed Obligations or any agreement relating thereto and/orsubordinate the payment of the same to the payment of any other obligations; (iii) requestand accept other guaranties of the Guaranteed Obligations and take and hold securityfor the payment hereof or the Guaranteed Obligations; (iv) release,surrender, exchange, substitute, compromise, settle, rescind, waive, alter,subordinate or modify, with or without consideration, any security for paymentof the Guaranteed Obligations, any other guaranties of the GuaranteedObligations, or any other obligation of any Person (including any otherGuarantor) with respect to the Guaranteed Obligations; (v) enforce andapply any security now or hereafter held by or for the benefit of suchBeneficiary in respect hereof or the Guaranteed Obligations and direct theorder or manner of sale thereof, or exercise any other right or remedy thatsuch Beneficiary may have against any such security, in each case as suchBeneficiary in its discretion may determine consistent herewith or theapplicable Hedge Agreement and any applicable security agreement, includingforeclosure on any such security pursuant to one or more judicial ornonjudicial sales, whether or not every aspect of any such sale is commerciallyreasonable, and even though such action operates to impair or extinguish anyright of reimbursement or subrogation or other right or remedy of any Guarantoragainst Company or any security for the Guaranteed Obligations; and (vi) exerciseany other rights available to it under the Credit Documents or the HedgeAgreements; and

(f)   this Guaranty and the obligations ofGuarantors hereunder shall be valid and enforceable and shall not be subject toany reduction, limitation, impairment, discharge or termination for any reason(other than payment in full of the Guaranteed Obligations), including theoccurrence of any of the following, whether or not any Guarantor shall have hadnotice or knowledge of any of them: (i) any failure or omission to assertor enforce or agreement or election not to assert or enforce, or the stay orenjoining, by order of court, by operation of law or otherwise, of the exerciseor enforcement of, any claim or demand or any right, power or remedy (whetherarising under the Credit Documents or the Hedge Agreements, at law, in equityor

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otherwise) with respectto the Guaranteed Obligations or any agreement relating thereto, or withrespect to any other guaranty of or security for the payment of the GuaranteedObligations; (ii) any rescission, waiver, amendment or modification of, orany consent to departure from, any of the terms or provisions (includingprovisions relating to events of default) hereof, or of any of the other CreditDocuments, any of the Hedge Agreements or any agreement or instrument executedpursuant thereto, or of any other guaranty or security for the GuaranteedObligations, in each case whether or not in accordance with the terms hereof orsuch Credit Document, such Hedge Agreement or any agreement relating to suchother guaranty or security; (iii) the Guaranteed Obligations, or anyagreement relating thereto, at any time being found to be illegal, invalid orunenforceable in any respect; (iv) the application of payments receivedfrom any source (other than payments received pursuant to the other CreditDocuments or any of the Hedge Agreements or from the proceeds of any securityfor the Guaranteed Obligations, except to the extent such security also servesas collateral for indebtedness other than the Guaranteed Obligations) to thepayment of indebtedness other than the Guaranteed Obligations, even though anyBeneficiary might have elected to apply such payment to any part or all of theGuaranteed Obligations; (v) any Beneficiary’s consent to the change, reorganizationor termination of the corporate structure or existence of Holdings or any ofits Subsidiaries and to any correspond­ing restructuring of the GuaranteedObligations; (vi) any failure to perfect or continue perfection of asecurity interest in any collateral which secures any of the GuaranteedObligations; (vii) any defenses, set-offs or counterclaims whichCompany may allege or assert against any Beneficiary in respect of theGuaranteed Obligations, including failure of consideration, breach of warranty,payment, statute of frauds, statute of limitations, accord and satisfaction andusury; and (viii) any other act or thing or omission, or delay to do anyother act or thing, which may or might in any manner or to any extent vary therisk of any Guarantor as an obligor in respect of the Guaranteed Obligations.

7.5.   Waivers by Guarantors.Each Guarantor hereby waives, for the benefit ofBeneficiaries: (a) any right to require any Beneficiary, as a condition ofpayment or performance by suchGuarantor, to (i) proceed against Company, any other guarantor (includingany other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceedagainst or exhaust any security held from Company, any such other guarantor orany other Person, (iii) proceed against or have resort to any balance ofany Deposit Account or credit on the books of any Beneficiary in favor ofCompany or any other Person, or (iv) pursue any other remedy in the powerof any Beneficiary whatsoever; (b) any defense arising by reason of theincapacity, lack of authority or any disability or other defense of Company orany other Guarantor including any defense based on or arising out of the lackof validity or the unenforceability of the Guaranteed Obligations or anyagreement or instrument relating thereto or by reason of the cessation of theliability of Company or any other Guarantor from any cause other than paymentin full of the Guaranteed Obligations; (c) any defense based upon anystatute or rule of law which provides that the obligation of a surety mustbe neither larger in amount nor in other respects more

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burdensome than that ofthe principal; (d) any defense based upon any Beneficiary’s errors oromissions in the administration of the Guaranteed Obligations, except behaviorwhich amounts to gross negligence, willful misconduct or bad faith; (e) (i) anyprinciples or provisions of law, statutory or otherwise, which are or might bein conflict with the terms hereof and any legal or equitable discharge of suchGuarantor’s obligations hereunder, (ii) the benefit of any statute oflimitations affecting such Guarantor’s liability hereunder or the enforcementhereof, (iii) any rights to set-offs, recoupments and counterclaims,and (iv) promptness, diligence and any requirement that any Beneficiaryprotect, secure, perfect or insure any security interest or lien or anyproperty subject thereto; (f) notices, demands, presentments, protests,notices of protest, notices of dishonor and notices of any action or inaction,including acceptance hereof, notices of default hereunder, under the HedgeAgreements or under any agreement or instrument related thereto, notices of anyrenewal, extension or modification of the Guaranteed Obligations or anyagreement related thereto, notices of any extension of credit to Company andnotices of any of the matters referred to in Section 7.4 and any right toconsent to any thereof; and (g) any defenses or benefits that may bederived from or afforded by law which limit the liability of or exonerateguarantors or sureties, or which may conflict with the terms hereof.

7.6.   Guarantors’ Rights ofSubrogation, Contribution, etc. Until the GuaranteedObligations shall have been indefeasibly paid in full and the RevolvingCommitments shall haveterminated and all Letters of Credit shall have expired or been cancelled, eachGuarantor hereby waives any claim, right or remedy, direct or indirect, thatsuch Guarantor now has or may hereafter have against Company or any otherGuarantor or any of its assets in connection with this Guaranty or theperformance by such Guarantor of its obligations hereunder, in each casewhether such claim, right or remedy arises in equity, under contract, bystatute, under common law or otherwise and including without limitation (a) anyright of subrogation, reimbursement or indemnification that such Guarantor nowhas or may hereafter have against Company with respect to the GuaranteedObligations, (b) any right to enforce, or to participate in, any claim,right or remedy that any Beneficiary now has or may hereafter have againstCompany, and (c) any benefit of, and any right to participate in, anycollateral or security now or hereafter held by any Beneficiary. In addition,until the Guaranteed Obligations shall have been indefeasibly paid in full andthe Revolving Commitments shall have terminated and all Letters of Credit shallhave expired or been cancelled, each Guarantor shall withhold exercise of anyright of contribution such Guarantor may have against any other guarantor(including any other Guarantor) of the Guaranteed Obligations, including,without limitation, any such right of contribution as contemplated by Section 7.2.Each Guarantor further agrees that, to the extent the waiver or agreement towithhold the exercise of its rights of subrogation, reimbursement,indemnification and contribution as set forth herein is found by a court ofcompetent jurisdiction to be void or voidable for any reason, any rights ofsubrogation, reimbursement or indemnification such Guarantor may have againstCompany or against any collateral or security, and any rights of contributionsuch Guarantor may have against any such other guarantor, shall be junior and

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subordinate to any rightsany Beneficiary may have against Company, to all right, title and interest anyBeneficiary may have in any such collateral or security, and to any right anyBeneficiary may have against such other guarantor. If any amount shall be paidto any Guarantor on account of any such subrogation, reimbursement,indemnification or contribution rights at any time when all GuaranteedObligations shall not have been finally and indefeasibly paid in full, suchamount shall be held in trust for Administrative Agent on behalf ofBeneficiaries and shall forthwith be paid over to Administrative Agent for thebenefit of Beneficiaries to be credited and applied against the GuaranteedObligations, whether matured or unmatured, in accordance with the terms hereof.

7.7.   Subordination of OtherObligations. Any Indebtedness of Company or any Guarantor nowor hereafter held by any Guarantor (the “Obligee Guarantor”)is hereby subordinatedin right of payment to the Guaranteed Obligations, and any such indebtednesscollected or received by the Obligee Guarantor after an Event of Default hasoccurred and is continuing shall be held in trust for Administrative Agent onbehalf of Beneficiaries and shall forthwith be paid over to AdministrativeAgent for the benefit of Beneficiaries to be credited and applied against theGuaranteed Obligations but without affecting, impairing or limiting in anymanner the liability of the Obligee Guarantor under any other provision hereof.

7.8.   Continuing Guaranty. ThisGuaranty is a continuing guaranty and shall remain in effect until all of theGuaranteed Obligations shall have been paid in full and the Revolving Commitments shall haveterminated and all Letters of Credit shall have expired or been cancelled. EachGuarantor hereby irrevocably waives any right to revoke this Guaranty as tofuture transactions giving rise to any Guaranteed Obligations.

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

7.10.   Financial Conditionof Company. Any Credit Extension may be made to Company orcontinued from time to time, and any Hedge Agreements may be entered into from time to time, in eachcase without notice to or authorization from any Guarantor regardless of thefinancial or other condition of Company at the time of any such grant orcontinuation or at the time such Hedge Agreement is entered into, as the casemay be. No Beneficiary shall have any obligation to disclose or discuss withany Guarantor its assessment, or any Guarantor’s assessment, of the financialcondition of Company. Each Guarantor has adequate means to obtain informationfrom Company on a continuing basis concerning the financial condition ofCompany and its ability to perform its obligations under the Credit Documentsand the Hedge Agreements, and each Guarantor assumes the responsibility forbeing and keeping informed of the financial condition of Company and of allcircumstances bearing upon the risk of nonpayment of the Guaranteed Obligations.Each Guarantor hereby waives and relinquishes any

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duty on the part of anyBeneficiary to disclose any matter, fact or thing relating to the business,operations or conditions of Company now known or hereafter known by anyBeneficiary.

7.11.   Bankruptcy, etc.  (a)  So long as any GuaranteedObligations remain outstanding, no Guarantor shall, without the prior writtenconsent of Administrative Agent actingpursuant to the instructions of Requisite Lenders, commence or join with anyother Person in commencing any bankruptcy, reorganization or insolvency case orproceeding of or against Company or any other Guarantor. The obligations ofGuarantors hereunder shall not be reduced, limited, impaired, discharged,deferred, suspended or terminated by any case or proceeding, voluntary orinvoluntary, involving the bankruptcy, insolvency, receivership,reorganization, liquidation or arrangement of Company or any other Guarantor orby any defense which Company or any other Guarantor may have by reason of theorder, decree or decision of any court or administrative body resulting fromany such proceeding.

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

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

7.12.   Discharge of GuarantyUpon Sale of Guarantor. If all of the Capital Stock of anyGuarantor or any of its successors in interest hereunder shall be sold orotherwise disposed of(including by merger or consolidation) in accordance with the terms and conditionshereof, the Guaranty of such Guarantor or such successor in interest, as thecase may be, hereunder shall automatically be discharged and released withoutany further action by any Beneficiary or any other Person effective as of thetime of such Asset Sale.

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SECTION 8.  EVENTS OF DEFAULT

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

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

(b)   Default in Other Agreements. (i) Failureof any Credit Party or any of their respective Subsidiaries to pay when due anyprincipal of or interest on or any other amount payable in respect of one ormore items of Indebtedness (other than Indebtedness referred to in Section 8.1(a))in an individual principal amount of $2,500,000 or more or with an aggregateprincipal amount of $5,000,000 or more, in each case beyond the grace period,if any, provided therefor; or (ii) breach or default by any Credit Partywith respect to any other material term of (1) one or more items ofIndebtedness in the individual or aggregate principal amounts referred to inclause (i) above or (2) any loan agreement, mortgage, indenture orother agreement relating to such item(s) of Indebtedness, in each casebeyond the grace period, if any, provided therefor, if the effect of suchbreach or default is to cause, or to permit the holder or holders of thatIndebtedness (or a trustee on behalf of such holder or holders), to cause, thatIndebtedness to become or be declared due and payable (or redeemable) prior toits stated maturity or the stated maturity of any underlying obligation, as thecase may be; or

(c)   Breach of Certain Covenants. Failureof any Credit Party to perform or comply with any term or condition containedin Section 2.6, Section 5.2(i) or Section 6; or

(d)   Breach of Representations, etc. Anyrepresentation, warranty, certification or other statement made or deemed madeby any Credit Party in any Credit Document or in any statement or certificateat any time given by any Credit Party or any of its Subsidiaries in writingpursuant hereto or thereto or in connection herewith or therewith shall befalse in any material respect as of the date made or deemed made; or

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

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(f)   Involuntary Bankruptcy; Appointment ofReceiver, etc. (i) A court of competent jurisdiction shall enter adecree or order for relief in respect of Holdings, Company, any SignificantSubsidiary of Company or any group of Subsidiaries constituting a SignificantSubsidiary of Company in an involuntary case under the Bankruptcy Code or underany other applicable bankruptcy, insolvency or similar law now or hereafter ineffect, which decree or order is not stayed; or any other similar relief shallbe granted under any applicable federal or state law; or (ii) aninvoluntary case shall be commenced against Holdings, Company, any SignificantSubsidiary of Company or any group of Subsidiaries constituting a SignificantSubsidiary of Company under the Bankruptcy Code or under any other applicablebankruptcy, insolvency or similar law now or hereafter in effect; or a decreeor order of a court having jurisdiction in the premises for the appointment ofa receiver, liquidator, sequestrator, trustee, custodian or other officerhaving similar powers over Holdings, Company, any Significant Subsidiary ofCompany or any group of Subsidiaries constituting a Significant Subsidiary ofCompany, or over all or a substantial part of its property, shall have beenentered; or there shall have occurred the involuntary appointment of an interimreceiver, trustee or other custodian of Holdings, Company, any SignificantSubsidiary of Company or any group of Subsidiaries constituting a SignificantSubsidiary of Company for all or a substantial part of its property; or awarrant of attachment, execution or similar process shall have been issuedagainst any substantial part of the property of Holdings, Company, anySignificant Subsidiary of Company or any group of Subsidiaries constituting aSignificant Subsidiary of Company, and any such event described in this clause (ii) shallcontinue for sixty days without having been dismissed, bonded or discharged; or

(g)   Voluntary Bankruptcy; Appointment ofReceiver, etc. (i) Holdings, Company, any Significant Subsidiary ofCompany or any group of Subsidiaries constituting a Significant Subsidiary ofCompany shall have an order for relief entered with respect to it or shallcommence a voluntary case under the Bankruptcy Code or under any otherapplicable bankruptcy, insolvency or similar law now or hereafter in effect, orshall consent to the entry of an order for relief in an involuntary case, or tothe conversion of an involuntary case to a voluntary case, under any such law,or shall consent to the appointment of or taking possession by a receiver,trustee or other custodian for all or a substantial part of its property; orHoldings, Company, any Significant Subsidiary of Company or any group ofSubsidiaries constituting a Significant Subsidiary of Company shall make anyassignment for the benefit of creditors; or (ii) Holdings, Company, anySignificant Subsidiary of Company or any group of Subsidiaries constituting aSignificant Subsidiary of Company shall be unable, or shall fail generally, orshall admit in writing its inability, to pay its debts as such debts becomedue; or the Board of Directors of Holdings, Company, any Significant Subsidiaryof Company or any group of Subsidiaries constituting a Significant Subsidiaryof Company (or any committee thereof) shall adopt any resolution or otherwiseauthorize any action to approve any of the actions referred to herein or in Section 8.1(f);or

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(h)   Judgments and Attachments. Any moneyjudgment, writ or warrant of attachment or similar process involving (i) inany individual case an amount in excess of $2,500,000 or (ii) in theaggregate at any time an amount in excess of $5,000,000 (in either case to theextent not adequately covered by insurance as to which a solvent andunaffiliated insurance company has acknowledged coverage excluding customarydeductibles) shall be entered or filed against Holdings or any of itsSubsidiaries or any of their respective assets and shall remain undischarged,unvacated, unbonded or unstayed for a period of sixty days (or in any eventlater than five days prior to the date of any proposed sale thereunder); or

(i)   Dissolution. Any order, judgment ordecree shall be entered against Holdings, Company, any Significant Subsidiaryof Company or any group of Subsidiaries constituting a Significant Subsidiaryof Company decreeing the dissolution or split up of such Person and such ordershall remain undischarged or unstayed for a period in excess of thirty days; or

(j)   Employee Benefit Plans. (i) Thereshall occur one or more ERISA Events which individually or in the aggregateresults in or might reasonably be expected to result in liability of Holdings,any of its Subsidiaries or any of their respective ERISA Affiliates in excessof $2,500,000 during the term hereof; or (ii) there exists any fact orcircumstance that reasonably could be expected to result in the imposition of aLien or security interest under Section 412(n) of the InternalRevenue Code or under ERISA; or

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

(l)   Guaranties, Collateral Documents and otherCredit Documents. At any time after the execution and delivery thereof, (i) theGuaranty for any reason, other than the satisfaction in full of allObligations, shall cease to be in full force and effect (other than inaccordance with its terms) or shall be declared to be null and void or anyGuarantor shall repudiate its obligations thereunder, (ii) this Agreementor any material Collateral Document ceases to be in full force and effect(other than by reason of a release of Collateral in accordance with the termshereof or thereof or the satisfaction in full of the Obligations in accordancewith the terms hereof) or shall be declared null and void, or Collateral Agentshall not have or shall cease to have a valid and perfected Lien in anyCollateral purported to be covered by the Collateral Documents with thepriority required by the relevant Collateral Document, in each case for anyreason other than the failure of Collateral Agent or any Secured Party to takeany action within its control, or (iii) any Credit Party shall contest thevalidity or enforceability of any Credit Document in writing or deny in writingthat it has any further liability, including with respect to future advances byLenders, under any Credit Document to which it is a party; or

(m)   Failure of Merger to Occur. The Mergershall not have occurred on the Closing Date;

 

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THEN, (1) upon the occurrence of any Event of Defaultdescribed in Section 8.1(f) or 8.1(g), automatically, and (2) uponthe occurrence of any other Event of Default, at the request of (or with theconsent of) Requisite Lenders, upon notice to Company by Administrative Agent, (A) theRevolving Commitments, if any, of each Lender having such Revolving Commitmentsand the obligation of Issuing Bank to issue any Letter of Credit shallimmediately terminate; (B) each of the following shall immediately becomedue and payable, in each case without presentment, demand, protest or otherrequirements of any kind, all of which are hereby expressly waived by eachCredit Party: (I) the unpaid principal amount of and accrued interest onthe Loans and (II) all other Obligations; provided, the foregoingshall not affect in any way the obligations of Lenders under Section 2.3(b)(iv) orSection 2.4(e); (C) Administrative Agent may cause Collateral Agentto enforce any and all Liens and security interests created pursuant to theCollateral Documents; and (D) Administrative Agent shall direct Company topay (and Company hereby agrees upon receipt of such notice, or upon theoccurrence of any Event of Default specified in Section 8.1(f) and (g) topay) to Administrative Agent such additional amounts of cash, to be held assecurity for Company’s reimbursement Obligations in respect of Letters ofCredit then outstanding, equal to the Letter of Credit Usage at such time.

SECTION 9.  AGENTS

9.1.         Appointmentof Agents. GSCP is hereby appointed Syndication Agenthereunder, and each Lender hereby authorizes Syndication Agent to act as itsagent in accordance with theterms hereof and the other Credit Documents. GSCP is hereby appointedAdministrative Agent hereunder and under the other Credit Documents and eachLender hereby authorizes Administrative Agent to act as its agent in accordancewith the terms hereof and the other Credit Documents. Bank of America, N.A. ishereby appointed Documentation Agent hereunder, and each Lender hereby authorizesDocumentation Agent to act as its agent in accordance with the terms hereof andthe other Credit Documents. Each Agent hereby agrees to act upon the expressconditions contained herein and the other Credit Documents, as applicable. Theprovisions of this Section 9 are solely for the benefit of Agents andLenders and no Credit Party shall have any rights as a third party beneficiaryof any of the provisions thereof. In performing its functions and dutieshereunder, each Agent shall act solely as an agent of Lenders and does notassume and shall not be deemed to have assumed any obligation towards orrelationship of agency or trust with or for Holdings or any of its Subsidiaries.Each of Syndication Agent and Documenta­tion Agent, without consent of ornotice to any party hereto, may assign any and all of its rights or obligationshereunder to any of its Affiliates. As of the Closing Date, neither GSCP, inits capacity as Syndication Agent, nor Bank of America, N.A., in its capacityas Documentation Agent, shall have any obligations but shall be entitled to allbenefits of this Section 9.

9.2.         Powers and Duties. Each Lender irrevocablyauthorizes each Agent to take such action on such Lender’s behalf and toexercise such powers, rights and remedies hereunderand

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under the other CreditDocuments as are specifically delegated or granted to such Agent by the termshereof and thereof, together with such powers, rights and remedies as arereasonably incidental thereto. Each Agent shall have only those duties andresponsibilities that are expressly specified herein and the other CreditDocuments. Each Agent may exercise such powers, rights and remedies and performsuch duties by or through its agents or employees. No Agent shall have, byreason hereof or any of the other Credit Documents, a fiduciary relationship inrespect of any Lender; and nothing herein or in any of the other CreditDocuments, expressed or implied, is intended to or shall be so construed as toimpose upon any Agent any obligations in respect hereof or any of the otherCredit Documents except as expressly set forth herein or therein.

9.3.         General Immunity.

(a)   No Responsibility for Certain Matters.No Agent shall be responsible to any Lender for the execution, effectiveness,genuineness, validity, enforceability, collectability or sufficiency hereof orany other Credit Document or for any representations, warranties, recitals orstatements made herein or therein or made in any written or oral statements orin any financial or other statements, instruments, reports or certificates orany other documents furnished or made by any Agent to Lenders or by or onbehalf of any Credit Party, any Lender or any Person providing the SettlementService to any Agent or any Lender in connection with the Credit Documents andthe transactions contemplated thereby or for the financial condition orbusiness affairs of any Credit Party or any other Person liable for the paymentof any Obligations, nor shall any Agent be required to ascertain or inquire asto the performance or observance of any of the terms, conditions, provisions,covenants or agreements contained in any of the Credit Documents or as to theuse of the proceeds of the Loans or as to the existence or possible existenceof any Event of Default or Default or to make any disclosures with respect tothe foregoing. Anything contained herein to the contrary notwithstanding,Administrative Agent shall not have any liability arising from confirmations ofthe amount of outstanding Loans or the Letter of Credit Usage or the componentamounts thereof.

(b)   Exculpatory Provisions. No Agent norany of its officers, partners, directors, employees or agents shall be liableto Lenders for any action taken or omitted by any Agent under or in connectionwith any of the Credit Documents except to the extent caused by such Agent’sgross negligence or willful misconduct. Each Agent shall be entitled to refrainfrom any act or the taking of any action (including the failure to take anaction) in connection herewith or any of the other Credit Documents or from theexercise of any power, discretion or authority vested in it hereunder orthereunder unless and until such Agent shall have received instructions inrespect thereof from Requisite Lenders (or such other Lenders as may berequired to give such instructions under Section 10.5) and, upon receiptof such instructions from Requisite Lenders (or such other Lenders, as the casemay be), such Agent shall be entitled to act or (where so instructed) refrainfrom acting, or to exercise such power, discretion or authority, in accordancewith such instructions. Without prejudice to the generality of the foregoing, (i) eachAgent shall

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be entitled to rely, and shall befully protected in relying, upon any communication, instrument or documentbelieved by it to be genuine and correct and to have been signed or sent by theproper Person or Persons, including any Settlement Confirmation or othercommunication issued by any Settlement Service, and shall be entitled to relyand shall be protected in relying on opinions and judgments of attorneys (whomay be attorneys for Holdings and its Subsidiaries), accountants, experts andother professional advisors selected by it; and (ii) no Lender shall haveany right of action whatsoever against any Agent as a result of such Agentacting or (where so instructed) refraining from acting hereunder or under anyof the other Credit Documents in accordance with the instructions of RequisiteLenders (or such other Lenders as may be required to give such instructionsunder Section 10.5).

(c)   Delegation of Duties. AdministrativeAgent may perform any and all of its duties and exercise its rights and powersunder this Agreement or under any other Credit Document by or through any oneor more sub-agents appointed by Administrative Agent. Administrative Agent andany sub-agent may perform any and all of their duties and exercise their rightsand powers by or through their respective Affiliates. The exculpatory,indemnification and other provisions of this Section 9.3 and of Section 9.6shall apply to any Affiliates of Administrative Agent and shall apply to theirrespective activities in connection with the syndication of the creditfacilities provided for herein as well as activities as Administrative Agent. Allof the rights, benefits and privileges (including the exculpatory andindemnification provisions) of this Section 9.3 and of Section 9.6shall apply to any such sub-agent and to the Affiliates of any such sub-agent,and shall apply to their respective activities as sub-agent as if suchsub-agent and Affiliates were named herein. Notwithstanding anything herein tothe contrary, with respect to each sub-agent appointed by Administrative Agent,(i) such sub-agent shall be a third party beneficiary under this Agreementwith respect to all such rights, benefits and privileges (including exculpatoryrights and rights to indemnification) and shall have all of the rights andbenefits of a third party beneficiary, including an independent right of actionto enforce such rights, benefits and privileges (including exculpatory rightsand rights to indemnification) directly, without the consent or joinder of anyother Person, against any or all of the Credit Parties and the Lenders, (ii) suchrights, benefits and privileges (including exculpatory rights and rights toindemnification) shall not be modified or amended without the consent of suchsub-agent, and (iii) such sub-agent shall only have obligations toAdministrative Agent and not to any Credit Party, Lender or any other Person,and no Credit Party, Lender or any other Person shall have any rights, directlyor indirectly, as a third party beneficiary or otherwise, against suchsub-agent.

9.4.         Agents Entitled to Act as Lender. Theagency hereby created shall in no way impair or affect any of the rights andpowers of, or impose any duties or obligations upon, any Agent in itsindividual capacity as a Lender hereunder. With respect to its participation inthe Loans and the Letters of Credit, each Agent shall have the same rights andpowers hereunder as

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any other Lender and mayexercise the same as if it were not performing the duties and functionsdelegated to it hereunder, and the term “Lender” shall, unless the contextclearly otherwise indicates, include each Agent in its individual capacity. AnyAgent and its Affiliates may accept deposits from, lend money to, ownsecurities of, and generally engage in any kind of banking, trust, financialadvisory or other business with Holdings or any of its Affiliates as if it werenot performing the duties specified herein, and may accept fees and otherconsideration from Company for services in connection herewith and otherwisewithout having to account for the same to Lenders.

9.5.         Lenders’ Representations, Warranties and Acknowledgment.Each Lender represents and warrants that it has made its own independentinvestigation of the financialcondition and affairs of Holdings and its Subsidiaries in connection withCredit Extensions hereunder and that it has made and shall continue to make itsown appraisal of the creditworthiness of Holdings and its Subsidiaries. NoAgent shall have any duty or responsibility, either initially or on acontinuing basis, to make any such investigation or any such appraisal onbehalf of Lenders or to provide any Lender with any credit or other informationwith respect thereto, whether coming into its possession before the making ofthe Loans or at any time or times thereafter, and no Agent shall have anyresponsibility with respect to the accuracy of or the completeness of anyinformation provided to Lenders.

9.6.         Right to Indemnity. Each Lender, inproportion to its Pro Rata Share, severally agrees to indemnify each Agent, tothe extent that such Agent shall not have been reimbursed by any Credit Party, for andagainst any and all liabilities, obligations, losses, damages, penalties,actions, judgments, suits, costs, expenses (including counsel fees anddisbursements) or disbursements of any kind or nature whatsoever which may beimposed on, incurred by or asserted against such Agent in exercising itspowers, rights and remedies or performing its duties hereunder or under theother Credit Documents or otherwise in its capacity as such Agent in any wayrelating to or arising out of this Agreement or the other Credit Documents; provided,no Lender shall be liable for any portion of such liabilities, obligations,losses, damages, penalties, actions, judgments, suits, costs, expenses ordisbursements resulting from such Agent’s gross negligence or willfulmisconduct. If any indemnity furnished to any Agent for any purpose shall, inthe opinion of such Agent, be insufficient or become impaired, such Agent maycall for additional indemnity and cease, or not commence, to do the actsindemnified against until such additional indemnity is furnished; provided,in no event shall this sentence require any Lender to indemnify any Agentagainst any liability, obligation, loss, damage, penalty, action, judgment,suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Sharethereof; and provided further, this sentence shall not be deemedto require any Lender to indemnify any Agent against any liability, obligation,loss, damage, penalty, action, judgment, suit, cost, expense or disbursementdescribed in the proviso in the immediately preceding sentence.

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9.7.         Successor Administrative Agent and Swing Line Lender. AdministrativeAgent may resign at any time by giving thirty days’ prior written noticethereof to Lenders andCompany, and Administrative Agent may be removed at any time with or withoutcause by an instrument or concurrent instruments in writing delivered toCompany and Administrative Agent and signed by Requisite Lenders. Upon any suchnotice of resignation or any such removal, Requisite Lenders shall have theright, upon five Business Days’ notice to Company, to appoint a successorAdministrative Agent; provided that so long as no Event of Default thenexists, such successor Administrative Agent shall have been approved in writingby the Company. Upon the acceptance of any appointment as Administrative Agenthereunder by a successor Administrative Agent, that successor AdministrativeAgent shall thereupon succeed to and become vested with all the rights, powers,privileges and duties of the retiring or removed Administrative Agent and theretiring or removed Administrative Agent shall promptly (i) transfer tosuch successor Administrative Agent all sums, Securities and other items ofCollateral held under the Collateral Documents, together with all records andother documents necessary or appropriate in connection with the performance ofthe duties of the successor Administrative Agent under the Credit Documents,and (ii) execute and deliver to such successor Administrative Agent suchamendments to financing statements, and take such other actions, as may benecessary or appropriate in connection with the assignment to such successorAdministrative Agent of the security interests created under the CollateralDocuments, whereupon such retiring or removed Administrative Agent shall bedischarged from its duties and obligations hereunder. After any retiring orremoved Administrative Agent’s resignation or removal hereunder asAdministrative Agent, the provisions of this Section 9 shall inure to itsbenefit as to any actions taken or omitted to be taken by it while it wasAdministrative Agent hereunder. Any resignation or removal of GSCP or itssuccessor as Administrative Agent pursuant to this Section shall alsoconstitute the resignation or removal of GSCP or its successor as Swing LineLender, and any successor Administrative Agent appointed pursuant to this Section shall,upon its acceptance of such appointment, become the successor Swing Line Lenderfor all purposes hereunder. In such event (a) Company shall prepay anyoutstanding Swing Line Loans made by the retiring or removed AdministrativeAgent in its capacity as Swing Line Lender, (b) upon such prepayment, theretiring or removed Administrative Agent and Swing Line Lender shall surrenderany Swing Line Note held by it to Company for cancellation, and (c) Companyshall issue, if so requested by successor Administrative Agent and Swing LineLoan Lender, a new Swing Line Note to the successor Administrative Agent andSwing Line Lender, in the principal amount of the Swing Line Loan Sublimit thenin effect and with other appropriate insertions.

9.8.         Collateral Documents and Guaranty.

(a)   Agents under Collateral Documents andGuaranty. Each Lender hereby further authorizes Administrative Agent orCollateral Agent, as applicable, on behalf of and for the benefit of Lenders,to be the agent for and representative of Lenders with respect to the

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Guaranty, the Collateral and theCollateral Documents. Subject to Section 10.5, without further written consentor authorization from Lenders, Administra­tive Agent or Collateral Agent, asapplicable may execute any documents or instruments necessary to (i) releaseany Lien encumbering any item of Collateral that is the subject of a sale orother disposition of assets permitted hereby or to which Requisite Lenders (orsuch other Lenders as may be required to give such consent under Section 10.5)have otherwise consented or (ii) release any Guarantor from the Guarantypursuant to Section 7.12 or with respect to which Requisite Lenders (orsuch other Lenders as may be required to give such consent under Section 10.5)have otherwise consented. Without limiting the generality of the foregoing,upon the termination of the Commitments and the payment of all Obligations thendue and payable and the cancellation, expiration or cash collateralization (ina manner reasonably acceptable to Administrative Agent, but in no event toexceed 105% of the face amount thereof) of all Letters of Credit, (i) the Liens created by the Collateral Documentsshall terminate and all rights to the Collateral shall revert to the applicableCredit Party, and (ii) Collateral Agent will, upon a Credit Party’srequest and at such Credit Party’s expense, (x) return to such CreditParty such of the Collateral as shall not have been sold or otherwise disposedof or applied pursuant to the terms of the Credit Documents and (y) atsuch Credit Party’s expense, execute and deliver to such Credit Party such UCCtermination statements, releases, mortgage releases, discharges of securityinterests, reassignments of Intellectual Property, terminations of controlagreements and other similar discharge or release documents (and, ifapplicable, in recordable form) (collectively, “Release Documents”) as are necessary to release, of record,the Liens and security interests granted pursuant to this Agreement and anyother Credit Documents as such Credit Partyshall reasonably request to evidence such termination, all without anyrepresentation, warranty or recourse whatsoever. If a Credit Party shallacquire any property or asset securing Indebtedness in accordance with Section 6.1(j) or(k) and such Credit Party is prohibited at the time of acquisition (and inthe case of Section 6.1(k), so long as such prohibition is not agreed toin contemplation of such acquisition) by any agreement or contractualarrangement from allowing the Collateral Agent to have a Lien on such propertyor assets, the Collateral Agent will, upon such Credit Party’s request and atsuch Credit Party’s expense, execute and deliver to such Credit Party suchRelease Documents with respect to such property or asset as such Credit Partyshall reasonably request to evidence the release of Collateral Agent’s Lien onthe property or asset so acquired.

(b)   Right to Realize on Collateral and EnforceGuaranty. Anything contained in any of the Credit Documents to the contrarynotwithstanding, Company, Administrative Agent, Collateral Agent and eachLender hereby agree that (i) no Lender shall have any right individuallyto realize upon any of the Collateral or to enforce the Guaranty, it beingunderstood and agreed that all powers, rights and remedies hereunder may beexercised solely by Administrative Agent, on behalf of Lenders in accordancewith the terms hereof and all powers, rights and remedies under the CollateralDocuments may be exercised solely by Collateral Agent, and (ii) in theevent of a foreclosure by Collateral Agent on any of the Collateral pursuant

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to a public or private sale,Collateral Agent or any Lender may be the purchaser of any or all of suchCollateral at any such sale and Collateral Agent, as agent for andrepresentative of Secured Parties (but not any Lender or Lenders in its ortheir respective individual capacities unless Requisite Lenders shall otherwiseagree in writing) shall be entitled, for the purpose of bidding and makingsettlement or payment of the purchase price for all or any portion of theCollateral sold at any such public sale, to use and apply any of the Obligationsas a credit on account of the purchase price for any collateral payable byCollateral Agent at such sale.

SECTION 10.  MISCELLANEOUS

10.1.       Notices. Unless otherwise specificallyprovided herein, any notice or other communication herein required or permittedto be given to a Credit Party, Syndication Agent,Collateral Agent, Administrative Agent, Swing Line Lender, Issuing Bank orDocumentation Agent, shall be sent to such Person’s address as set forth onAppendix B or in the other relevant Credit Document, and in the case of anyLender, the address as indicated on Appendix B or otherwise indicated toAdministrative Agent and Company in writing. Each notice hereunder shall be inwriting and may be personally served or sent by telefacsimile or United States certifiedor registered mail or courier service and shall be deemed to have been givenwhen delivered in person or by courier service and signed for against receiptthereof, upon receipt of telefacsimile, or three Business Days after depositingit in the United States mail with postage prepaid and properly addressed; provided,no notice to any Agent shall be effective until received by such Agent; providedfurther, any such notice or other communication shall at the request ofAdministrative Agent be provided to any sub-agent appointed pursuant to Section 9.3(c) hereofas designated by Administrative Agent from time to time.

10.2        Expenses. Whether or not the transactionscontemplated hereby shall be consum­mated, Company agrees to pay promptly (a) allthe actual and reasonable costs and expensesincurred by the Lead Arrangers and each Agent in connection with preparation ofthe Credit Documents and any consents, amendments, waivers or othermodifications thereto; (b) all the costs of furnishing all opinions bycounsel for Company and the other Credit Parties; (c) the reasonable fees,expenses and disbursements of counsel to Agents (in each case includingallocated costs of internal counsel) in connection with the negotiation,preparation, execution and administration of the Credit Documents and anyconsents, amendments, waivers or other modifications thereto and any otherdocuments or matters requested by Company; (d) all the actual costs andreasonable expenses of creating and perfecting Liens in favor of CollateralAgent, for the benefit of Lenders pursuant hereto, including filing andrecording fees, expenses and taxes, stamp or documentary taxes, search fees,title insurance premiums and reasonable fees, expenses and disbursements ofcounsel to each Agent and of counsel providing any opinions that any Agent orRequisite Lenders may reasonably request in respect of the Collateral or theLiens created pursuant to the Collateral Documents; (e) all the actualcosts and reasonable

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fees, expenses anddisbursements of any auditors, accountants, consultants or appraisers; (f) allthe actual costs and reasonable expenses (including the reasonable fees,expenses and disbursements of any appraisers, consultants, advisors and agentsemployed or retained by Collateral Agent and its counsel) in connection withthe custody or preservation of any of the Collateral; (g) all other actualand reasonable costs and expenses incurred by each Agent in connection with thesyndication of the Loans and Commitments and the negotiation, preparation andexecution of the Credit Documents and any consents, amendments, waivers orother modifications thereto and the transactions contemplated thereby; and (h) afterthe occurrence of an Event of Default, all costs and expenses, including reasonableattorneys’ fees (including allocated costs of internal counsel) and costs ofsettlement, incurred by any Agent and Lenders in enforcing any Obligations ofor in collecting any payments due from any Credit Party hereunder or under theother Credit Documents by reason of such Default or Event of Default (includingin connection with the sale of, collection from, or other realization upon anyof the Collateral or the enforcement of the Guaranty) or in connection with anyrefinancing or restructuring of the credit arrangements provided hereunder inthe nature of a “work-out” or pursuant to any insolvency or bankruptcycases or proceedings.

10.3.       Indemnity.

(a)   In addition to the payment of expensespursuant to Section 10.2, whether or not the transactions contemplatedhereby shall be consummated, each Credit Party agrees to defend (if requestedby the Indemnitees and subject to Indemnitees’ selection of counsel),indemnify, pay and hold harmless, each Agent, Lead Arranger and Lender and theIssuing Bank and the officers, partners, directors, trustees, employees,agents, sub-agents and Affiliates of each Agent, each Lead Arranger, eachLender and the Issuing Bank (each, an “Indemnitee”), from and against any and all IndemnifiedLiabilities; provided, no Credit Party shall have any obligation to anyIndemnitee hereunder with respect to any Indemnified Liabilities to the extentsuch Indemnified Liabilities arise from the gross negligence or willfulmisconduct of that Indemnitee. To the extent that the undertakings to defend,indemnify, pay and hold harmless set forth in this Section 10.3 may beunenforceable in whole or in part because they are violative of any law orpublic policy, the applicable Credit Party shall contribute the maximum portionthat it is permitted to pay and satisfy under applicable law to the payment andsatisfaction of all Indemnified Liabilities incurred by Indemnitees or any ofthem.

(b)   To the extent permitted by applicable law, noCredit Party shall assert, and each Credit Party hereby waives, any claimagainst Lenders, Agents, Lead Arrangers and Issuing Bank and their respectiveAffiliates, directors, employees, attorneys, agents or sub-agents, on anytheory of liability, for special, indirect, consequential or punitive damages  (as opposed to direct or actual damages)(whether or not the claim therefor is based on contract, tort or duty imposedby any applicable legal requirement) arising out of, in connection with, as aresult of, or in any way related to, this Agreement or any Credit Document orany agreement or instrument

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contemplated hereby or thereby orreferred to herein or therein, the transactions contemplated hereby or thereby,any Loan or the use of the proceeds thereof or any act or omission or eventoccurring in connection therewith, and each of Holdings and Company herebywaives, releases and agrees not to sue upon any such claim or any such damages,whether or not accrued and whether or not known or suspected to exist in itsfavor.

10.4.       Set-Off. In addition to any rights nowor hereafter granted under applicable law and not by way of limitation of anysuch rights, upon the occurrence of any Event ofDefault each Lender is hereby authorized by each Credit Party at any time orfrom time to time subject to the consent of Administrative Agent (such consentnot to be unreasonably withheld or delayed), without prior notice to any CreditParty or to any other Person (other than Administrative Agent), any such noticebeing hereby expressly waived, to set off and to appropriate and to apply anyand all deposits (general or special, including Indebtedness evidenced bycertificates of deposit, whether matured or unmatured, but not including trustaccounts) and any other Indebtedness at any time held or owing by such Lenderto or for the credit or the account of any Credit Party against and on accountof the obligations and liabilities of any Credit Party to such Lenderhereunder, the Letters of Credit and participations therein and under the otherCredit Documents, including all claims of any nature or description arising outof or connected hereto, the Letters of Credit and participations therein orwith any other Credit Document, irrespective of whether or not (a) suchLender shall have made any demand hereunder or (b) the principal of or theinterest on the Loans or any amounts in respect of the Letters of Credit or anyother amounts due hereunder shall have become due and payable pursuant to Section 2and although such obligations and liabilities, or any of them, may becontingent or unmatured. Administrative Agent and each Lender agree promptly tonotify Company after any such set-off and application made by such Person.

10.5.       Amendments and Waivers.

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

(b)   Affected Lenders’ Consent. Without thewritten consent of each Lender  (otherthan a Defaulting Lender) that would be affected thereby, no amendment,modification, termination, or consent shall be effective if the effect thereofwould:

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

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

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(iii)   extend thestated expiration date of any Letter of Credit beyond the Revolving CommitmentTermination Date;

(iv)   reduce therate of interest on any Loan (other than any waiver of any increase in theinterest rate applicable to any Loan or any reimbursement obligation in respectof any Letter of Credit pursuant to Section 2.8(f) or 2.10) or anyfee payable hereunder;

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

(vi)   reduce theprincipal amount of any Loan or any reimbursement obligation in respect of anyLetter of Credit;

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

(viii)   amend thedefinition of “Requisite Lenders” or “Pro Rata Share”; provided, with the consent of Requisite Lenders, additionalextensions of credit pursuant hereto may be included in the determination of “Requisite Lenders” or “Pro Rata Share” on substantially the same basis asthe Existing Term Loan Commitments, the Existing Term Loans, the RevolvingCommitments and the Revolving Loans are included on the Closing Date;

(ix)   release allor substantially all of the Collateral or all or substantially all of theGuarantors from the Guaranty except as expressly provided in the CreditDocuments; or

(x)   consent tothe assignment or transfer by any Credit Party of any of its rights andobligations under any Credit Document except as otherwise provided herein.

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

(i)   increase anyRevolving Commitment of any Lender over the amount thereof then in effectwithout the consent of such Lender; provided, no amendment, modificationor waiver of any condition precedent, covenant, Default or Event of Defaultshall constitute an increase in any Revolving Commitment of any Lender;

 

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

(iii)   amend thedefinition of “Requisite Class Lenders” without the consent of Requisite Class Lenders ofeach Class; provided, with the consent of the Requisite Lenders,additional extensions of credit pursuant hereto may be included in thedetermination of such “Requisite Class Lenders” on substantially the same basis as the Existing TermLoan Commitments, the Existing Term Loans, the Revolving Commitments and theRevolving Loans are included on the Closing Date;

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

(v)   amend,modify, terminate or waive any obligation of Lenders relating to the purchaseof participations in Letters of Credit as provided in Section 2.4(e) withoutthe written consent of Administrative Agent and of Issuing Bank; or

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

(d)   Execution of Amendments, etc. AdministrativeAgent may, but shall have no obligation to, with the concurrence of any Lender,execute amendments, modifications, waivers or consents on behalf of such  Lender. Any waiver or consent shall beeffective only in the specific instance and for the specific purpose for whichit was given. No notice to or demand on any Credit Party in any case shallentitle any Credit Party to any other or further notice or demand in similar orother circumstances. Any amendment, modification, termination, waiver orconsent effected in accordance with this Section 10.5 shall be bindingupon each Lender at the time outstanding, each future Lender and, if signed bya Credit Party, on such Credit Party.

10.6.       Successors and Assigns; Participations.

(a)   Generally. This Agreement shall bebinding upon the parties hereto and their respective successors and assigns andshall inure to the benefit of the parties hereto and the successors and assignsof Lenders. No Credit Party’s rights or obligations hereunder nor any interesttherein may be assigned or delegated by any Credit Party without the priorwritten

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consent of all Lenders. Nothing inthis Agreement, expressed or implied, shall be construed to confer upon anyPerson (other than the parties hereto, their respective successors and assignspermitted hereby and, to the extent expressly contemplated hereby, Affiliatesof each of the Agents and Lenders) any legal or equitable right, remedy or claimunder or by reason of this Agreement.

(b)   Register. Company, AdministrativeAgent and Lenders shall deem and treat the Persons listed as Lenders in theRegister as the holders and owners of the corresponding Commitments and Loanslisted therein for all purposes hereof, and no assignment or transfer of anysuch Commitment or Loan shall be effective, in each case, unless and untilrecorded in the Register following receipt of (x) a written or electronicconfirmation of an assignment issued by a Settlement Service pursuant to Section 10.6(d) (a“Settlement Confirmation”) or (y) anAssignment Agreement effecting the assignment or transfer thereof, in eachcase, as provided in Section 10.6(d). Each assignment shall be recorded inthe Register on the Business Day the Settlement Confirmation or AssignmentAgreement is received by the Administrative Agent, if received by 12:00 noonNew York City time, and on the following Business Day if received after suchtime, prompt notice thereof shall be provided to Company and a copy of suchAssignment Agreement or Settlement Confirmation shall be maintained, asapplicable. The date of such recordation of a transfer shall be referred toherein as the “Assignment Effective Date.”  Any request, authority or consent of any Personwho, at the time of making such request or giving such authority or consent, islisted in the Register as a Lender shall be conclusive and binding on anysubsequent holder, assignee or transferee of the corresponding Commitments orLoans. The Register shall be available for inspection by the Company or anyLender at any reasonable time upon reasonable notice.

(c)   Right to Assign. Each Lender shallhave the right at any time to sell, assign or transfer all or a portion of itsrights and obligations under this Agreement, including, without limitation, allor a portion of its Commitment or Loans owing to it or other Obligation (provided,however, that each such assignment shall be of a uniform, and notvarying, percentage of all rights and obligations under and in respect of anyLoan and any related Commitments):

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

(ii)   to anyPerson meeting the criteria of clause (ii) of the definition of the term “EligibleAssignee” and, in the case of assignments of Revolving Loans or RevolvingCommitments to any such Person (except in the case of assignments made by or toGSCP), consented to by each of Company and Administrative Agent (such consentnot to be (x) unreasonably withheld or delayed or, (y) in the case ofCompany, required at any time an Event of Default shall have occurred and thenbe continuing); provided, further each such assignment pursuant to this Section 10.6(c)(ii) shallbe in an aggregate

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amount of not less than (A) $5,000,000 (or such lesseramount as may be agreed to by Company and Administrative Agent or as shallconstitute the aggregate amount of the Revolving Commitments and RevolvingLoans of the assigning Lender) with respect to the assignment of the RevolvingCommitments and Revolving Loans and (B) $1,000,000 (or such lesser amountas may be agreed to by Company and Administrative Agent or as shall constitutethe aggregate amount of the Term Loan of the assigning Lender) with respect tothe assignment of Term Loans; provided further, that (1) simultaneousassignments by or to two or more related funds will be treated as oneassignment for purposes of determining whether the minimum assignmentrequirement is met and (2) no consent of Company or Administrative Agentshall be required in connection with any assignments to or from GSCP duringprimary syndication.

(d)   Mechanics. Assignments of Term Loansby Lenders may be made via an electronic settlement system acceptable toAdministrative Agent as designated in writing from time to time to the Lendersby Administrative Agent (the “SettlementService”). Each such assignment shall be effected by the assigningLender and proposed assignee pursuant to the procedures then in effect underthe Settlement Service, which procedures shall be consistent with the otherprovisions of this Section 10.6. Each assignor Lender and proposedassignee shall comply with the requirements of the Settlement Service inconnection with effecting any transfer of Loans pursuant to the SettlementService. Administrative Agent’s and Company’s consent shall be deemed to havebeen granted pursuant to Section 10.6(c)(ii) with respect to anytransfer effected through the Settlement Service. Subject to the otherrequirements of this Section 10.6, assignments and assumptions of TermLoans may also be effected by manual execution and delivery to theAdministrative Agent of an Assignment Agreement with, in the case of assignments to Persons meeting the requirements of clause (ii) ofthe definition of “Eligible Assignee”, the prior written consent of eachof Company and Administrative Agent (such consent not to be (x) unreasonablywithheld or delayed or (y) in the case of Company, required at any time anEvent of Default shall have occurred and then be continuing). Initially,assignments and assumptions of Term Loans shall be effected by such manualexecution until Administrative Agent notifies Lenders to the contrary. Assignmentsand assumptions of Revolving Loans and Revolving Commitments shall only beeffected by manual execution and delivery to the Administrative Agent of anAssignment Agreement. Assignments made pursuant to the foregoing provisionshall be effective as of the Assignment Effective Date. In connection with allassignments there shall be delivered to Administrative Agent such forms,certificates or other evidence, if any, with respect to United States federalincome tax withholding matters as the assignee under such Assignment Agreementmay be required to deliver pursuant to Section 2.20(c). Notwithstandinganything herein or in any Assignment Agreement to the contrary and (i) unlessnotice to the contrary is delivered to the Lenders from the Administrative Agentor (ii) so long as no Default or Event of Default has occurred and iscontinuing, payment to the assignor by the assignee in respect of thesettlement of an assignment of any Term Loan (but not any

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RevolvingLoan or Revolving Commitment) shall include such compensation to the assignoras may be agreed upon by the assignor and the assignee with respect to allunpaid interest which has accrued on such Term Loan to but excluding theAssignment Effective Date. On and after the applicable Assignment EffectiveDate, the applicable assignee shall be entitled to receive all interest paid orpayable with respect to the assigned Term Loan, whether such interest accruedbefore or after the applicable Assignment Effective Date.

(e)   Representations and Warranties of Assignee.Each Lender, upon execution and delivery hereof or upon succeeding to aninterest in the Commitments and Loans, as the case may be, represents andwarrants as of the Closing Date or as of the Assignment Effective Date  that (i) it is an Eligible Assignee; (ii) ithas experience and expertise in the making of or investing in commitments orloans such as the applicable Commit­ments or Loans, as the case may be; and (iii) itwill make or invest in, as the case may be, its Commitments or Loans for itsown account in the ordinary course of its business and without a view todistribution of such Commitments or Loans within the meaning of the SecuritiesAct or the Exchange Act or other federal securities laws (it being understoodthat, subject to the provisions of this Section 10.6, the disposition ofsuch Revolving Commitments or Loans or any interests therein shall at all timesremain within its exclusive control).

(f)   Effect of Assignment. Subject to theterms and conditions of this Section 10.6, as of the Assignment EffectiveDate: (i) the assignee thereunder shall have the rights and obligations ofa “Lender” hereunder to the extent of its interest in the Loans and Commitmentsas reflected in the Register and shall thereafter be a party hereto and a “Lender”for all purposes hereof; (ii) the assigning Lender thereunder shall, tothe extent that rights and obligations hereunder have been assigned to theassignee, relinquish its rights (other than any rights which survive thetermination hereof under Section 10.8) and be released from itsobligations hereunder (and, in the case of an assignment covering all or theremaining portion of an assigning Lender’s rights and obligations hereunder,such Lender shall cease to be a party hereto on the Assignment Effective Date; provided,anything contained in any of the Credit Documents to the contrarynotwithstanding, (y) Issuing Bank shall continue to have all rights andobligations thereof with respect to such Letters of Credit until thecancellation or expiration of such Letters of Credit and the reimbursement ofany amounts drawn thereunder and (z) such assigning Lender shall continueto be entitled to the benefit of all indemnities hereunder as specified hereinwith respect to matters arising out of the prior involvement of such assigningLender as a Lender hereunder); (iii) the Commitments shall be modified toreflect the Commitment of such assignee and any Revolving Commitment of suchassigning Lender, if any; and (iv) if any such assignment occurs after theissuance of any Note hereunder, the assigning Lender shall, upon theeffectiveness of such assignment or as promptly thereafter as practicable,surrender its applicable Notes to Administrative Agent for cancellation, andthereupon Company shall issue and deliver new Notes, if so requested by theassignee and/or assigning Lender, to such assignee and/or to such

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assigningLender, with appropriate insertions, to reflect the new Revolving Commitmentsand/or outstanding Loans of the assignee and/or the assigning Lender.

(g)   Participations. Each Lender shall havethe right at any time to sell one or more participations to any Person (otherthan Holdings, any of its Subsidiaries or any of its Affiliates) in all or anypart of its Commitments, Loans or in any other Obligation. The holder of anysuch participation, other than an Affiliate of the Lender granting suchparticipation, shall not be entitled to require such Lender to take or omit totake any action hereunder, or to consent to any action to be taken or omittedhereunder by such Lender, except with respect to any amendment, modification orwaiver that would (i) extend the final scheduled maturity of any Loan,Note or Letter of Credit (unless such Letter of Credit is not extended beyondthe Revolving Commitment Termination Date) in which such participant isparticipating, or reduce the rate or extend the time of payment of interest orfees thereon (except in connection with a waiver of applicability of any post-defaultincrease in interest rates) or reduce the principal amount thereof, or increasethe amount of the participant’s participation over the amount thereof then ineffect (it being understood that a waiver of any Default or Event of Default orof a mandatory reduction in the Commitment shall not constitute a change in theterms of such participation, and that an increase in any Commitment or Loanshall be permitted without the consent of any participant if the participant’sparticipation is not increased as a result thereof), (ii) consent to theassignment or transfer by any Credit Party of any of its rights and obligationsunder this Agreement (except as otherwise expressly permitted by a CreditDocument) or (iii) release all or substantially all of the Collateralunder the Collateral Documents (except as expressly provided in the CreditDocuments) supporting the Loans hereunder in which such participant isparticipating.  Company agrees that eachparticipant shall be entitled to the benefits of Sections 2.18(c), 2.19 and2.20 to the same extent as if it were a Lender and had acquired its interest byassignment pursuant to paragraph (c) of this Section; provided, (i) aparticipant shall not be entitled to receive any greater payment under Section 2.19or 2.20 than the applicable Lender would have been entitled to receive withrespect to the participation sold to such participant, unless the sale of theparticipation to such participant is made with Company’s prior written consentand (ii) a participant that would be a Non-US Lender if it were aLender shall not be entitled to the benefits of Section 2.20 unlessCompany is notified of the participation sold to such participant and suchparticipant agrees, for the benefit of Company, to comply with Section 2.20as though it were a Lender. To the extent permitted by law, each participantalso shall be entitled to the benefits of Section 10.4 as though it were aLender, provided such Participant agrees to be subject to Section 2.17 asthough it were a Lender.

(h)   Certain Other Assignments. In additionto any other assignment permitted pursuant to this Section 10.6, anyLender may assign and/or pledge all or any portion of its Loans, the otherObligations owed by or to such Lender, and its Notes, if any, to secureobligations of such Lender including, without limitation, any Federal ReserveBank as collateral

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securitypursuant to Regulation A of the Board of Governors of the Federal ReserveSystem and any operating circular issued by such Federal Reserve Bank; provided,no Lender, as between Company and such Lender, shall be relieved of any of itsobligations hereunder as a result of any such assignment and pledge, and providedfurther, in no event shall the applicable Federal Reserve Bank, pledgeeor trustee be considered to be a “Lender” or be entitled to require theassigning Lender to take or omit to take any action hereunder.

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

10.8.       Survival of Representations, Warranties and Agreements. Allrepresentations, warranties and agreements made herein shall survive theexecution and delivery hereofand the making of any Credit Extension. Notwithstanding anything herein orimplied by law to the contrary, the agreements of each Credit Party set forthin Sections 2.18(c), 2.19, 2.20, 10.2, 10.3 and 10.4 and the agreements ofLenders set forth in Sections 2.17, 9.3(b) and 9.6 shall survive thepayment of the Loans, the cancellation or expiration of the Letters of Creditand the reimbursement of any amounts drawn thereunder, and the terminationhereof.

10.9.       No Waiver; Remedies Cumulative. No failureor delay on the part of any Agent or any Lender in the exercise of any power,right or privilege hereunder or under any other Credit Documentshall impair such power, right or privilege or be construed to be a waiver ofany default or acquiescence therein, nor shall any single or partial exerciseof any such power, right or privilege preclude other or further exercise thereofor of any other power, right or privilege. The rights, powers and remediesgiven to each Agent and each Lender hereby are cumulative and shall be inaddition to and independent of all rights, powers and remedies existing byvirtue of any statute or rule of law or in any of the other CreditDocuments or any of the Hedge Agreements. Any forbearance or failure toexercise, and any delay in exercising, any right, power or remedy hereundershall not impair any such right, power or remedy or be construed to be a waiverthereof, nor shall it preclude the further exercise of any such right, power orremedy.

10.10.     Marshalling; Payments Set Aside. Neither anyAgent nor any Lender shall be under any obligation to marshal any assets infavor of any Credit Party or any other Person or against orin payment of any or all of the Obligations. To the extent that any CreditParty makes a payment or payments to Administrative Agent or Lenders (or toAdministrative Agent, on behalf of Lenders), or Administrative Agent or Lendersenforce any security interests or exercise their rights of setoff, and suchpayment or payments or the proceeds of such enforcement or setoff or any partthereof are subsequently invalidated, declared to be fraudulent orpreferential,

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set aside and/or requiredto be repaid to a trustee, receiver or any other party under any bankruptcylaw, any other state or federal law, common law or any equitable cause, then,to the extent of such recovery, the obligation or part thereof originallyintended to be satisfied, and all Liens, rights and remedies therefor orrelated thereto, shall be revived and continued in full force and effect as ifsuch payment or payments had not been made or such enforcement or setoff hadnot occurred.

10.11.     Severability. In case any provision in orobligation hereunder or any Note shall be invalid, illegal or unenforceable inany jurisdiction, the validity, legality and enforceability of the remainingprovisions or obligations, or of such provision or obligation in any otherjurisdiction, shall not in any way be affected or impaired thereby.

10.12.     Obligations Several; Independent Nature of Lenders’ Rights. Theobligations of Lenders hereunder are several and no Lender shall be responsiblefor the obligations orCommitment of any other Lender hereunder. Nothing contained herein or in anyother Credit Document, and no action taken by Lenders pursuant hereto orthereto, shall be deemed to constitute Lenders as a partnership, anassociation, a joint venture or any other kind of entity. The amounts payableat any time hereunder to each Lender shall be a separate and independent debt,and subject to the final paragraph of Section 8 and Section 9.8(b),each Lender shall be entitled to protect and enforce its rights arisinghereunder and it shall not be necessary for any other Lender to be joined as anadditional party in any proceeding for such purpose.

10.13.     Headings. Section headings herein areincluded herein for convenience of reference only and shall not constitute apart hereof for any other purpose or be given anysubstantive effect.

10.14.     APPLICABLE LAW. THISAGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BEGOVERNED BY, AND SHALL BE CONSTRUEDAND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUTREGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.

10.15.     CONSENT TO JURISDICTION. ALL JUDICIALPROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR TO ANY OTHER CREDIT DOCUMENT,OR TO ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURTOF COMPETENT JURISDICTION IN THE STATE AND COUNTY OF NEW YORK. BY EXECUTING ANDDELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITHITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND UNCONDITIONALLY THENONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSEOF

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FORUM NON CONVENIENS; (c) AGREESTHAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BEMADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THEAPPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1;(d) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c) ABOVE IS SUFFICIENTTO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCHPROCEED­ING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDINGSERVICE IN EVERY RESPECT; AND (e) AGREES THAT AGENTS AND LENDERS RETAINTHE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRINGPROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.

10.16.     WAIVER OF JURY TRIAL. EACH OF THEPARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OFANY CLAIM OR CAUSE OF ACTIONBASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS ORANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOANTRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THESCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALLDISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECTMATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OFDUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETOACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESSRELATION­SHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTOTHIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITSRELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WAR­RANTS AND REPRESENTSTHAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLYAND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGALCOUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIEDEITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLYREFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIESHERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TOANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS

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MADE HEREUNDER. IN THE EVENT OFLITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BYTHE COURT.

10.17.     Confidentiality. Each Lender shall hold allnon-public informa­tion regarding Holdings and its Subsidiaries and theirbusinesses identified as such by Company andobtained by such Lender pursuant to the requirements hereof  in accordance with such Lender’s customaryprocedures for handling confidential information of  such nature, it being understood and agreedby Company that, in any event, a Lender may make (i) disclosures of suchinformation to Affiliates of such Lender and to their agents and advisors (andto other persons authorized by a Lender or Agent to organize, present ordisseminate such information in connection with disclosures otherwise made inaccordance with this Section 10.17), (ii) disclosures of suchinformation reasonably required by any pledgee under Section 10.6(h) orany bona fide or potential assignee, transferee or partici­pant in connectionwith the contem­plated assignment, transfer or participation by such Lender ofany Loans or any participations therein or by any direct or indirectcontractual counterparties (or the profession­al advisors thereto) in HedgeAgreements (provided, such counterparties and advisors are advised of and agreeto be bound by the provisions of this Section 10.17), (iii) disclosureto any rating agency when required by it, provided that, prior to anydisclosure, such rating agency shall undertake in writing to preserve theconfidentiality of any confidential information relating to the Credit Partiesreceived by it from any of the Agents or any Lender, and (iv) disclo­suresrequired or requested by any govern­mental agency or repre­sentative thereof orby the NAIC or pursuant to legal or judicial process; provided, unlessspecifically prohibited by applicable law or court order, each Lender shallmake reasonable efforts to notify Company of any request by any governmental agencyor repre­sentative thereof (other than any such request in connection with anyexamina­tion of the financial condition or other routine examination of suchLender by such governmental agency) for disclosure of any such non-publicinformation prior to disclosure of such informa­tion.

10.18.     Usury Savings Clause. Notwithstanding anyother provision herein, the aggregate interest rate charged with respect to anyof the Obligations, including all chargesor fees in connection therewith deemed in the nature of interest underapplicable law shall not exceed the Highest Lawful Rate. If the rate ofinterest (determined without regard to the preceding sentence) under thisAgreement at any time exceeds the Highest Lawful Rate, the outstanding amountof the Loans made hereunder shall bear interest at the Highest Lawful Rateuntil the total amount of interest due hereunder equals the amount of interestwhich would have been due hereunder if the stated rates of interest set forthin this Agreement had at all times been in effect. In addition, if when theLoans made hereunder are repaid in full the total interest due hereunder(taking into account the increase provided for above) is less than the totalamount of interest which would have been due hereunder if the stated rates ofinterest set forth in this Agreement had at all times been in effect, then tothe extent permitted by law, Company shall pay to Administrative Agent anamount equal to the difference between the amount of interest

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paid and the amount ofinterest which would have been paid if the Highest Lawful Rate had at all timesbeen in effect. Notwithstanding the foregoing, it is the intention of Lendersand Company to conform strictly to any applicable usury laws. Accordingly, ifany Lender contracts for, charges, or receives any consideration whichconstitutes interest in excess of the Highest Lawful Rate, then any such excessshall be cancelled automatically and, if previously paid, shall at such Lender’soption be applied to the outstanding amount of the Loans made hereunder or berefunded to Company.

10.19.     Counterparts. This Agreement may be executedin any number of counterparts, each of which when so executed and deliveredshall be deemed an original, but all suchcounterparts together shall constitute but one and the same instrument.

10.20.     Effectiveness. This Agreement shall becomeeffective upon the execution of a counterpart hereof by each of the partieshereto and receipt by Company and AdministrativeAgent of written or telephonic notification of such execution and authorizationof delivery thereof.

10.21.     Patriot Act. Each Lenderand Administrative Agent (for itself and not on behalf of any Lender) herebynotifies Company that pursuant to the requirements of the Act, it is required to obtain, verify andrecord information that identifies Company, which information includes the nameand address of Company and other information that will allow such Lender orAdministrative Agent, as applicable, to identify Company in accordance with theAct.

10.22.     Electronic Execution of Assignments. Thewords “execution,” “signed,” “signature” and words of like import in anyAssignment Agreement shall be deemed to include electronicsignatures or the keeping of records in electronic form, each of which shall beof the same legal effect, validity or enforceability as a manually executedsignature or the use of a paper-based recordkeeping system, as the case may be,to the extent and as provided for in any applicable law, including the FederalElectronic Signatures in Global and National Commerce Act, the New York StateElectronic Signatures and Records Act, or any other similar state laws based onthe Uniform Electronic Transactions Act.

[Remainder of page intentionallyleft blank]

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APPENDIXA
TO CREDIT AND GUARANTY AGREEMENT

 

Revolving Commitments

 

On file withAdministrative Agent

APPENDIX A-1



 

APPENDIXB
TO CREDIT AND GUARANTY AGREEMENT

Notice Addresses

DYNCORP INTERNATIONAL INC.

c/o Veritas Capital Management II, L.L.C.
660 Madison Avenue, 14th Floor
New York, New York  10021
Attention: Robert McKeon
Telecopier:



(212) 688-9411

DYNCORP INTERNATIONAL LLC
DIV CAPITAL CORPORATION
DTS AVIATION SERVICES, LLC
DYNCORP AEROSPACE OPERATIONS, LLC
DYNCORP INTERNATIONAL SERVICES, INC.
DYN MARINE SERVICES, LLC
DYN MARINE SERVICES OF VIRGINIA, LLC
SERVICES INTERNATIONAL LLC
WORLDWIDE HUMANITARIAN SERVICES LLC
DYNCORP INTERNATIONAL OF NIGERIA LLC








8445 Freeport Parkway, Suite 400
Irving, Texas 75063
Attention: Chief Financial Officer
Telecopier: (972) 929-2848


in each case, with a copy to:

Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Attention:  Benjamin M. Polk
Telecopier: (212) 593-5955



APPENDIX B-1



 

GOLDMAN SACHSCREDIT PARTNERS L.P.,
as Joint Lead Arranger, Administrative Agent,
Collateral Agent, Syndication Agent, Swing Line Lender and a Lender

Goldman Sachs Credit Partners L.P.
85 Broad Street
New York, New York  10004
Attention:  Stephen King
Telecopier:  (212) 357-0932



with a copy to:

Goldman Sachs Credit Partners L.P.
85 Broad Street
New York, New York  10004
Attention: John Makrinos
Telecopier:  (212) 357-4597



APPENDIX B-2



 

BEAR STEARNSCORPORATE LENDING INC.,
as a Lender

Bear Stearns Corporate Lending Inc.
383 Madison Avenue
New York, New York  10179
Attention:  Stephen J. Kampf
Telecopier:  (917) 849-2127



with a copy to:

Bear Stearns Corporate Lending Inc.
383 Madison Avenue
New York, New York 10179
Attention: Victor Bulzacchelli
Telecopier:  (917) 849-0519



APPENDIX B-3



 

BANK OF AMERICA,N.A.,
as Issuing Bank, Documentation Agent and a Lender

1101 Wootton Parkway, 4th Floor
Rockville, Maryland 20852
Attention: Derinda Hammond
Telecopier: (301) 517-3140


APPENDIX B-4