BRIDGE LOAN AGREEMENT

EXHIBIT 1.1

EXECUTION COPY

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TABLE OF CONTENTS

Page

ARTICLE I

Definitions

ARTICLE II

The Loans

ARTICLE III

Representations and Warranties

ARTICLE IV

Conditions

SECTION 4.01. Effective Date

ARTICLE V

Affirmative Covenants

ARTICLE VI

Negative Covenants

 

SECTION 6.07. Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries

 

ARTICLE VII

Events of Default

ARTICLE VIII

The Administrative Agent

ARTICLE IX

Miscellaneous

ARTICLE X

Subsidiary Guaranties

SCHEDULES :

Schedule 2.01 — Commitments

Schedule 3.05 — Properties

Schedule 3.06 — Disclosed Matters

Schedule 3.12 — Subsidiaries and Joint Ventures

Schedule 3.13 — Insurance

EXHIBITS :

Exhibit A — Form of Assignment and Assumption

Exhibit B — Form of Opinion of Borrower’s Counsel

Exhibit C — Form of Exchange Note Indenture

Exhibit D — Form of Notice of Extension or Exchange

Exhibit E — Form of Promissory Note

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BRIDGE LOAN AGREEMENT (this “ Agreement ”) dated as of September 9, 2004, among SYMBOL TECHNOLOGIES, INC., the SUBSIDIARY GUARANTORS party hereto, the LENDERS party hereto, and JPMORGAN CHASE BANK, as Administrative Agent.

The parties hereto agree as follows:

ARTICLE I

Definitions

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

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

“ Acquisition ” means the merger of Marvin Acquisition Corp., a Delaware corporation and newly formed wholly owned subsidiary of the Borrower, with and into the Target Company, with the Target Company surviving such merger as a wholly owned subsidiary of the Borrower, as a result of which the issued and outstanding shares of the Target Company’s Capital Stock will be converted into the right to receive the Merger Consideration, in each case pursuant to and in accordance with the terms of the Merger Agreement.

“ Acquisition Documents ” means the Merger Agreement and the other definitive agreements entered into between the parties thereto and their Affiliates in connection with the Acquisition.

“ Additional Assets ” means (1) any property, plant, equipment or intellectual property rights used in a Related Business; (2) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Borrower or another Restricted Subsidiary; or (3) Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary; provided , however , that any such Restricted Subsidiary described in clause (2) or (3) above is primarily engaged in a Related Business.

“ Adjusted LIBO Rate ” means, with respect to any Eurocurrency Loan for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

“ Adjusted Margin ” means, with respect to any Extended Loan, 0 basis points during the one month period commencing on the Initial Maturity Date, which amount shall increase by an additional 50 basis points at the end of each one-month period commencing on the Initial Maturity Date.

“ Adjusted Rate ” means the rate equal to the sum of 50 basis points plus the interest rate borne by the Initial Loans on the day immediately preceding the Initial Maturity Date.

“ Administrative Agent ” means JPMorgan Chase Bank, in its capacity as administrative agent for the Lenders hereunder.

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“ Affiliate ” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing. For purposes of Sections 6.02, 6.04 and 6.05 only, “Affiliate” shall also mean any beneficial owner of Capital Stock representing 10% or more of the total voting power of the Voting Stock (on a fully diluted basis) of the Borrower or of rights or warrants to purchase such Capital Stock (whether or not currently exercisable) and any Person who would be an Affiliate of any such beneficial owner pursuant to the first sentence of this definition.

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

“ Applicable Margin ” means (i) with respect to any Initial Loan that is a Eurocurrency Loan, 400 basis points with respect to any period following the Closing Date and ending prior to November 1, 2004, which amount shall increase by 100 basis points as of November 1, 2004 (unless all Initial Loans shall have been repaid in full on or prior to November 5, 2004, in which case no such increase shall be deemed to have occurred), and which amount shall further increase by an additional 50 basis points at the end of each one-month period commencing on November 1, 2004 until but excluding the Initial Maturity Date and (ii) with respect to any Initial Loan that is an ABR Loan, for any period, the Applicable Margin then applicable to Eurocurrency Loans less 100 basis points.

“ Approved Fund ” has the meaning assigned to such term in Section 9.04.

“ Asset Disposition ” means any sale, lease, transfer or other disposition (or series of related sales, leases, transfers or dispositions) by the Borrower or any Restricted Subsidiary, including any disposition by means of a merger, consolidation or similar transaction (each referred to for the purposes of this definition as a “disposition”), of

(1) any shares of Capital Stock of a Restricted Subsidiary (other than directors’ qualifying shares or shares required by applicable law to be held by a Person other than the Borrower or a Restricted Subsidiary);

(2) all or substantially all the assets of any division or line of business of the Borrower or any Restricted Subsidiary; or

(3) any other assets of the Borrower or any Restricted Subsidiary outside of the ordinary course of business of the Borrower or such Restricted Subsidiary

other than, in the case of clauses (1), (2) and (3) above, (A) a disposition by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to a Restricted Subsidiary, (B) for purposes of Sections 6.04 and 2.06(c) only, (i) a disposition that constitutes a Restricted Payment (or would constitute a Restricted Payment but for the exclusions from the definition thereof) and that is not prohibited by Section 6.02 and (ii) a disposition of all or substantially all the assets of the Borrower in accordance with Section 6.11, (C) a disposition of assets with a fair market value of less than $1.0 million, (D) a disposition of cash or Temporary Cash Investments, (E) the creation of a Lien (but not the sale or other disposition of the property subject to such Lien), (F) a disposition of obsolete, damaged or worn out equipment or property in the ordinary course of business, (G) sales, licenses or leases of inventory, property, equipment or intellectual property in the ordinary course of business and (H) a disposition of lease receivables and related assets to Symbolease Funding LLC pursuant to the Bank of Tokyo Securitization, except to the extent prohibited by Section 6.02.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

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

“ Average Life ” means, as of the date of determination, with respect to any Indebtedness, the quotient obtained by dividing (1) the sum of the products of the numbers of years from the date of determination to the dates of each successive scheduled principal payment of or redemption or similar payment with respect to such Indebtedness multiplied by the amount of such payment by (2) the sum of all such payments.

“ Bank of Tokyo Securitization ” means the Receivables Purchase Agreement among Symbolease, Inc., Symbolease Funding LLC, Victory Receivables Corporation and The Bank of Tokyo—Mitsubishi, Ltd., together with the other documents executed in connection therewith, in each case as in effect on the Closing Date, pursuant to which certain Subsidiaries of the Borrower obtain financing in respect of certain lease receivables of such Subsidiaries.

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

“ Board of Directors ” means the board of directors of the Borrower or any committee thereof duly authorized to act on behalf of such board of directors.

“ Borrower ” means Symbol Technologies, Inc., a Delaware corporation.

“ Borrowing Request ” means a request by the Borrower for a borrowing in accordance with Section 2.03.

“ Bridge Loan Documents ” means this Agreement, the Fee Letter, the Exchange Notes, the Exchange Note Indenture, all guaranties of the Loans and Exchange Notes, and any Security Documents, in each case including any annexes, exhibits, appendices or schedules thereto.

“ Business Day ” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurocurrency Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

“ Capital Expenditures ” means, for any period, the additions to property, plant and equipment and other capital expenditures of the Borrower and its consolidated Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of the Borrower for such period prepared in accordance with GAAP.

“ Capital Lease Obligation ” means an obligation that is required to be classified and accounted for as a capital lease for financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. For purposes of Section 6.09, a Capital Lease Obligation will be deemed to be secured by a Lien on the property being leased.

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

“ Change in Law ” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 2.09(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.

“ Change of Control ” means the occurrence of any of the following events:

(1) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause (1) such person shall be deemed to have “beneficial ownership” of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 35% of the total voting power of the Voting Stock of the Borrower (for purposes of this clause (1), such person shall be deemed to beneficially own any Voting Stock of a specified person held by any other Person (the “parent entity”) if such person is the beneficial owner (as defined above), directly or indirectly, of more than 35% of the voting power of the Voting Stock of such parent entity);

(2) individuals who on the Closing Date constituted the Board of Directors (together with any new directors whose election by such Board of Directors or whose nomination for election by the stockholders of the Borrower was approved by a vote of a majority of the directors of the Borrower then still in office who were either directors on the Closing Date or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors then in office;

(3) the adoption of a plan relating to the liquidation or dissolution of the Borrower; or

(4) the merger or consolidation of the Borrower with or into another Person or the merger of another Person with or into the Borrower, or the sale of all or substantially all the assets of the Borrower (determined on a consolidated basis) to another Person other than a transaction following which (i) in the case of a merger or consolidation transaction, holders of securities that represented 100% of the Voting Stock of the Borrower immediately prior to such transaction (or other securities into which such securities are converted as part of such merger or consolidation transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of the surviving Person in such merger or consolidation transaction immediately after such transaction and (ii) in the case of a sale of assets transaction, each transferee becomes an obligor in respect of the Loans and a Subsidiary of the transferor of such assets.

“ Closing Date ” means the date on which the Lenders make the Initial Loans.

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

“ Commitment Letter ” means the Commitment Letter dated July 26, 2004, among the Borrower, JPMorgan Chase Bank and J.P. Morgan Securities Inc.

“ Consolidated Interest Expense ” means, for any period, the gross interest expense of the Borrower and its Restricted Subsidiaries for such period, as determined in accordance with GAAP; provided , however , that, solely for purposes of Section 6.15, (i) any non-cash interest expense in respect of the SAILs Debt shall be excluded from the calculation of “Consolidated Interest Expense” (to the extent otherwise included therein) and (ii) the commitment fee and takedown fee paid pursuant to the Fee Letter shall be excluded from the calculation of “Consolidated Interest Expense” (to the extent otherwise included therein).

“ Consolidated Leverage Ratio ” as of any date of determination means the ratio of (x) the aggregate amount of Indebtedness of the Borrower and its Restricted Subsidiaries as of such date of determination to (y) EBITDA for the most recent four consecutive fiscal quarters ended for which internal financial statements are available (the “ Reference Period ”); provided , however , that:

(1) if the transaction giving rise to the need to calculate the Consolidated Leverage Ratio is an Incurrence of Indebtedness, the amount of such Indebtedness shall be calculated after giving effect on a pro forma basis to such Indebtedness and the application of the proceeds thereof;

(2) if the Borrower or any Restricted Subsidiary has repaid, repurchased, defeased or otherwise discharged any Indebtedness that was outstanding as of the end of such Reference Period or if any Indebtedness is to be repaid, repurchased, defeased or otherwise discharged on the date of the transaction giving rise to the need to calculate the Consolidated Leverage Ratio (other than, in each case, Indebtedness Incurred under any revolving credit agreement), the aggregate amount of Indebtedness shall be calculated on a pro forma basis and EBITDA shall be calculated as if the Borrower or such Restricted Subsidiary had not earned the interest income, if any, actually earned during the Reference Period in respect of cash or Temporary Cash Investments used to repay, repurchase, defease or otherwise discharge such Indebtedness;

(3) if since the beginning of the Reference Period the Borrower or any Restricted Subsidiary shall have made any Asset Disposition, the EBITDA for the Reference Period shall be reduced by an amount equal to the EBITDA (if positive) directly attributable to the assets which are the subject of such Asset Disposition for the Reference Period or increased by an amount equal to the EBITDA (if negative) directly attributable thereto for the Reference Period;

(4) if since the beginning of the Reference Period the Borrower or any Restricted Subsidiary (by merger or otherwise) shall have made an Investment in any Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary) or an acquisition of assets which constitutes all or substantially all of an operating unit of a business, EBITDA for the Reference Period shall be calculated after giving pro forma effect thereto (including the Incurrence of any Indebtedness) as if such Investment or acquisition had occurred on the first day of the Reference Period; and

(5) if since the beginning of the Reference Period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Borrower or any Restricted Subsidiary since the beginning of such Reference Period shall have made any Asset Disposition, any Investment or acquisition of assets that would have required an adjustment pursuant to clause (3) or (4) above if made by the Borrower or a Restricted Subsidiary during the Reference Period, EBITDA for the Reference Period shall be calculated after giving pro forma effect thereto as if such Asset Disposition, Investment or acquisition had occurred on the first day of the Reference Period.

For purposes of this definition, whenever pro forma effect is to be given to an acquisition of assets, the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred in connection therewith, the pro forma calculations shall be determined in good faith by a responsible Financial Officer of the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term in excess of 12 months). If any Indebtedness is Incurred under a revolving credit facility and is being given pro forma effect, the interest on such Indebtedness shall be calculated based on the average daily balance of such Indebtedness for the four fiscal quarters subject to the pro forma calculation to the extent such Indebtedness was Incurred solely for working capital purposes.

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

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

(A) subject to the exclusion contained in clause (4) below, the Borrower’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Borrower or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution paid to a Restricted Subsidiary, to the limitations contained in clause (3) below); and

(B) the Borrower’s equity in a net loss of any such Person for such period shall be included in determining such Consolidated Net Income to the extent that such loss has been funded with cash by the Borrower or any Restricted Subsidiary;

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

(3) any net income of any Restricted Subsidiary if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the date of determination, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Borrower, except that:

(A) subject to the exclusion contained in clause (4) below, the Borrower’s equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Restricted Subsidiary during such period to the Borrower or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution paid to another Restricted Subsidiary, to the limitation contained in this clause); and

(B) the Borrower’s equity in a net loss of any such Restricted Subsidiary for such period shall be included in determining such Consolidated Net Income;

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

(5) extraordinary gains or losses;

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

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

in each case, for such period. Notwithstanding the foregoing, for the purpose of Section 6.02 only, there shall be excluded from Consolidated Net Income any repurchases, repayments or redemptions of Investments, proceeds realized on the sale of Investments or return of capital to the Borrower or a Restricted Subsidiary to the extent such repurchases, repayments, redemptions, proceeds or returns are included in the amount of Restricted Payments permitted under such Section pursuant to Section 6.02(a)(3)(D).

“ Credit Agreement ” means the Credit Agreement dated as of November 17, 2003, by and among the Borrower, Fleet National Bank, as Administrative Agent, and the lenders party thereto, together with the related documents thereto (including the revolving loans thereunder, any guarantees and security documents), as amended, extended, renewed, restated, supplemented or otherwise modified (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any agreement (and related document) governing Indebtedness incurred to Refinance, in whole or in part, the borrowings and commitments then outstanding or permitted to be outstanding under such Credit Agreement or a successor Credit Agreement, whether by the same or any other lender or group of lenders.

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

“ Default ” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

“ Disclosed Matters ” means the actions, suits, proceedings and the environmental and other matters disclosed in Schedule 3.06.

“ Disqualified Stock ” means, with respect to any Person, any Capital Stock which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder) or upon the happening of any event:

(1) matures or is mandatorily redeemable (other than redeemable only for Capital Stock of such Person which is not itself Disqualified Stock) pursuant to a sinking fund obligation or otherwise;

(2) is convertible or exchangeable at the option of the holder for Indebtedness or Disqualified Stock; or

(3) must be purchased in whole or in part;

in each case on or prior to the first anniversary of the Final Maturity Date; provided , however , that any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such Person to purchase or redeem such Capital Stock upon the occurrence of an “asset sale” or “change of control” occurring prior to the first anniversary of the Final Maturity Date shall not constitute Disqualified Stock if (A) the “asset sale” or “change of control” provisions applicable to such Capital Stock are not more favorable to the holders of such Capital Stock than the corresponding terms applicable to the Loans following the Initial Maturity Date and (B) any such requirement only becomes operative after compliance with such terms applicable to the Loans, including the prepayment of any Loans pursuant thereto.

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

“ dollars ” or “ $ ” refers to lawful money of the United States of America.

“ EBITDA ” for any period means the sum of Consolidated Net Income, plus the following, without duplication, to the extent deducted in calculating such Consolidated Net Income:

(1) all income tax expense of the Borrower and its consolidated Restricted Subsidiaries;

(2) Consolidated Interest Expense;

(3) depreciation and amortization expense of the Borrower and its consolidated Restricted Subsidiaries (excluding amortization expense attributable to a prepaid item that was paid in cash in a prior period);

(4) all other non-cash charges and non-cash expenses of the Borrower and its consolidated Restricted Subsidiaries (excluding any such non-cash charge or expense to the extent that it represents an accrual of or reserve for cash expenditures in any future period) less all non-cash items of income of the Borrower and its consolidated Restricted Subsidiaries (other than accruals of revenue by the Borrower and its consolidated Restricted Subsidiaries in the ordinary course of business); and

(5) fees and expenses paid in connection with the Transactions (in an aggregate amount for all periods not to exceed $20.0 million);

in each case for such period. Notwithstanding the foregoing, the provision for taxes based on the income or profits of, and the depreciation and amortization and non-cash charges of, a Restricted Subsidiary shall be added to Consolidated Net Income to compute EBITDA only to the extent (and in the same proportion, including by reason of minority interests) that the net income or loss of such Restricted Subsidiary was included in calculating Consolidated Net Income and only if a corresponding amount would be permitted at the date of determination to be dividended to the Borrower by such Restricted Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to such Restricted Subsidiary or its stockholders.

“ Effective Date ” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

“ Eligible Indebtedness ” means any Indebtedness other than:

(8) Indebtedness in the form of, or represented by, bonds or other securities (other than promissory notes or similar evidence of Indebtedness under bank loans or similar financing agreements) or any Guarantee thereof; and

(9) Indebtedness that is, or may be, quoted, listed or purchased and sold on any stock exchange, automated trading system or over-the-counter or other securities market (including the market for securities eligible for resale pursuant to Rule 144A under the Securities Act).

“ Environmental Laws ” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.

“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“ Equity Offering ” has the meaning assigned to such term in Section 5.10(a).

“ Equity Registration Statement ” has the meaning assigned to such term in Section 5.10(a).

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

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

“ ERISA Event ” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

“ Eurocurrency ”, when used in reference to any Loan, refers to whether such Loan is bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

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

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

“ Exchange Note ” means the note (or, if more than one such note is outstanding, all such notes, including any Increasing Rate Notes and Fixed Rate Notes (unless the context otherwise requires)) issued under the Exchange Note Indenture in exchange for one or more Loans, substantially in the form attached as an exhibit to the Exchange Note Indenture.

“ Exchange Note Indenture ” means the Exchange Note Indenture in the form of Exhibit C hereto to be entered into pursuant to Section 5.11 between the Borrower, the Subsidiary Guarantors and the Trustee relating to the issuance of the Exchange Notes.

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.13(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.11(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.11(a).

“ Exercise Fee ” has the meaning assigned to such term in Section 5.16.

“ Extended Loan ” has the meaning assigned thereto in Section 2.04(b).

“ Extended Maturity Date ” has the meaning assigned thereto in Section 2.04(b).

“ Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“ Fee Letter ” means the Fee Letter dated July 26, 2004, among the Borrower, JPMorgan Chase Bank and J.P. Morgan Securities Inc.

“ Final Maturity Date ” means the seventh anniversary of the Closing Date.

“ Financial Officer ” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.

“ Financing Transactions ” means the execution, delivery and performance by each Loan Party of the Bridge Loan Documents to which it is to be a party, the borrowing of the Initial Loans and the use of the proceeds thereof.

“ Fixed Charge Coverage Ratio ” means, for any period, the ratio of (a) EBITDA for such period less (i) Capital Expenditures for such period, (ii) the aggregate amount of Taxes paid in cash by the Borrower and its Restricted Subsidiaries during such period and (iii) the aggregate amount of dividends and other distributions of any sort in respect of Capital Stock of the Borrower and its Subsidiaries (excluding any purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any such Capital Stock, to the extent permitted by this Agreement) paid in cash by the Borrower and its Subsidiaries during such period (excluding any such distributions to the extent paid to the Borrower or a Subsidiary), to (b) Consolidated Interest Expense for such period.

“ Fixed Rate Note ” has the meaning assigned to such term in the Exchange Note Indenture.

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

“ Foreign Subsidiary ” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States of America or any State thereof or the District of Columbia.

“ GAAP ” means generally accepted accounting principles in the United States of America as in effect as of the Closing Date, including those set forth in:

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

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

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

(4) the rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial statements) in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC. All ratios and computations based on GAAP contained in this Agreement shall be computed in conformity with GAAP.

“ Governmental Authority ” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“ Guarantee ” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any Person and any obligation, direct or indirect, contingent or otherwise, of such Person

(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or

(2) entered into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);

provided , however , that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning. The term “Guarantor” shall mean any Person Guaranteeing any obligation.

“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“ Hedging Obligations ” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement or Currency Agreement.

“ Holder ” has the meaning assigned to such term in the Exchange Note Indenture.

“ Incur ” means issue, assume, Guarantee, incur or otherwise become liable for; provided , however , that any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Restricted Subsidiary. The term “Incurrence” when used as a noun shall have a correlative meaning. Solely for purposes of determining compliance with Section 6.01:

(1) amortization of debt discount or the accretion of principal with respect to a non-interest bearing or other discount security;

(2) the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Capital Stock in the form of additional Capital Stock of the same class and with the same terms; and

(3) the obligation to pay a premium in respect of Indebtedness arising in connection with the issuance of a notice of redemption or the making of a mandatory offer to purchase such Indebtedness,

shall not be deemed to be the Incurrence of Indebtedness.

“ Increasing Rate Note ” has the meaning assigned to such term in the Exchange Note Indenture.

“ Indebtedness ” means, with respect to any Person on any date of determination (without duplication):

(1) the principal in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable, including, in each case, any premium on such indebtedness to the extent such premium has become due and payable;

(2) all Capital Lease Obligations of such Person and all Attributable Debt in respect of Sale/Leaseback Transactions entered into by such Person;

(3) all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding any accounts payable or other liability to trade creditors arising in the ordinary course of business);

(4) all obligations of such Person for the reimbursement of any obligor on any letter of credit, bankers’ acceptance or similar credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in clauses (1) through (3) above) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the tenth Business Day following payment on the letter of credit);

(5) the amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock of such Person or, with respect to any Preferred Stock of any Subsidiary of such Person, the principal amount of such Preferred Stock to be determined in accordance with this Agreement (but excluding, in each case, any accrued dividends);

(6) all obligations of the type referred to in clauses (1) through (5) of other Persons and all dividends of other Persons for the payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee;

(7) all obligations of the type referred to in clauses (1) through (6) of other Persons secured by any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the fair market value of such property or assets and the amount of the obligation so secured; and

(8) to the extent not otherwise included in this definition, Hedging Obligations of such Person.

Notwithstanding the foregoing, in connection with the purchase by the Borrower or any Restricted Subsidiary of any business, the term “Indebtedness” will exclude post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided , however , that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter.

The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above; provided , however , that in the case of Indebtedness sold at a discount, the amount of such Indebtedness at any time will be the accreted value thereof at such time.

“ Indemnified Taxes ” means Taxes other than Excluded Taxes.

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

“ Initial Loan ” has the meaning assigned thereto in Section 2.01(a).

“ Initial Maturity Date ” means the one year anniversary of the Closing Date.

“ Interest Payment Date ” means (a) on or prior to the Initial Maturity Date, (i) with respect to any ABR Loan, the last day of each March, June, September and December and (ii) with respect to any Eurocurrency Loan, the last day of the Interest Period applicable to such Loan and, with respect to any Loan, the Initial Maturity Date and (b) following the Initial Maturity Date, with respect to any Loan, the last day of the Interest Period applicable to such Loan.

“ Interest Period ” means (a) prior to the Initial Maturity Date, the period commencing on the Closing Date and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is one month thereafter, and each successive one-month period commencing on the last day of the preceding interest period and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is one month thereafter, and (b) following the Initial Maturity Date, the period commencing on the Initial Maturity Date or the last day of the immediately preceding Interest Period and ending on the earliest of (i) the next succeeding March 1 or September 1 and (ii) the Final Maturity Date; provided , however , that if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of clause (a) above, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.

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

“ Investment ” in any Person means any direct or indirect advance, loan (other than advances to customers in the ordinary course of business that are recorded as accounts receivable on the balance sheet of the lender) or other extensions of credit (including by way of Guarantee or similar arrangement) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by such Person. In furtherance and not in limitation of the foregoing, “Investment” shall include any transfer of lease receivables or related assets pursuant to the Bank of Tokyo Securitization; provided that , for purposes of the definition of “Permitted Investments”, the amount of such Investments made pursuant to the Bank of Tokyo Securitization at any time outstanding shall be reduced by the amount of cash actually received by the Borrower or its Restricted Subsidiaries pursuant to the Bank of Tokyo Securitization following the Closing Date, as and when such cash is received. If the Borrower or any Restricted Subsidiary issues, sells or otherwise disposes of any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any Investment by the Borrower or any Restricted Subsidiary in such Person remaining after giving effect thereto will be deemed to be a new Investment at such time. The acquisition by the Borrower or any Restricted Subsidiary of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Borrower or such Restricted Subsidiary in such third Person at such time. Except as otherwise provided for herein, the amount of an Investment shall be its fair market value at the time the Investment is made and without giving effect to subsequent changes in value.

For purposes of the definition of “Unrestricted Subsidiary”, the definition of “Restricted Payment” and Section 6.02:

(1) “Investment” shall include the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the fair market value of the net assets of any Subsidiary of the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary equal to an amount (if positive) equal to (A) the Borrower’s “Investment” in such Subsidiary immediately prior to the time of such redesignation less (B) the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and

(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Board of Directors.

“ Investment Banks ” has the meaning set forth in Section 5.16.

“ Lenders ” means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

“ LIBO Rate ” means, with respect to any Eurocurrency Loan for any Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is not available at such time for any reason, then the “ LIBO Rate ” with respect to such Eurocurrency Loan for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

“ Lien ” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).

“ Loan Commitment ” means, with respect to each Lender, the commitment, if any, of such Lender to make an Initial Loan hereunder on the Closing Date, expressed as an amount representing the maximum principal amount of the Loan to be made by such Lender hereunder, as such commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Loan Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Loan Commitment, as applicable. The initial aggregate amount of the Lenders’ Loan Commitments is $250,000,000.

“ Loan Parties ” means the Borrower and the Subsidiary Guarantors (and each individually, a “ Loan Party ”).

“ Loans ” means the loans made by the Lenders to the Borrower pursuant to this Agreement, including the Initial Loans and Extended Loans.

“ Long-Term Indebtedness ” means any Indebtedness that, in accordance with GAAP, constitutes (or, when incurred, constituted) a long-term liability.

“ Material Adverse Effect ” means a material adverse effect on (a) the business, assets, condition (financial or otherwise), results of operations or liabilities (including contingent liabilities) of the Borrower or the Target Company or their respective Subsidiaries, taken as a whole or (b) the ability of any Loan Party to perform any of its obligations under any Bridge Loan Document.

“ Material Indebtedness ” means Indebtedness (other than the Loans) of any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $10.0 million. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in respect of any Hedging Obligations at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Hedging Obligations were terminated at such time.

“ Maturity Date ” means the Initial Maturity Date, any Extended Maturity Date or the Final Maturity Date, as the context requires.

“ Merger Agreement ” means the Agreement and Plan of Merger among the Borrower, Marvin Acquisition Corp., a Delaware corporation and newly formed wholly owned subsidiary of the Borrower, and the Target Company, relating to the Acquisition, including the schedules and other exhibits and annexes thereto.

“ Merger Consideration ” means the $230,000,000 in cash consideration paid in respect of the Acquisition.

“ Monthly Period ” means each one-month period in the period commencing November 1, 2004 and ending on the Initial Maturity Date (treating any period of less than one month commencing at the end of the last full one-month period ending prior to the Initial Maturity Date and ending on the Initial Maturity Date as a one-month period), and each one-month period in the period commencing on the Initial Maturity Date and ending on the Final Maturity Date.

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

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

“ Net Available Cash ” from an Asset Disposition means cash payments received therefrom (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and proceeds from the sale or other disposition of any securities received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to such properties or assets or received in any other non-cash form), in each case net of (without duplication):

(1) all legal, accounting, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local Taxes required to be accrued as a liability under GAAP, as a consequence of such Asset Disposition;

(2) all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon or other security agreement of any kind with respect to such assets, or which must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such Asset Disposition;

(3) all distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Disposition;

(4) the deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property or other assets disposed in such Asset Disposition and retained by the Borrower or any Restricted Subsidiary after such Asset Disposition; and

(5) any portion of the purchase price from an Asset Disposition placed in escrow, whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities in respect of such Asset Disposition or otherwise in connection with that Asset Disposition; provided , however , that upon the termination of such escrow, Net Available Cash will be increased by any portion of funds in the escrow that are released to the Borrower or any Restricted Subsidiary.

“ Net Cash Proceeds ”, with respect to any issuance or sale of Capital Stock or Indebtedness, means the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result thereof.

“ Notice of Extension or Exchange ” means a notice substantially in the form of Exhibit D hereto with respect to the extension or exchange of the Loans.

“ Obligations ” means, with respect to any Indebtedness, all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements, and other amounts payable pursuant to the documentation governing such Indebtedness.

“ Officers’ Certificate ” means a certificate signed by two of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer or the Secretary of the Borrower.

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

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

“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

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

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

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

(3) cash and Temporary Cash Investments;

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

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

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

(7) stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Borrower or any Restricted Subsidiary or in satisfaction of litigation, arbitration or other disputes;

(8) any Person to the extent such Investment represents the non-cash portion of the consideration received for (a) an Asset Disposition as permitted pursuant to Section 6.04 or (b) a disposition of assets not constituting an Asset Disposition, in each case other than any Investment arising pursuant to the Bank of Tokyo Securitization;

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

(10) any Person to the extent such Investments consist of prepaid expenses, negotiable instruments held for collection and lease, utility and workers’ compensation, performance and other similar deposits made in the ordinary course of business by the Borrower or any Restricted Subsidiary;

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

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

(13) any Person to the extent received in compromise of obligations of trade creditors or customers in the ordinary course of business;

(14) Persons to the extent such Investments, when taken together with all other Investments made pursuant to this clause (14) and outstanding on the date such Investment is made, do not exceed $15.0 million; and

(15) an Unrestricted Subsidiary pursuant to the Bank of Tokyo Securitization, to the extent such Investments, when taken together with all other Investments made pursuant to the Bank of Tokyo Securitization (except to the extent made pursuant to clause (12) or (14) above or Section 6.02(a)) and outstanding on the date such Investment is made, do not exceed $15.0 million.

“ Permitted Liens ” means, with respect to any Person,

(1) pledges or deposits by such Person under workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case Incurred in the ordinary course of business;

(2) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’ Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review and Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided , however , that (A) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Borrower in excess of those set forth by regulations promulgated by the Board and (B) such deposit account is not intended by the Borrower or any Restricted Subsidiary to provide collateral to the depository institution;

(3) Liens for property taxes not yet subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;

(4) Liens in favor of issuers of surety bonds or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business; provided , however , that such letters of credit do not constitute Indebtedness;

(5) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not Incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(6) Liens securing Indebtedness Incurred to finance the construction, purchase or lease of, or repairs, improvements or additions to, property, plant or equipment of such Person; provided , however , that the Lien may not extend to any other property owned by such Person or any of its Restricted Subsidiaries at the time the Lien is Incurred (other than assets and property affixed or appurtenant thereto), and the Indebtedness (other than any interest thereon) secured by the Lien may not be Incurred more than 180 days after the later of the acquisition, completion of construction, repair, improvement, addition or commencement of full operation of the property subject to the Lien;

(7) Liens to secure Indebtedness Incurred under Section 6.01(b)(1) and Section 6.01(b)(13) (to the extent Incurred pursuant to the Credit Agreement);

(8) Liens existing on the Closing Date;

(9) Liens on property or shares of Capital Stock of another Person at the time such other Person becomes a Subsidiary of such Person; provided , however , that the Liens may not extend to any other property owned by such Person or any of its Restricted Subsidiaries (other than assets and property affixed or appurtenant thereto);

(10) Liens on property at the time such Person or any of its Subsidiaries acquires the property, including any acquisition by means of a merger or consolidation with or into such Person or a Subsidiary of such Person; provided , however , that the Liens may not extend to any other property owned by such Person or any of its Restricted Subsidiaries (other than assets and property affixed or appurtenant thereto);

(11) Liens securing Indebtedness or other obligations of a Subsidiary of such Person owing to such Person or a Restricted Subsidiary of such Person;

(12) Liens arising as a result of the filing of UCC financing statements with respect to the leased equipment underlying the leases and related receivables transferred pursuant to the terms of the Bank of Tokyo Securitization;

(13) Liens securing Hedging Obligations so long as such Hedging Obligations are permitted to be Incurred under this Agreement; and

(14) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clause (6), (8), (9) or (10); provided , however , that (A) such new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to such property or proceeds or distributions thereof) and (B) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clause (6), (8), (9) or (10) at the time the original Lien became a Permitted Lien and (ii) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement.

Notwithstanding the foregoing, “Permitted Liens” will not include any Lien described in clause (6), (9) or (10) above to the extent such Lien applies to any Additional Assets acquired directly or indirectly from Net Available Cash following the Initial Maturity Date pursuant to Section 4.06(a)(3)(A) of the Exchange Note Indenture as set forth on Exhibit C hereto (without giving effect to any amendment thereto or waiver thereof). For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.

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

“ Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“ Preferred Stock ”, as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.

“ Prime Rate ” means the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

“ Purchase Money Indebtedness ” means Indebtedness (including Capital Lease Obligations) (1) consisting of the deferred purchase price of property, conditional sale obligations, obligations under any title retention agreement, other purchase money obligations and obligations in respect of industrial revenue bonds or similar Indebtedness, in each case where the maturity of such Indebtedness does not exceed the anticipated useful life of the asset being financed, and (2) Incurred to finance the acquisition by the Borrower or a Restricted Subsidiary of such asset, including additions and improvements, in the ordinary course of business; provided , however , that any Lien arising in connection with any such Indebtedness shall be limited to the specific asset being financed or, in the case of real property or fixtures, including additions and improvements, the real property on which such asset is attached; provided further , however , that such Indebtedness is Incurred within 180 days after such acquisition of such assets.

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

“ Refinancing Indebtedness ” means Indebtedness that Refinances any Indebtedness of the Borrower or any Restricted Subsidiary existing on the Closing Date or Incurred in compliance with this Agreement, including Indebtedness that Refinances Refinancing Indebtedness; provided , however , that:

(1) such Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being Refinanced;

(2) such Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the Indebtedness being Refinanced;

(3) such Refinancing Indebtedness has an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) that is equal to or less than the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) then outstanding (plus fees and expenses, including any premium and defeasance costs) under the Indebtedness being Refinanced; and

(4) if the Indebtedness being Refinanced is subordinated in right of payment to the Loans, such Refinancing Indebtedness is subordinated in right of payment to the Loans at least to the same extent as the Indebtedness being Refinanced;

provided further , however , that Refinancing Indebtedness shall not include Indebtedness of a Subsidiary (other than any Subsidiary Guarantor) that Refinances Indebtedness of the Borrower.

“ Register ” has the meaning set forth in Section 9.04.

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

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

“ Required Lenders ” means, at any time, Lenders having Loans representing more than 50% of the sum of the total outstanding Loans at such time.

“ Restricted Payment ” with respect to any Person means

(1) the declaration or payment of any dividends or any other distributions of any sort in respect of its Capital Stock (including any payment in connection with any merger or consolidation involving such Person) or similar payment to the direct or indirect holders of its Capital Stock (other than (A) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock), (B) dividends or distributions payable solely to the Borrower or a Restricted Subsidiary and (C) pro rata dividends or other distributions made by a Subsidiary that is not a Wholly Owned Subsidiary to minority stockholders (or owners of an equivalent interest in the case of a Subsidiary that is an entity other than a corporation));

(2) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Capital Stock of the Borrower held by any Person (other than by a Restricted Subsidiary) or of any Capital Stock of a Restricted Subsidiary held by any Affiliate of the Borrower (other than by a Restricted Subsidiary), including in connection with any merger or consolidation and including the exercise of any option to exchange any Capital Stock (other than into Capital Stock of the Borrower that is not Disqualified Stock);

(3) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment of any Subordinated Obligations of the Borrower or any Subsidiary Guarantor (other than (A) from the Borrower or a Restricted Subsidiary or (B) the purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement); or

(4) the making of any Investment (other than a Permitted Investment) in any Person.

“ Restricted Subsidiary ” means any Subsidiary of the Borrower that is not an Unrestricted Subsidiary.

“ S&P ” means Standard & Poor’s.

“ SAILs Debt ” means the Shared Appreciation Income Linked Securities exchangeable debt of the Borrower, the outstanding amount of which at any time shall be the amount reflected on the consolidated balance sheet of the Borrower dated as of the date of determination and prepared in accordance with GAAP.

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

“ SEC ” means the U.S. Securities and Exchange Commission.

“ Securities ” has the meaning assigned to such term in Section 5.16.

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

“ Securities Demand ” has the meaning assigned to such term in Section 5.16.

“ Security Document ” means (a) any document evidencing or creating any Lien over an asset of a person to secure any obligation of the Borrower or any Subsidiary Guarantor to the Administrative Agent and the Lenders under the Bridge Loan Documents and (b) such other documents as the Administrative Agent and the Borrower agree shall be a Security Document.

“ Senior Indebtedness ” means with respect to any Person:

(1) Indebtedness of such Person, whether outstanding on the Closing Date or thereafter Incurred; and

(2) all other Obligations of such Person (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to such Person whether or not post-filing interest is allowed in such proceeding) in respect of Indebtedness described in clause (1) above,

unless, in the case of clauses (1) and (2), in the instrument creating or evidencing the same or pursuant to which the same is outstanding it is provided that such Indebtedness or other Obligations are subordinate in right of payment to the Loans or the Subsidiary Guaranty of such Person, as the case may be; provided , however , that Senior Indebtedness of such Person shall not include:

(A) any obligation of such Person to the Borrower or any Subsidiary;

(B) any liability for Federal, state, local or other taxes owed or owing by such Person;

(C) any accounts payable or other liability to trade creditors arising in the ordinary course of business;

(D) any Indebtedness or other Obligation of such Person which is subordinate or junior in any respect to any other Indebtedness or other Obligation of such Person; or

(E) that portion of any Indebtedness which at the time of Incurrence is Incurred in violation of this Agreement.

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

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

“ Statutory Reserve Rate ” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent or any Lender is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

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

“ Subsidiary ” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Voting Stock is at the time owned or controlled, directly or indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of such Person or (3) one or more Subsidiaries of such Person.

“ Subsidiary Guarantor ” means each Subsidiary of the Borrower that is or is required to be a Guarantor of the Credit Agreement (all of which Subsidiaries are identified on Schedule 3.12 hereto) and each other Subsidiary of the Borrower that Guarantees the Loans pursuant to the terms of this Agreement.

“ Subsidiary Guaranty ” means a Guarantee by a Subsidiary Guarantor of the Borrower’s obligations with respect to the Bridge Loan Documents (other than the Exchange Notes and the Exchange Note Indenture).

“ Target Company ” means Matrics, Inc., a Delaware Corporation.

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

“ Temporary Cash Investments ” means any of the following:

(1) any investment in direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States of America or any agency thereof;

(2) investments in demand and time deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States of America, any State thereof or any foreign country recognized by the United States of America, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $50,000,000 (or the foreign currency equivalent thereof) and has outstanding debt which is rated “A” (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) or any money-market fund sponsored by a registered broker dealer or mutual fund distributor;

(3) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (1) above entered into with a bank meeting the qualifications described in clause (2) above;

(4) investments in commercial paper, maturing not more than 90 days after the date of acquisition, issued by a corporation (other than an Affiliate of the Borrower) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is made of “P-1” (or higher) according to Moody’s Investors Service, Inc. or “A-1” (or higher) according to Standard & Poor’s Ratings Group;

(5) investments in securities with maturities of six months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by Standard & Poor’s Ratings Group or “A” by Moody’s Investors Service, Inc.; and

(6) investments in money market funds that invest substantially all their assets in securities of the types described in clauses (1) through (5) above.

“ Total Debt ” means, as of any date, the Indebtedness of the Borrower and its Subsidiaries outstanding on such date, to the extent reflected on the consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP, excluding the principal amount outstanding on such date, to the extent reflected on such balance sheet, of (i) the SAILs Debt, (ii) Hedging Obligations and (iii) other limited Indebtedness not to exceed $3,000,000 in the aggregate.

“ Transactions ” means the Acquisition and the Financing Transactions.

“ Trustee ” has the meaning assigned to such term in Section 5.11(a).

“ Type ”, when used in reference to any Loan, refers to whether the rate of interest on such Loan is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

“ Unrestricted Subsidiary ” means:

(1) any Subsidiary of the Borrower that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors in the manner provided below;

(2) any Subsidiary of an Unrestricted Subsidiary; and

(3) as of the Closing Date and until properly redesignated a Restricted Subsidiary pursuant hereto, Symbolease Funding LLC.

The Board of Directors may designate any Subsidiary of the Borrower (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any property of, the Borrower or any other Subsidiary of the Borrower that is not a Subsidiary of the Subsidiary to be so designated; provided , however , that (i) either (A) the Subsidiary to be so designated has total assets of $1,000 or less or (B) if such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 6.02 and (ii) no Subsidiary of the Borrower in existence on the Closing Date (other than Symbolease Funding LLC) may be designated an Unrestricted Subsidiary prior to the Initial Maturity Date. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided , however , that immediately after giving effect to such designation (A) the Consolidated Leverage Ratio would be less than 3.0 to 1.0 and (B) no Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Administrative Agent by promptly filing with the Administrative Agent a copy of the resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing provisions.

“ U.S. Government Obligations ” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable at the issuer’s option.

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

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

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

SECTION 1.02. Classification of Loans. For purposes of this Agreement, Loans may be classified and referred to by Type ( e.g. , a “Eurocurrency Loan”).

SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations. (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP.

(b) All pro forma computations required to be made hereunder giving effect to any acquisition, investment, sale, disposition, merger or similar event shall reflect on a pro forma basis such event and, to the extent applicable, the historical earnings and cash flows associated with the assets acquired or disposed of and any related incurrence or reduction of Indebtedness, but shall not take into account any projected synergies or similar benefits expected to be realized as a result of such event.

SECTION 1.05. Effectuation of Transfers. Each of the representations and warranties of the Borrower contained in this Agreement (and all corresponding definitions) are made after giving effect to the Transactions, unless the context otherwise requires.

ARTICLE II

The Loans

SECTION 2.01. Loans . (a) Subject to the terms and conditions hereof, each Lender severally agrees to make a loan (individually, an “ Initial Loan ” and collectively, the “ Initial Loans ”) to the Borrower on the Closing Date, in an aggregate principal amount equal to such Lender’s Loan Commitment.

(b) The Loan Commitments shall terminate on the earliest of (i) the consummation of the Acquisition without any borrowing under this Agreement, (ii) the termination or lapse of the Merger Agreement, (iii) any date on which the Borrower provides notice to the Lenders that it does not intend to proceed with the Acquisition, and (iv) 5:00 p.m., New York City time, on December 31, 2004, if the Initial Loans are not made on or before such date.

(c) Unless the Administrative Agent shall have received notice from a Lender prior to the Closing Date that such Lender will not make an amount equal to its Loan Commitment available to the Administrative Agent, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent in accordance with Section 2.03, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent at (i) in the case of the Borrower, the interest rate applicable at the time to the Initial Loans hereunder and (ii) in the case of such Lender, a rate determined by the Administrative Agent to represent its cost of overnight or short-term funds (which determination shall be conclusive absent manifest error).

(d) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Loan Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required. Each Lender at its option may make any Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

SECTION 2.02. [Intentionally Omitted]

SECTION 2.03. Procedure for Borrowing and Extension . (a) The Borrower shall deliver by hand or by telecopy to the Administrative Agent a notice (the “ Borrowing Request ”), which notice must be received by the Administrative Agent not later than 11:00 a.m., New York City time, three Business Days before the Closing Date. The Borrowing Request shall be duly completed, irrevocable, signed by or on behalf of the Borrower and shall specify the number and location of the account to which funds are to be disbursed, the aggregate amount of the Initial Loans to be borrowed and the date of borrowing. Upon receipt of such notice the Administrative Agent shall promptly notify each Lender. Not later than 12:00 noon, New York City time, on the Closing Date, each Lender shall make available by wire transfer of immediately available funds to such account in New York City as the Administrative Agent may designate an amount equal to such Lender’s Loan Commitment. Loan proceeds received by the Administrative Agent hereunder shall promptly be made available to the Borrower by the Administrative Agent’s crediting the account of the Borrower maintained with the Administrative Agent in New York City and designated by the Borrower in the Borrowing Request, with the aggregate amount actually received by the Administrative Agent from the Lenders and in like funds as received by the Administrative Agent.

(b) If the Borrower will not repay an Initial Loan in full on or prior to the Initial Maturity Date or any Extended Maturity Date applicable to an Extended Loan, then the Borrower shall deliver to the Administrative Agent an Officers’ Certificate no later than 10:00 a.m. (New York City time), at least 10 Business Days prior to the Initial Maturity Date or such Extended Maturity Date, requesting an extension of the Maturity Date of the Initial Loans or Extended Loan, as the case may be. Upon receipt of such Officers’ Certificate the Administrative Agent shall promptly notify each Lender.

SECTION 2.04. Maturity; Exchange Notes; Extension of Maturity . (a) Subject to paragraphs (b), (c), (d) and (e) below, the Loans will mature on the Initial Maturity Date.

(b) Subject to the terms and conditions hereof, each Lender severally agrees, (i) if the Initial Loans have not been repaid (or exchanged for Exchange Notes) on the Initial Maturity Date, to extend the Maturity Date of its Initial Loan until any date (the “ Extended Maturity Date ”) on or prior to the Final Maturity Date selected by such Lender (any Initial Loan so extended, an “ Extended Loan ”) and (ii) if an Extended Loan made by such Lender has not been repaid (or exchanged for Exchange Notes) on or prior to its Extended Maturity Date, to extend further the Maturity Date of such Extended Loan until any Extended Maturity Date on or prior to the Final Maturity Date selected by such Lender.

(c) If an Initial Loan has not been repaid in full on or prior to the Initial Maturity Date, then any affected Lender may elect to receive Exchange Notes in exchange for the Loan of such Lender; provided , however , that such Lender may not elect to exchange its outstanding Loan for Exchange Notes in an aggregate principal amount of less than $5,000,000 unless (i) such Lender intends at the time of such exchange of such Loan promptly to sell the Exchange Notes received in such exchange to a third party or (ii) following such exchange such Lender will not hold any Loan. The Lender may exercise such option to receive Exchange Notes by delivering to the Borrower and the Administrative Agent at least five Business Days (or ten Business Days, in the case of any exchange other than on a Maturity Date) prior to the relevant date of exchange a Notice of Extension or Exchange specifying (i) the principal amount of the Loan to be exchanged for Exchange Notes and (ii) if all or any portion of the Exchange Notes are to be sold by such Lender to a third party, the principal amount of such Exchange Notes to be so sold and the principal amount, if any, to be represented by a Fixed Rate Note. The principal amount of the Exchange Notes will equal the entire aggregate principal amount of the Loan for which they are exchanged. If a Default shall have occurred and be continuing on the date of such exchange, any notices given or cure periods commenced while the Loan was outstanding shall be deemed given or commenced (as of the actual dates thereof) for all purposes with respect to the Exchange Note (with the same effect as if the Exchange Note had been outstanding as of the actual dates thereof).

(d) Upon receipt of the notice from the Administrative Agent provided for in Section 2.03(b) that an Initial Loan will not be repaid in full on or prior to the Initial Maturity Date or an Extended Loan will not be repaid in full on or prior to the Extended Maturity Date, each affected Lender (unless it has exercised its option to receive Exchange Notes in exchange for the entire aggregate principal amount of its Loan) at least five Business Days prior to a Maturity Date, shall deliver to the Borrower and the Administrative Agent a Notice of Extension or Exchange specifying (i) the principal amount of such Loan to be extended, which shall be the aggregate principal amount of the Loan of such Lender (unless a portion thereof is being exchanged for Exchange Notes in accordance with Section 2.04(c)) and (ii) the Extended Maturity Date selected by such Lender, which shall be an Interest Payment Date, but in any event shall not be later than the Final Maturity Date.

(e) If the Lender has not delivered a Notice of Extension or Exchange at least five Business Days prior to the relevant Maturity Date and the Loan is not repaid in full on or prior to such Maturity Date, the Loan shall automatically be extended until the last day of the next Interest Period, but in no event to a date later than the Final Maturity Date.

SECTION 2.05. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Loan in accordance with the terms hereof. The Borrower hereby further agrees to pay interest on the unpaid principal amount of each Loan from time to time outstanding from the date hereof until payment in full thereof at the rates per annum, and on the dates, set forth in Section 2.07.

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

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

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

(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in the form of Exhibit E. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

SECTION 2.06. Optional and Mandatory Prepayments. (a) The Borrower shall have the right at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty; provided that if a Eurocurrency Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.10; provided , further , that on or after the Initial Maturity Date, any optional prepayment pursuant to this clause (a) may be applied pro rata among the Loans and any Exchange Notes that are then callable.

(b) If (i) the Borrower or any of its Subsidiaries shall Incur any Indebtedness (other than Indebtedness Incurred under Section 6.01(b)(1), (2), (3), (4), (5), (7), (8), (9), (10), (11), (12) or (13), but including any debt Securities issued pursuant to a Securities Demand) or (ii) the Borrower or any of its Subsidiaries shall issue any Capital Stock (other than (A) to the Borrower or a Restricted Subsidiary, (B) any issuance of Capital Stock in settlement of outstanding litigation and (C) to employees pursuant to a compensation plan in effect on the Closing Date), then an amount equal to 100% of the Net Cash Proceeds thereof shall be applied promptly (but in no event later than five Business Days) after the receipt thereof toward the prepayment of the Loans; provided , however , that, after the Initial Maturity Date, in the event that any callable Exchange Notes are then outstanding, such amount may be applied pro rata to the redemption of such Exchange Notes in accordance with the terms of the Exchange Note Indenture.

(c) (i) If, prior to the Initial Maturity Date, the Borrower or any of its Restricted Subsidiaries shall consummate any Asset Disposition, then an amount equal to 100% of the Net Available Cash therefrom shall be applied promptly (but in no event later than five Business Days) after the receipt thereof toward the prepayment of the Loans; provided , however , that a pro rata portion of such Net Available Cash may be applied toward the repayment of amounts outstanding under the Credit Agreement to the extent required by the terms thereof as they existed as of the Closing Date.

(ii) If, following the Initial Maturity Date, the Borrower is required pursuant to the Exchange Note Indenture to redeem Increasing Rate Notes and/or offer to purchase Fixed Rate Notes from the Net Available Cash from any Asset Disposition by the Borrower or any Restricted Subsidiary, the Borrower shall apply a portion of such Net Available Cash toward the prepayment of Loans such that the Loans are prepaid on a pro rata basis with (a) the Increasing Rate Notes so redeemed, (b) the amount of such offer to purchase (it being acknowledged that such offer to purchase may be made ratably to holders of Fixed Rate Notes and holders of other Senior Indebtedness, pursuant to Section 4.06 of the Exchange Note Indenture) and (c) the repayment of amounts outstanding under the Credit Agreement to the extent required by the terms thereof as they existed on the Closing Date. Amounts of Net Available Cash offered to and rejected by any holder of a Fixed Rate Note (or other Senior Indebtedness to which such offer is made in accordance with the Exchange Note Indenture) shall be ratably applied to (1) prepay the Loans, (2) redeem any Increasing Rate Notes, (3) purchase any Fixed Rate Notes (and such other Senior Indebtedness) with respect to which the offer to purchase was made and accepted and (4) to the extent required by the terms thereof as they existed as on the Closing Date, repay amounts outstanding under the Credit Agreement. The distribution of the relevant prepayment amount hereunder to the Lenders by the Administrative Agent shall be made promptly (but in no event later than five days) after the expiration of any offer to purchase if Fixed Rate Notes are outstanding. If no such Fixed Rate Notes are outstanding, the distribution of the relevant prepayment amount hereunder to the Lenders by the Administrative Agent shall be made as soon as practicable (but in no event later than five days) after receipt thereof.

(d) If the Borrower shall optionally redeem any Exchange Notes pursuant to the terms of the Exchange Note Indenture, then the Borrower shall prepay Loans on a pro rata basis with the Exchange Notes so redeemed.

(e) The Borrower shall notify the Administrative Agent by telephone (confirmed by telecopy) of any prepayment hereunder not later than 11:00 a.m., New York City time, three Business Days before the date of such prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of the Loans or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment. If such notice is given, the Borrower shall make such prepayment, and the payment amount specified in such notice shall be due and payable, on the date specified therein. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof.

SECTION 2.07. Interest and Fees. (a) (i) Subject to t