SENIOR SECURED POST-PETITION NOTE PURCHASE AGREEMENT

Exhibit 10.1

ANCHOR GLASS CONTAINER CORPORATION
as debtor and debtor-in-possession

$125,000,000

SENIOR SECURED TERM NOTES DUE 2006

SENIOR SECURED POST-PETITION NOTE PURCHASE AGREEMENT

Dated as of September 15, 2005

WELLS FARGO BANK, N.A.
as Administrative Agent and Collateral Agent

TABLE OF CONTENTS

SCHEDULE AND EXHIBITS

ANCHOR GLASS CONTAINER CORPORATION

$125,000,000 Senior Secured Term Notes Due 2006
as of September 15, 2005

TO EACH OF THE PURCHASERS LISTED ON SCHEDULE 1.01(A)

     ANCHOR GLASS CONTAINER CORPORATION, as debtor and-debtor-in-possession, a Delaware corporation (the “ Issuer ”) agrees with each of the purchasers whose names appear on Schedule 1.01(A) (each a “ Purchaser ” and, collectively, the “ Purchasers ”) and Wells Fargo Bank, N.A., as collateral agent for the Purchasers (in such capacity, together with its successors in such capacity, the “ Collateral Agent ”), and Wells Fargo Bank N.A., as administrative agent for the Purchasers (in such capacity, together with its successors in such capacity, the “ Administrative Agent ” and, together with the Collateral Agent, each an “ Agent ” and collectively, the “ Agents ”) as follows:

ARTICLE I

DEFINITIONS; CERTAIN TERMS

          Section 1.01 Definitions . As used in this Agreement, the following terms shall have the respective meanings indicated below, such meanings to be applicable equally to both the singular and plural forms of such terms:

          “ Account Debtor ” means each debtor, customer or obligor in any way obligated on or in connection with any Account Receivable.

          “ Account Receivable ” means, with respect to any Person, any and all rights of such Person to payment for goods sold and/or services rendered, including accounts, general intangibles and any and all such rights evidenced by chattel paper, instruments or documents, whether due or to become due and whether or not earned by performance, and whether now or hereafter acquired or arising in the future, and any proceeds arising therefrom or relating thereto.

          “ Action ” has the meaning specified therefor in Section 12.12.

          “ Administrative Agent ” has the meaning specified therefor in the preamble hereto.

          “ Administrative Agent’s Account ” means an account at a bank designated by the Administrative Agent from time to time as the account into which the Issuer shall make all payments to the Administrative Agent for the benefit of the Agents and the Holders under this Agreement and the other Note Documents.

          “ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (i) vote 10% or more of the Capital Stock having ordinary voting power for the election of directors of such Person or (ii) direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Notwithstanding anything herein to the contrary, in no event shall any Agent be considered an “Affiliate” of the Issuer.

          “ Agent ” has the meaning specified therefor in the preamble hereto.

          “ Agreed Administrative Expense Priorities ” means that administrative expenses with respect to the Issuer and, with respect to sub-clause (ii) of clause “ first ”, any official committee appointed by the Bankruptcy Court, shall have the following order of priority:

      first , (i) amounts payable pursuant to 28 U.S.C. § 1930(a)(6) and (ii) allowed fees and expenses of attorneys, accountants and other professionals retained in the Chapter 11 Case pursuant to Sections 327, 328, 330 and 331 of the Bankruptcy Code, to the extent that the amount entitled to priority under this sub-clause (ii) of this clause first (“ Priority Professional Expenses ”) does not exceed $2,000,000 outstanding in the aggregate at any time (inclusive of any holdbacks required by the Bankruptcy Court) (the “ Professional Expense Cap ”); provided , however , that (A) during the continuance of an Event of Default hereunder or a default by the Issuer in any of its obligations under the Bankruptcy Court Orders, any payments actually made to such professionals during such continuance, under Sections 327, 328, 330 and 331 of the Bankruptcy Code or otherwise, shall reduce the Professional Expense Cap on a dollar-for-dollar basis, and (B) for the avoidance of doubt, so long as no Event of Default or a default by the Issuer in any of its obligations under the Bankruptcy Court Orders shall have occurred and be continuing, the payment of administrative expenses allowed and payable under Sections 327, 328, 330 and 331 of the Bankruptcy Code or otherwise shall not reduce the Professional Expense Cap,

      second , all Obligations in accordance with Section 4.02, and

      third , all other allowed administrative expenses.

          “ Agreement ” means this Senior Secured Post-Petition Note Purchase Agreement, including all amendments, modifications and supplements and any exhibits or schedules to any of the foregoing, and shall refer to the Agreement as the same may be in effect at the time such reference becomes operative.

          “ Authorized Officer ” means, with respect to any Person, the chief executive officer, chief financial officer, president or executive vice president of such Person.

          “ Avoidance Actions ” means all causes of action arising under Sections 542, 544, 545, 547, 548, 549, 550, 551, 553(b) or 724(e) of the Bankruptcy Code and any proceeds therefrom.

          “ Bankruptcy Code ” means Chapter 11 of Title 11 of the United States Code.

          “ Bankruptcy Court ” means the United States Bankruptcy Court for the Middle District of Florida.

          “ Bankruptcy Court Orders ” means the Final Bankruptcy Court Order and the Cash Management Order.

          “ Beneficial Owners ” has the meaning given to such term under the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.

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

          “ Board of Directors ” means, with respect to any Person, the board of directors (or comparable managers) of such Person or any committee thereof duly authorized to act on behalf of the board.

          “ Budget ” means the 13-week cash requirement forecast setting forth the cash receipts and disbursements of the Issuer on a weekly basis, satisfactory in form and substance to the Required Holders, a summary of which is attached as Schedule 1.01(B) hereto, as updated pursuant to Section 8.01(a).

          “ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks in New York City or Minneapolis, Minnesota are authorized or required to close.

          “ Capital Expenditures ” means, with respect to any Person for any period, the sum of (i) the aggregate of all expenditures by such Person and its Subsidiaries during such period that in accordance with GAAP are or should be included in “property, plant and equipment” or in a similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or financed and including all Capitalized Lease Obligations paid or payable during such period, and (ii) to the extent not covered by clause (i) above, the aggregate of all expenditures by such Person and its Subsidiaries during such period to acquire by purchase or otherwise the business or fixed assets of, or the Capital Stock of, any other Person.

          “ Capital Stock ” means (i) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, and (ii) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person.

          “ Capitalized Lease ” means, with respect to any Person, any lease of real or personal property by such Person as lessee which is (i) required under GAAP to be capitalized on the balance sheet of such Person or (ii) a transaction of a type commonly known as a “synthetic lease” (i.e. a lease transaction that is treated as an operating lease for accounting purposes but with respect to which payments of rent are intended to be treated as payments of principal and interest on a loan for Federal income tax purposes).

     “ Capitalized Lease Obligations ” means, with respect to any Person, obligations of such Person and its Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP.

     “ Carve-Out Expenses ” means those amounts, fees, expenses and claims set forth in clause “first” of the definition of the term “Agreed Administrative Expense Priorities”.

     “ Cash and Cash Equivalents ” means all cash and any presently existing or hereafter arising deposit account balances, certificates of deposit or other financial instruments properly classified as cash equivalents under GAAP.

     “ Cash Management Order ” means an order of the Bankruptcy Court with respect to the cash management system of the Issuer, in form and substance reasonably satisfactory to the Required Holders.

     “ Change in Law ” has the meaning specified therefor in Section 5.05(a).

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

     (a) the acquisition, directly or indirectly, by any person or group (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Permitted Holders, of beneficial ownership of more than 25% of the aggregate outstanding voting power of the Capital Stock of the Issuer;

     (b) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of the Issuer (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Issuer was approved by a vote of at least a majority the directors of the Issuer then still in office who were either directors at the beginning of such period, or whose election or nomination for election was previously approved) cease for any reason to constitute a majority of the Board of Directors of the Issuer;

     (c) the Issuer consolidates or amalgamates with or merges into another Person or conveys, transfers or leases all or substantially all of its property and assets to another Person; or

     (d) The title, duties or authority of Mark Burgess, Chief Executive Officer of the Issuer, are diminished or amended in a manner not satisfactory to the Required Holders or he resigns or is terminated by the Issuer without the appointment of a successor acceptable to the Required Holders, the duties and authority of which are acceptable to the Required Holders in their reasonable discretion.

     “ Chapter 11 Case ” means the case commenced by the Issuer under the Bankruptcy Code in the Bankruptcy Court on August 8, 2005.

     “ Collateral ” has the meaning specified therefor in Section 4.01(a).

          “ Collateral Agent ” has the meaning specified therefor in the preamble hereto.

          “ Collection Account ” and “ Collection Accounts ” have the meanings specified therefor in Section 9.01(a).

          “ Collections ” means all cash, checks, notes, instruments and other items of payment (including insurance proceeds, proceeds of cash sales, rental proceeds and tax refunds) of the Issuer.

          “ Concentration Account ” means an account maintained at an institution selected by the Issuer and satisfactory to the Required Holders and the Administrative Agent and under the sole dominion and control of the Administrative Agent.

          “ Contingent Obligation ” means, with respect to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, (i) the direct or indirect guarantee, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (ii) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, (iii) any obligation of such Person, whether or not contingent, (A) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (B) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (C) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (D) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided , however , that the term “Contingent Obligation” shall not include any product warranties extended in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

          “ Default ” means an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

          “ Disposition ” means any transaction, or series of related transactions (including any Sale Transaction), pursuant to which any Person or any of its Subsidiaries sells, assigns, transfers or otherwise disposes of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person, excluding any sales of Inventory in the ordinary course of business on ordinary business terms.

     “ Dollar ,” “ Dollars ” and the symbol “ $ ” each means lawful money of the United States of America.

     “ EBITDAR ” of the Issuer for any period, means the Net Income of the Issuer for such period plus , without duplication and to the extent reflected as a charge in the statement of such Net Income for such period, the sum of (a) income tax expense, (b) Interest Expense, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) any extraordinary, unusual or non-recurring expenses or losses and (f) any other non-cash charges, and minus , to the extent included in the statement of such Net Income for such period, the sum of (a) interest income (except to the extent deducted in determining Interest Expense), (b) any extraordinary, unusual or non-recurring income or gains, (c) any other non-cash income and (d) costs and expenses attributed solely to the Chapter 11 case, such as fees of its professionals and professionals it pays pursuant to orders of the Bankruptcy Court, and costs related to any plant shutdowns.

     “ Effective Date ” has the meaning specified therefor in Section 6.01.

     “ Employee Plan ” means an employee benefit plan (other than a Multiemployer Plan) covered by Title IV of ERISA and maintained (or that was maintained at any time during the six (6) calendar years preceding the date of any borrowing hereunder) for employees of the Issuer or any of its ERISA Affiliates.

     “ Environmental Actions ” means any complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter or other communication from any Person or Governmental Authority involving violations of Environmental Laws or Releases of Hazardous Materials (i) from any assets, properties or businesses owned or operated by the Issuer or any predecessor in interest thereof; (ii) from adjoining properties or businesses; or (iii) onto any facilities which received Hazardous Materials generated by the Issuer or any predecessor in interest thereof.

     “ Environmental Laws ” means the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq .), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq .), the Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq .), the Federal Clean Water Act (33 U.S.C. § 1251 et seq .), the Clean Air Act (42 U.S.C. § 7401 et seq .), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq .) and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq .), as such laws may be amended or otherwise modified from time to time, and any other present or future federal, state, local or foreign statute, ordinance, rule, regulation, order, judgment, decree, permit, license or other binding determination of any Governmental Authority imposing liability or establishing standards of conduct for protection of the environment or other government restrictions relating to the protection of the environment or the Release, deposit or migration of any Hazardous Materials into the environment.

     “ Environmental Liabilities and Costs ” means all liabilities, monetary obligations, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigations and feasibility studies), fines, penalties,

sanctions and interest incurred as a result of any claim or demand by any Governmental Authority or any third party, and which relate to any environmental condition or a Release of Hazardous Materials from or onto (i) any property presently or formerly owned by the Issuer or (ii) any facility which received Hazardous Materials generated by the Issuer.

          “ Environmental Lien ” means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs.

          “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, and regulations thereunder, in each case, as in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.

          “ ERISA Affiliate ” means, with respect to any Person, any trade or business (whether or not incorporated) which is a member of a group of which such Person is a member and which would be deemed to be a “controlled group” within the meaning of Sections 414(b), (c), (m) and (o) of the Internal Revenue Code.

          “ Event of Default ” means any of the events set forth in Section 10.01.

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

          “ Extraordinary Receipts ” means any cash received by the Issuer not in the ordinary course of business (and not consisting of proceeds described in Section 2.04(b)(i) hereof) by way of proceeds of insurance, condemnation awards (and payments in lieu thereof), or other compensation received by the Issuer with respect to any loss of or damage to, or any condemnation or other taking of, any property of the Issuer.

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

          “ Fee Letter ” means the letter dated September 15, 2005 executed by the Issuer related to the fees, expenses and disbursements of the Agents.

          “ Filing Date ” means August 8, 2005, the date on which the Issuer commenced the Chapter 11 Case.

          “ Final Bankruptcy Court Order ” means the final order of the Bankruptcy Court approving this Agreement with respect to the Issuer, substantially in the form of Exhibit E hereto, as the same may be amended, modified or supplemented from time to time with the express written joinder or consent of the Agents (at the written direction of the Required Holders), the Required Holders and the Issuer, which order shall be in full force and effect and not vacated, modified, amended (without the express written joinder or consent of the Agents, at the written

direction of the Required Holders, and the Required Holders), renewed, overturned, subject to a pending appeal, or stayed in any respect, and, in the event such order is the subject of a pending appeal, the performance of any Obligation of the Issuer shall not be stayed during such appeal.

          “ Final Bankruptcy Court Order Entry Date ” means the date on which the Final Bankruptcy Court Order shall have been entered by the Bankruptcy Court.

          “ Final Maturity Date ” means the date which is the earliest of (i) September 30, 2006, (ii) the date of the substantial consummation (as defined in Section 1101(2) of the Bankruptcy Code) of a plan of reorganization in the Chapter 11 Case that has been confirmed by an order of the Bankruptcy Court, (iii) the effective date of a Sale Transaction, and (iv) such earlier date on which the Notes shall become due and payable in accordance with the terms of this Agreement and the other Note Documents.

          “ Financial Statements ” means (i) the balance sheet of the Issuer for the Fiscal Year ended December 31, 2004 and the related statement of operations and cash flows and the statement of shareholders’ equity for the Fiscal Year then ended, and (ii) the unaudited balance sheet of the Issuer as at March 31, 2005 and, depending on availability, the later of July 31 or August 31, 2005 and the related statement of operations and cash flows and the statement of shareholders’ equity for the respective year-to-date periods ended on said dates.

          “ Fiscal Year ” means the fiscal year of the Issuer ending on the 31 ^st of December of each year.

          “ GAAP ” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, provided that for the purpose of Section 8.01 hereof and the definitions used therein, “GAAP” shall mean generally accepted accounting principles in effect on the date hereof and consistent with those used in the preparation of the Financial Statements, provided , further , that if there occurs after the date of this Agreement any change in GAAP that affects in any respect the calculation of any covenant contained in Section 8.01 hereof, the Required Holders and the Issuer shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Holders and the Issuer after such change in GAAP conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, the covenants in Section 8.01 hereof shall be calculated as if no such change in GAAP has occurred.

          “ Governmental Authority ” means any nation or government, any Federal, state, city, town, municipality, county, local or other political subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

          “ Hazardous Material ” means (a) any element, compound or chemical that is defined, listed or otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or hazardous substance, extremely hazardous substance or chemical, hazardous waste, special waste, or solid waste under Environmental Laws; (b) petroleum and its refined products; (c)

polychlorinated biphenyls; (d) any substance exhibiting a hazardous waste characteristic, including, without limitation, corrosivity, ignitability, toxicity or reactivity as well as any radioactive or explosive materials; and (e) any raw materials, building components (including, without limitation, asbestos-containing materials) and manufactured products containing Hazardous Materials.

          “ Hedging Agreement ” means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including, without limitation, any option with respect to any of the foregoing and any combination of the foregoing agreements or arrangements), and any confirmation executed in connection with any such agreement or arrangement.

          “ Holders ” means the Purchasers and each Person that becomes a party hereto pursuant to Section 12.07.

          “ Indebtedness ” means, with respect to any Person, without duplication, (i) all indebtedness of such Person for borrowed money; (ii) all obligations of such Person for the deferred purchase price of property or services (other than trade payables or other accounts payable incurred in the ordinary course of such Person’s business and not outstanding for (A) more than 90 days after the date such payable was created or (B) a longer period if such payable is being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor); (iii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made; (iv) all obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property; (v) all Capitalized Lease Obligations of such Person; (vi) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities; (vii) all obligations and liabilities, calculated on a basis satisfactory to the Required Holders and in accordance with accepted practice, of such Person under Hedging Agreements; (viii) all Contingent Obligations of such Person; (ix) liabilities incurred under Title IV of ERISA with respect to any Plan (other than a Multiemployer Plan) covered by Title IV of ERISA and maintained for employees of such Person or any of its ERISA Affiliates; (x) withdrawal liability incurred under ERISA by such Person or any of its ERISA Affiliates with respect to any Multiemployer Plan; (xi) all other items which, in accordance with GAAP, would be included as liabilities on the liability side of the balance sheet of such Person; and (xii) all obligations referred to in clauses (i) through (xi) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer.

          “ Indemnified Matters ” has the meaning specified therefor in Section 12.15.

          “ Indemnitees ” has the meaning specified therefor in Section 12.15.

          “ Interest Expense ” of the Issuer for any period, means total cash interest expense (including that attributable to Capitalized Lease Obligations) of the Issuer for such period with respect to all outstanding Indebtedness of the Issuer (including, without limitation, all commissions, discounts and other fees and charges owed by the Issuer with respect to letters of credit and bankers’ acceptance financing and net costs of the Issuer under Hedging Agreements to the extent such net costs are allocable to such period in accordance with GAAP).

          “ Interim DIP Notes ” means the post-petition advances made to the Issuer by certain pre-petition creditors of the Issuer in the aggregate principal amount of $15,000,000 and evidenced by certain promissory notes dated on or about August 12, 2005 issued by the Issuer to the order of such creditors.

          “ Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended (or any successor statute thereto) and the regulations thereunder.

          “ Inventory ” means, with respect to any Person, all goods and merchandise of such Person, including, without limitation, all raw materials, work-in-process, packaging, supplies, materials and finished goods of every nature used or usable in connection with the shipping, storing, advertising or sale of such goods and merchandise, whether now owned or hereafter acquired, and all such other property the sale or other disposition of which would give rise to an Account Receivable or cash.

          “ Issuer ” has the meaning specified therefor in the preamble hereto.

          “ Knowledgeable Employees ” has the meaning specified in Rule 3c-5 of the Investment Company Act of 1940, as amended.

          “ Lease ” means any lease of real property to which the Issuer is a party as lessor or lessee.

          “ Lien ” means any mortgage, deed of trust, pledge, lien (statutory or otherwise), security interest, charge or other encumbrance or security or preferential arrangement of any nature, including, without limitation, any conditional sale or title retention arrangement, any Capitalized Lease and any assignment, deposit arrangement or financing lease intended as, or having the effect of, security.

          “ Lockbox Bank ” has the meaning specified therefor in Section 9.01(a).

          “ Lockboxes ” has the meaning specified therefor in Section 9.01(a).

          “ Material Adverse Effect ” means a material adverse effect on (i) the operations, business, assets, properties, condition (financial or otherwise) or prospects of the Issuer, except for the commencement of the Chapter 11 Case and events that would typically result from the commencement and prosecution of the Chapter 11 Case, (ii) the ability of the Issuer to perform any of its obligations under any Note Document to which it is a party, (iii) the legality, validity or enforceability of this Agreement or any other Note Document, (iv) the rights and remedies of any

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Agent or any Holder under any Note Document or (v) the validity, perfection or priority of any Lien in favor of the Collateral Agent for the benefit of the Agents and/or the Holders on any of the Collateral; provided, however, that the increases in the price of natural gas occurring between the Petition Date and September 9, 2005 shall not be considered a Material Adverse Effect.

          “ Material Contract ” means, with respect to any Person, (i) each contract or agreement to which such Person or any of its Subsidiaries is a party involving aggregate consideration payable to or by such Person or such Subsidiary of $5,000,000 or more (other than purchase orders in the ordinary course of the business of such Person or such Subsidiary and other than contracts that by their terms may be terminated by such Person or Subsidiary in the ordinary course of its business upon less than sixty (60) days’ notice without penalty or premium) and (ii) all other contracts or agreements material to the business, operations, condition (financial or otherwise), performance, prospects or properties of such Person or such Subsidiary.

          “ Material Holder ” has the meaning specified in Section 8.01(a)(xx).

          “ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

          “ Multiemployer Plan ” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which the Issuer or any of its ERISA Affiliates has contributed to, or has been obligated to contribute, at any time during the preceding six (6) years.

          “ Net Cash Proceeds ” means, with respect to any Disposition by any Person or any of its Subsidiaries, the amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment of deferred consideration) by or on behalf of such Person or such Subsidiary, in connection therewith after deducting therefrom only (A) the principal amount of any Indebtedness secured by any Lien permitted by Section 8.02(a) on any asset (other than Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection with such Disposition (other than Indebtedness under this Agreement), (B) reasonable expenses related thereto incurred by such Person or such Subsidiary in connection therewith, (C) transfer taxes paid to any taxing authorities by such Person or such Subsidiary in connection therewith, and (D) net income taxes payable in connection with, and during the 12 month period following, any such Disposition (after taking into account any tax credits or deductions and any tax sharing arrangements).

          “ Net Income ” of the Issuer for any period, means the net income (or loss) of the Issuer for such period, determined in accordance with GAAP.

          “ Note ” has the meaning specified therefor in Section 2.01(a).

          “ Note Document ” means this Agreement, the Security Agreement, the Fee Letter, the Notes, the Final Bankruptcy Court Order, the Cash Management Order and any other agreement, instrument, and other document executed and delivered pursuant hereto or thereto or otherwise evidencing or securing any Obligation.

          “ Notice of Issuance ” has the meaning specified therefor in Section 2.02(a).

          “ Notice of Sole Control ” means a notice delivered by the Collateral Agent to a Lockbox Bank at the written direction of the Required Holders for the purpose of restricting any further access by the Issuer to accounts maintained at such bank and directing that all funds be transferred to the Concentration Account or the Administrative Agent’s Account pursuant to ARTICLE IX.

          “ Obligations ” means all present and future indebtedness, obligations, and liabilities of the Issuer to the Agents and the Holders relating to or under the Note Documents, whether or not the right of payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured, unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 10.01. Without limiting the generality of the foregoing, the Obligations of the Issuer under the Note Documents include (a) the obligation to pay principal, interest, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable by the Issuer under the Note Documents, and (b) the obligation of the Issuer to reimburse any amount in respect of any of the foregoing that any Agent or any Holder (in its sole discretion) may elect to pay or advance on behalf of the Issuer. >

          “ Operating Lease Obligations ” means all obligations for the payment of rent for any real or personal property under leases or agreements to lease, other than Capitalized Lease Obligations.

          “ Other Taxes ” has the meaning specified therefor in Section 3.02.

          “ Outstanding ” means, as of the date of determination, all Notes delivered under this Agreement, except:

     (i) Notes theretofore canceled by the Administrative Agent or delivered to the Administrative Agent for cancellation; or

     (ii) Notes, or portions thereof, for whose payment or redemption immediately available funds in the necessary amount have been theretofore deposited with the Administrative Agent (other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own Administrative Agent) for the Holders of such Notes; provided that, if the Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Agreement;

provided , however , that in determining whether the Holders of the requisite principal amount of the outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Issuer or any Affiliate of the Issuer shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Administrative Agent or the Issuer, as the case may be, shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Responsible Officer of the Administrative Agent actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Required Holders the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer or any Affiliate of the Issuer.

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

          “ Permitted Holders ” means the Persons named on Schedule 1.01(C).

          “ Permitted Indebtedness ” means:

          (a) any Indebtedness owing to any Agent or any Holder under this Agreement and the other Note Documents;

          (b) any Indebtedness existing on the Filing Date as described on Schedule 8.02(b); and

          (c) any Indebtedness with respect to Hedging Agreements approved in writing by the Required Holders.

          “ Permitted Investments ” means, in each case, as permitted by Section 345 of the Bankruptcy Code or pursuant to orders entered by the Bankruptcy Court, (i) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within six (6) months from the date of acquisition thereof; (ii) commercial paper, maturing not more than 270 days after the date of issue rated P-1 by Moody’s or A-1 by Standard & Poor’s; (iii) certificates of deposit maturing not more than 270 days after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (iv) repurchase agreements having maturities of not more than ninety (90) days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (iii) above and which are secured by readily marketable direct obligations of the United States Government or any agency thereof; (v) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000; (vi) tax exempt securities rated A or higher by Moody’s or A+ or higher by Standard & Poor’s; and (vii) any investment with respect to Hedging Agreements approved in writing by the Required Holders.

          “ Permitted Liens ” means:

          (a) Liens securing the Obligations;

          (b) Liens for taxes, assessments and governmental charges the payment of which is not required under Section 8.01(b);

          (c) Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens arising (provided they are subordinate to the Collateral Agent’s Liens on Collateral) in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) that are not overdue by more than thirty (30) days or are being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, or as to which payment and enforcement is stayed under the Bankruptcy Code or

pursuant to orders of the Bankruptcy Court, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor;

          (d) Liens existing on the Filing Date, as described on Schedule 8.02(a), but not the extension of coverage thereof to other property or the extension of maturity (other than as a result of the filing of the Chapter 11 Case), refinancing or other modification of the terms thereof or the increase of the Indebtedness secured thereby;

          (e) Liens or interests arising out of Capital Leases of the Issuer as of the Effective Date;

          (f) Liens or interests arising out of additional Capital Leases which may be entered into after the Effective Date in an amount not to exceed $5,000,000 in the aggregate at any one time outstanding;

          (g) deposits and pledges of cash securing (i) obligations incurred in respect of workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations or (iii) obligations on surety or appeal bonds, but only to the extent such deposits or pledges are made or otherwise arise in the ordinary course of business and secure obligations not past due (or as to which payment and enforcement is stayed under the Bankruptcy Code or pursuant to orders of the Bankruptcy Court);

          (h) deposits and pledges of cash of up to $16,540,128.34 securing the Continuing Obligations, as defined in the Release Agreement, dated as of the date hereof, regarding the termination of the Wachovia Pre-Petition Facility, that are held in a specified segregated account; and

          (i) easements, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by the Issuer in the normal conduct of the Issuer’s business.

          “ Permitted Priority Liens ” means any valid, perfected and non-avoidable Permitted Lien in existence immediately prior to the Filing Date, including Liens or interests arising out of Capital Leases in effect immediately prior to the Filing Date.

          “ Person ” means an individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated organization, joint venture or other enterprise or entity or Governmental Authority.

          “ Plan ” means any Employee Plan or Multiemployer Plan.

          “ Post-Default Rate ” means a rate of interest per annum equal to the rate of interest otherwise in effect from time to time pursuant to the terms of this Agreement plus 2.0%

          “ Pre-Petition Facilities ” means, collectively (i) the Loan and Security Agreement, dated August 30, 2002, made by and among the Issuer, the lenders party thereto and Wachovia

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Capital Finance Corporation (Central), as agent for the lenders, as amended, restated, supplemented or modified from time to time (the “Wachovia Pre-Petition Facility”) and (ii) the credit facility with Madeleine L.L.C. and certain other lenders, including letters of credit issued in connection therewith.

          “ Priority Professional Expenses ” means those expenses entitled to a priority as set forth in sub-clause (ii) of the clause “first” of the definition of the term “Agreed Administrative Expense Priorities”.

          “ Professional Expense Cap ” has the meaning specified in subclause (ii) of clause “first” of the definition of the term “Agreed Administrative Expense Priorities”.

          “ Pro Rata Share ” means, with respect to any Holder, the percentage obtained by dividing (i) the aggregate unpaid principal amount of such Holder’s Notes, by (ii) the aggregate unpaid principal amount of all Outstanding Notes.

          “ Purchaser ” has the meaning specified therefor in the preamble hereto.

          “ Qualified Purchaser ” means a qualified institutional buyer as defined in Rule 144A under the Securities Act and the rules and regulations promulgated thereunder

          “ Reference Bank ” means Wells Fargo Bank, N.A., its successors or any other commercial bank designated by the Required Holders to the Issuer from time to time.

          “ Reference Rate ” means the three (3) month London Interbank Offered Rate, as published in the Wall Street Journal on the Effective Date and on the corresponding day in each successive three month period; provided , that if such day is not a Business Day, then it shall be based on such rate published on the Business Day immediately preceding such date. Any change in the Reference Rate shall be deemed to be effective as of the opening of business on the date the Reference Rate is determined.

          “ Register ” has the meaning specified therefor in Section 12.07(c).

          “ Regulation T ”, “ Regulation U ” and “ Regulation X ” mean, respectively, Regulations T, U and X of the Board or any successor, as the same may be amended or supplemented from time to time.

          “ Release ” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, seeping, migrating, dumping or disposing of any Hazardous Material (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Material) into the indoor or outdoor environment, including, without limitation, the movement of Hazardous Materials through or in the ambient air, soil, surface or ground water, or property.

          “ Remedial Action ” means all actions taken to (i) clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or outdoor environment; (ii) prevent or minimize a Release or threatened Release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or

welfare or the indoor or outdoor environment; (iii) perform pre-remedial studies and investigations and post-remedial operation and maintenance activities; or (iv) perform any other actions authorized by 42 U.S.C. § 9601.

          “ Reportable Event ” means an event described in Section 4043 of ERISA (other than the commencement of the Chapter 11 Case and any event not subject to the provision for 30-day notice to the PBGC under the regulations promulgated under such Section).

          “ Responsible Officer ” means, when used with respect to an Agent, any officer within the corporate trust department of such Agent, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of such Agent who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have responsibility for the administration of this Agreement by such Agent.

          “ Required Holders ” means, at any time, Holders of more than 50% in principal amount of the Notes at the time outstanding.

          “ Sale Order ” means an order of the Bankruptcy Court authorizing a Sale Transaction under Section 363 of the Bankruptcy Code.

          “ Sale Transaction ” means a transaction pursuant to which a sale of all or substantially all of the assets of the Issuer, pursuant to Section 363 of the Bankruptcy Code, is consummated.

          “ SEC ” means the Securities and Exchange Commission or any other similar or successor agency of the Federal government administering the Securities Act.

          “ Securities Act ” means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.

          “ Security Agreement ” means the Security Agreement of even date herewith made by the Issuer in favor of the Collateral Agent for the benefit of the Agents and the Holders, substantially in the form of Exhibit F, securing the Obligations and delivered to the Collateral Agent.

          “ Standard & Poor’s ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.

          “ Subsidiary ” means, with respect to any Person at any date, any corporation, limited or general partnership, limited liability company, trust, association or other entity (i) the accounts of which would be consolidated with those of such Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (ii) of which more than 50% of (A) the outstanding Capital Stock having (in the absence of contingencies) ordinary voting power to elect a majority of the board of directors if a corporation, (B) the interest in the capital or profits if a partnership or limited liability company

or (C) the beneficial interest in such trust or estate is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such Person.

          “ Taxes ” has the meaning specified therefor in Section 3.01.

          “ Termination Event ” means (i) a Reportable Event with respect to any Employee Plan, (ii) any event that causes the Issuer or any of its ERISA Affiliates to incur liability under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the Internal Revenue Code, (iii) the filing of a notice of intent to terminate an Employee Plan or the treatment of an Employee Plan amendment as a termination under Section 4041 of ERISA, (iv) the institution of proceedings by the PBGC to terminate an Employee Plan, or (v) any other event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Employee Plan; provided , however , that no Termination Event shall be deemed to have occurred as a result of the commencement of the Chapter 11 Case.

          “ Transfer and Acceptance ” means a transfer and acceptance entered into by an assigning Holder and an assignee, and accepted by the Administrative Agent, in accordance with Section 12.07 hereof and substantially in the form of Exhibit D hereto or such other form acceptable to the Administrative Agent.

          “ Uniform Commercial Code ” has the meaning specified therefor in Section 1.03.

          “ WARN ” has the meaning specified therefor in Section 7.01(y).

          Section 1.02 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 right or interest in or to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible. References in this Agreement to “determination” by any Agent include good faith estimates by such Agent (in the case of quantitative determinations) and good faith beliefs by such Agent (in the case of qualitative determinations).

          Section 1.03 Accounting and Other Terms . Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given it under GAAP applied on a basis consistent with those used in preparing the Financial Statements. All terms used in this Agreement which are defined in Article 8 or Article 9 of the Uniform Commercial Code as in effect in the State of New York (the “ Uniform Commercial Code ”) and which are not otherwise defined herein shall have the same meanings herein as set forth therein.

          Section 1.04 Time References . Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day. For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; provided , however , that with respect to a computation of fees or interest payable to any Agent or any Holder, such period shall in any event consist of at least one full day.

ARTICLE II

AMOUNT AND TERMS OF THE NOTES

          Section 2.01 The Notes . (a) Authorization of the Notes . The Issuer will authorize the issue and sale of $125,000,000 aggregate principal amount of its senior secured term notes (the “ Notes ”). As used herein, the term “ Notes ” includes all notes originally issued pursuant to this Agreement and any notes issued in substitution therefor pursuant to Section 12.07.

          (b) Sale and Purchase of Notes . Subject to the terms and conditions and relying on the representations and warranties herein set forth and subject to the Bankruptcy Court Orders, on the Effective Date (as provided for in Section 2.01(c)), the Issuer will issue and sell to each Purchaser, and each Purchaser will purchase from the Issuer, a Note in the principal amount specified opposite such Purchaser’s name in Schedule 1.01(A) hereto, at the purchase price of 100% of the principal amount thereof.

          (c) Issuance Proceedings . On the Effective Date, the Issuer will deliver to each Purchaser the Note to be purchased by such Purchaser on such date in the form of a single Note dated the Effective Date and registered in such Purchaser’s name (or the name of such Purchaser’s nominee), against delivery by the Administrative Agent to the Issuer of each Purchaser’s immediately available funds received therefor by wire transfer for the account of the Issuer to the Administrative Agent’s Account. If on the Effective Date, the Issuer shall fail to tender any such Note to any Purchaser as provided in this Section 2.01(c), or any of the conditions specified in ARTICLE VI of this Agreement shall not have been fulfilled to the satisfaction of the Required Holders, the Purchasers shall be relieved, as a whole, of all further obligations under this Agreement, without thereby waiving any rights the Purchasers may have by reason of such failure or such nonfulfillment.

          Section 2.02 Issuing the Notes . (a) Notice of Issuance of Notes. Notice of the proposed date of issuance of the Notes shall have been given by the Issuer to the Administrative Agent not later than 12:00 noon (New York City time) one (1) Business Day prior to such proposed date (the “ Notice of Issuance ”). The Notice of Issuance shall be by telecopier,

confirmed immediately in writing the same Business Day, in substantially the form of Exhibit A, specifying the requested date of such issuance, which must be a Business Day. The Notice of Issuance shall be irrevocable and binding on the Issuer. The Administrative Agent shall give to each Purchaser prompt notice of the Notice of Issuance received from the Issuer. Each Purchaser shall before 1:00 p.m. (New York City time) on the Effective Date make available to the Administrative Agent at the Administrative Agent’s Account, by wire transfer of immediately available funds, an amount equal to such Purchaser’s ratable portion of the Notes. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in ARTICLE VI, the Administrative Agent will transfer such funds to the Issuer as directed by the Issuer in the Notice of Issuance. Until the Required Holders (or their counsel) notify the Administrative Agent that the applicable conditions set forth in ARTICLE VI have been fulfilled, the Administrative Agreement shall hold all funds in escrow; if the Administrative Agent does not receive such notice by 5:00 p.m. Eastern Standard Time on the proposed Effective Date, then such funds shall be returned promptly to the each of the Purchasers.

          (b) Obligations of Purchasers Several . The obligation of any Purchaser to purchase on the Effective Date the Note to be purchased by it in the principal amount set forth opposite such Purchaser’s name in Schedule 1.01(A) is subject to the simultaneous purchase by the other Purchasers of the Notes to be purchased by them in the respective principal amounts set forth opposite such other Purchasers’ names in Schedule 1.01(A).

          Section 2.03 Repayment . (a) Notes . The Issuer hereby promises to pay to the Administrative Agent for the account of the each Holder the outstanding principal amount of the Notes on the Final Maturity Date.

          (b) Payments to Include Accrued Interest . All repayments of principal under this Section 2.03 shall be made together with interest accrued to the date of such repayment on the principal amount repaid.

          Section 2.04 Redemptions, Etc . (a) Optional Redemptions. The Issuer may, upon at least three (3) Business Days’ prior written notice to the Administrative Agent (which notice shall state the proposed date of the redemption), and if such notice is given the Issuer shall, redeem the outstanding principal amount of the Notes issued under this Agreement in the aggregate amount and on the date specified in such notice, together with accrued interest to the date of such redemption on the principal amount prepaid, provided , that (i) each partial redemption shall be in an aggregate principal amount of $10,000,000 or any multiple thereof and (ii) such notice shall be delivered to the Administrative Agent on the relevant day not later than 12:00 noon (New York City time).

          (b) Mandatory Redemptions .

              (i)  Asset Sales . Concurrently with the consummation of any Disposition after the date hereof (after obtaining any necessary consent of the Required Holders, to the extent such Disposition is not permitted under Section 8.02(c)), and promptly but in any event not later than the third Business Day following the receipt by the Issuer of any Net Cash Proceeds of such Disposition received after such consummation, the Issuer shall redeem the Notes in an aggregate amount equal to eighty per cent (80%) of the Net Cash Proceeds of such

Disposition; provided , however, that with the written consent of the Required Holders, the Issuer may retain the Net Cash Proceeds of such Disposition and use them in the operation of the Issuer’s business. For the avoidance of doubt, any redemption of Notes pursuant to this Section 2.04(b) shall result in a permanent reduction of the aggregate principal amount of the Notes.

              (ii)  Casualty Events . In the event of any Extraordinary Receipts, the Issuer shall have 270 days to reinvest the Extraordinary Receipts in replacement property; provided that, prior to the date that is sixty (60) days following the receipt of such Extraordinary Receipts, the Issuer shall have notified the Administrative Agent of its intention to reinvest such amounts within the applicable 270 day period. To the extent it fails to so reinvest such Extraordinary Receipts in that 270 day time period, promptly but in any event not later than the third Business Day following 270 days of the receipt by the Issuer of such Extraordinary Receipts, the Issuer shall redeem the Notes in an aggregate amount equal to the amount of such Extraordinary Receipts to the extent not so reinvested.

          (c) Terms Applicable to All Redemptions . All redemptions of Notes under this Section 2.04 shall be made together with accrued interest to the date of such redemption on the principal amount redeemed. Each redemption of Notes under this Section 2.04 shall be applied to the Outstanding principal amount of the Notes of each Holder ratably based upon such Holder’s Pro Rata Share.

          Section 2.05 Interest . (a) Notes . Each Note shall bear interest on the principal amount thereof from time to time outstanding, from the date of issuance of such Note until such principal amount becomes due, at a rate per annum equal to the Reference Rate plus 7.00%.

          (b) Default Interest . To the extent permitted by law, upon the occurrence and during the continuance of an Event of Default, the principal of, and all accrued and unpaid interest on, all Notes, and all fees, indemnities or any other Obligations of the Issuer under this Agreement and the other Note Documents, shall bear interest, from the date such Event of Default occurred until the date such Event of Default is cured or waived in writing in accordance herewith, at a rate per annum equal at all times to the Post-Default Rate.

          (c) Interest Payment . Interest on each Note shall be payable monthly, in arrears, on the first day of each month, commencing on the first day of the month following the month in which the Effective Date occurs and at maturity (whether upon demand, by acceleration or otherwise); provided that interest at the Post-Default Rate shall be payable on demand.

          (d) General . All interest shall be computed on the basis of a year of 360 days for the actual number of days, including the first day but excluding the last day, elapsed.

          Section 2.06 Fees .

          (a) Closing Fees . On or prior to the Effective Date, the Issuer shall pay to the Administrative Agent for the account of the Holders, in accordance with their Pro Rata Shares, a non-refundable closing fee in the amount of $1,093,750, which fee shall be deemed fully earned when paid.

          (b)  Agents’ Fee . The Issuer shall pay to the Agents fees, consideration and other amounts in accordance with the Fee Letter and any other written agreements between an Agent and the Issuer. The Issuer’s obligations under this Section 2.06 shall survive the termination of this Agreement.

ARTICLE III

TAXATION

          Section 3.01 Payments Made Free of Taxes . Any and all payments by the Issuer hereunder shall be made, in accordance with Section 5.02, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Agent and each Holder, income and franchise taxes imposed on or measured by net income of such Person by a jurisdiction in which such Person is organized or in which its principal office is located (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “ Taxes ”). If the Issuer shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Agent or any Holder, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.01) such Person receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Issuer shall make such deductions and (iii) the Issuer shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

          Section 3.02 Other Taxes In addition, the Issuer agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment made by it hereunder or from the execution, delivery or registration of this Agreement or any Note Document (hereinafter referred to as “ Other Taxes ”).

          Section 3.03 Indemnification. The Issuer agrees to indemnify each Agent and each Holder for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this ARTICLE III) paid by such Agent or Holder and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto, whether or not correctly asserted. This indemnification shall be made within thirty (30) days from the date such Agent or Holder makes written demand therefor and such Agent’s or such Holder’s determination that it is liable for such Taxes or Other Taxes shall be conclusive absent manifest error.

          Section 3.04 Evidence of Payments. Within thirty (30) days after the date of any payment of Taxes or Other Taxes, the Issuer will furnish to the Administrative Agent, at its address referred to in Section 12.01, an official receipt or appropriate evidence of payment thereof.

          Section 3.05 Certain Obligations of Non-U.S. Holders. Each Holder organized under the laws of a jurisdiction outside the United States shall, on or prior to the date of its

execution and delivery of this Agreement (in the case of each Purchaser) and on the date of the Transfer and Acceptance pursuant to which it became a Holder (in the case of each other Holder), and from time to time thereafter if requested in writing by the Issuer or the Administrative Agent, at the written direction of the Required Holders, or promptly upon the occurrence of any event requiring a change in the last form delivered by such Holder (but, in each case, only so long as such Holder remains lawfully able to do so after the date such Holder becomes a Holder hereunder), provide the Administrative Agent and the Issuer with either (i) Internal Revenue Service form W8-BEN or W-8ECI, as appropriate, or any successor form prescribed by the Internal Revenue Service, certifying that such Holder is entitled to benefits under an income tax treaty to which the United States is a party that reduces the rate of withholding tax on payments under this Agreement and the Notes or certifying that the income receivable pursuant to this Agreement and the Notes is effectively connected with the conduct of a trade or business in the United States or (ii) Internal Revenue Service form W-8, upon which the Issuer is entitled to rely, pursuant to Sections 881(c)(2)(B) or 871(h)(5) of the Code, or any successor form or statement prescribed by the Internal Revenue Service in order to establish that such Holder is entitled to treat the interest payments under this Agreement and the Notes as portfolio interest that is exempt from withholding tax under the Code, together with a certificate stating that such Holder is not described in Section 881(c)(3) of the Code. If the form provided by a Holder at the time such Holder first becomes a party to this Agreement indicates a United States interest withholding tax rate on payments of interest hereunder in excess of zero (or if the Holder cannot provide at such time such form because it is not entitled to reduced withholding under a treaty, the payments are not effectively connected income and the payments do not qualify as portfolio interest), withholding tax at such rate (or at the then existing U.S. statutory rate if the Holder cannot provide the form) shall be excluded from Taxes unless and until such Holder provides the appropriate form certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be excluded from Taxes for periods governed by such form; provided that, if at the date of the Transfer and Acceptance pursuant to which a Holder transferee becomes a party to this Agreement, the Holder transferor was entitled to payments under Section 3.01 in respect of United States withholding tax with respect to amounts paid hereunder at such date, then, to the extent such tax results in liability for such payments, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States interest withholding tax, if any, applicable with respect to the Holder transferee on such date.

          Section 3.06 Limitation upon Indemnification of Non-U.S. Holders. For any period with respect to which a Holder has failed to provide the Issuer and the Administrative Agent with the appropriate form described in Section 3.05 (other than if such failure is due to a change in law occurring after the date on which a form originally was required to be provided or if such form otherwise is not required under Section 3.05), such Holder shall not be entitled to indemnification under Section 3.01 or Section 3.03 of this Agreement with respect to Taxes imposed by the United States.

          Section 3.07 Survival. Without prejudice to the survival of any other agreement of the Issuer hereunder, the agreements and obligations of the Issuer contained in this ARTICLE III shall survive the payment in full of principal and interest hereunder and under the Notes.

ARTICLE IV

SECURITY AND ADMINISTRATIVE PRIORITY

          Section 4.01 Collateral; Grant of Lien and Security Interest .

          (a) As security for the full and timely payment and performance of all of the Obligations, the Issuer hereby, as of the Final Bankruptcy Court Order Entry Date, assigns, pledges, transfers and grants to the Collateral Agent, for the benefit of the Holders and the Agents, a security interest in and to and Lien on all of the property, assets or interests in property or assets of the Issuer of any kind or nature whatsoever, real or personal, now existing or hereafter acquired or created, including, without limitation, all property of the “estate” (within the meaning of the Bankruptcy Code) and all accounts, inventory, goods, contract rights, instruments, securities, documents, chattel paper, general intangibles, payment intangibles, letters of credit, letter of credit rights, supporting obligations, machinery and equipment, real property, fixtures, leases, money, investment property, deposit accounts, all commercial tort claims and all causes of action arising under the Bankruptcy Code or otherwise (excluding, however, Avoidance Actions; provided, however that the proceeds of any Avoidance Actions shall be available to satisfy any administrative claim of the Collateral Agent, the Administrative Agent or the Holders provided hereunder or pursuant to the Bankruptcy Court Orders), and all cash and non-cash proceeds, rents, products and profits of any of the foregoing (all property of the Issuer subject to the security interest and Lien referred to in this Section 4.01(a) being hereafter referred to as the “ Collateral ”). Schedule 4.01(a) contains a complete and accurate description of all stock and other securities constituting Collateral as of the date hereof.

          (b) Upon entry of the Final Bankruptcy Court Order, without any further action, filing, recording or registration the Liens and security interests in favor of the Collateral Agent referred to in Section 4.01(a) hereof shall be valid and perfected Liens and security interests in the Collateral, prior to all other Liens and security interests in the Collateral, other than for the Permitted Priority Liens. Such Liens and security interests and their priority shall remain in effect until all Obligations shall have been indefeasibly repaid in cash in full.

          (c) Notwithstanding anything herein to the contrary (i) all proceeds received by the Agents and the Holders from the Collateral subject to the security interests and Liens granted in this Section 4.01 and in each other Note Document and by the Bankruptcy Court Orders shall be subject to the prior payment of the Carve-Out Expenses having priority of payment over the Obligations to the extent set forth in the definition of Agreed Administrative Expense Priorities, and (ii) no Person entitled to Carve-Out Expenses shall be entitled to sell or otherwise dispose, or seek, sell or otherwise dispose of any Collateral.

          Section 4.02 Administrative Priority . The Issuer agrees that, pursuant to Section 364(c) of the Bankruptcy Code, the Obligations shall constitute allowed superpriority administrative expenses in the Chapter 11 Case, having priority over all administrative expenses of and unsecured claims against the Issuer now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, all administrative expenses of the kind specified in, or arising or ordered under, Sections 105, 326, 328, 503(b), 506(c), 507(a), 507(b), 546(c), 726 and 1114 of the Bankruptcy Code, subject, as to priority, only to Carve-Out Expenses

having priority of payment over the Obligations to the extent set forth in the definition of Agreed Administrative Expense Priorities.

          Section 4.03 Grants, Rights and Remedies . The Liens and security interests granted pursuant to Section 4.01(a) hereof and the administrative priority granted pursuant to Section 4.02 hereof may (but need not) be independently granted by the Note Documents and by other Note Documents hereafter entered into. This Agreement, the Bankruptcy Court Orders and such other Note Documents supplement each other, and the grants, priorities, rights and remedies of the Agents and the Holders hereunder and thereunder are cumulative.

          Section 4.04 No Filings Required . The Liens and security interests referred to herein shall be deemed valid and perfected by entry of the Final Bankruptcy Court Order, and entry of the Final Bankruptcy Court Order shall have occurred on or before the date of the issuance any Note. The Collateral Agent shall not be required to file or record any financing statements, mortgages, notices of Lien or similar instruments in any jurisdiction or filing office or to take any other action in order to validate or perfect any Lien or security interest granted by or pursuant to this Agreement, the Final Bankruptcy Court Order or any other Note Document.

          Section 4.05 Survival . The Liens and security interests, lien priority, administrative priorities and other rights and remedies granted to the Agents and the Holders pursuant to this Agreement, the Bankruptcy Court Orders and the other Note Documents (specifically including, but not limited to, the existence, perfection and priority of the Liens and security interests provided herein and therein, and the administrative priority provided herein and therein) shall not be modified, altered or impaired in any manner by any other financing or extension of credit or incurrence of indebtedness by the Issuer (pursuant to Section 364 of the Bankruptcy Code or otherwise), or by any dismissal or conversion of the Chapter 11 Case, or by any other act or omission whatsoever. Without limitation, notwithstanding any such order, financing, extension, incurrence, dismissal, conversion, act or omission:

          (a) except for the Carve-Out Expenses having priority of payment over the Obligations to the extent set forth in the definition of Agreed Administrative Expense Priorities as set forth in Section 4.02, no costs or expenses of administration which have been or may be incurred in the Chapter 11 Case or any conversion of the same or in any other proceedings related thereto, and no priority claims, are or will be prior to or on a parity with any claim of the Agents and the Holders against the Issuer in respect of any Obligation;

          (b) the Liens in favor of the Agents and the Holders set forth in Section 4.01(a) hereof shall constitute valid and perfected first priority Liens and security interests, subject only to Permitted Priority Liens to which such Liens and security interests may be subordinate and junior, and shall be prior to all other Liens and security interests, now existing or hereafter arising, in favor of any other creditor or any other Person whatsoever; and

          (c) the Liens in favor of the Agents and the Holders set forth herein and in the other Note Documents shall continue to be valid and perfected without the necessity that the Collateral Agent file or record financing statements, mortgages or otherwise perfect its Lien under applicable non-bankruptcy law.

ARTICLE V

FEES, PAYMENTS AND OTHER COMPENSATION

          Section 5.01 Audit and Collateral Monitoring Expenses . The Issuer acknowledges that pursuant to Section 8.01(e), representatives of the Agents or the Required Holders may visit the Issuer and/or conduct audits, inspections, appraisals, valuations and/or field examinations of the Issuer or the Collateral at any time and from time to time in a manner so as to not unduly disrupt the business of the Issuer. The Issuer agrees to pay (i) each examiner’s out-of-pocket costs and reasonable expenses incurred in connection with all such visits, audits, inspections, appraisals, valuations and field examinations and (ii) the actual cost of all visits, audits, inspections, appraisals, valuations and field examinations conducted by a third party on behalf of the Agents.

          Section 5.02 Payments and Computations . The Issuer will make each payment under this Agreement or any other Note Document not later than 2:00 p.m. (New York City time) on the day when due, in lawful money of the United States of America and in immediately available funds, to the Administrative Agent’s Account. All payments shall be made by the Issuer without set-off, counterclaim, deduction or other defense to the Agents and/or the Holders. After receipt, the Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal ratably to the Holders in accordance with their Pro Rata Shares and like funds relating to the payment of any other amount payable to any Holder to such Holder, in each case to be applied in accordance with the terms of this Agreement. Whenever any payment to be made under any Note Document shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall in such case be included in the computation of interest or fees, as the case may be. All computations of fees shall be made by the Administrative Agent on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such fees are payable. Each determination by the Administrative Agent of an interest rate or fees hereunder shall be conclusive and binding for all purposes in the absence of manifest error.

          Section 5.03 Sharing of Payments, Etc. If any Holder shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of any Obligation in excess of its ratable share of payments on account of similar obligations obtained by all the Holders, such Holder shall forthwith purchase from the other Holders such participations in such similar obligations held by them as shall be necessary to cause such purchasing Holder to share the excess payment ratably with each of them; provided , however , that if all or any portion of such excess payment is thereafter recovered from such purchasing Holder, such purchase from each Holder shall be rescinded and such Holder shall repay to the purchasing Holder the purchase price to the extent of such recovery together with an amount equal to such Holder’s ratable share (according to the proportion of (i) the amount of such Holder’s required repayment to (ii) the total amount so recovered from the purchasing Holder of any interest or other amount paid by the purchasing Holder in respect of the total amount so recovered). The Issuer agrees that any Holder so purchasing a participation from another Holder pursuant to this Section 5.03 may, to the fullest extent permitted by law, exercise

all of its rights (including the Holder’s right of set-off) with respect to such participation as fully as if such Holder were the direct creditor of the Issuer in the amount of such participation.

          Section 5.04 Apportionment of Payments . Subject to any written agreement among the Agents and/or the Holders:

          (a) all payments of principal and interest in respect of outstanding Notes, all payments of fees (other than the fees set forth in Section 2.06(b) hereof and the audit and collateral monitoring expenses provided for in Section 5.01) and all other payments in respect of any other Obligations, shall be allocated by the Administrative Agent among such of the Holders as are entitled thereto, in proportion to their respective Pro Rata Shares or otherwise as provided herein or, in respect of payments not made on account of Notes, as designated in writing by the Person making payment when the payment is made.

          (b) Either before or after the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and upon the direction of the Required Holders shall, apply all payments in respect of any Obligations and all proceeds of the Collateral, subject to the provisions of this Agreement, (i) first , ratably to pay the Obligations in respect of any fees, expense reimbursements, indemnities and other amounts then due to the Agents until paid in full; (ii) second , ratably to pay the Obligations in respect of any fees, expense reimbursements and indemnities then due to the Holders until paid in full; (iii) third , ratably to pay interest due in respect of the Notes until paid in full; (iv) fourth , ratably to pay principal of the Notes until paid in full; and (v) fifth , to the ratable payment of all other Obligations then due and payable (or, to the extent such Obligations are contingent, to provide cash collateral in respect of such Obligations).

          (c) In the event of a direct conflict between the priority provisions of this Section 5.04 and other provisions contained in any other Note Document, it is the intention of the parties hereto that both such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 5.04 shall control and govern.

          Section 5.05 Increased Costs and Reduced Return . (a) If any Holder or any Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Holder or any Agent or any Person controlling any such Holder or any such Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Holder or any Agent or any Person controlling any such Holder or any such Agent (in each case, whether or not having the force of law) (each a “ Change in Law ”), shall (i) subject such Holder or such Agent, or any Person controlling such Holder or such Agent to any tax, duty or other charge with respect to this Agreement or any Holder or such Agent agreeing to accept for transfer, fund or maintain any Notes, or change the basis of taxation of payments to such Holder or such Agent or any Person controlling such Holder or such Agent of any amounts payable hereunder (except for taxes on the overall net income of such Holder or

such Agent or any Person controlling such Holder or such Agent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Holder by virtue of such Holder’s holding of its Notes, or against assets of or held by, or deposits with or for the account of, or credit extended by, such Holder or any Person controlling such Holder or (iii) impose on such Holder or such Agent or any Person controlling such Holder or such Agent any other condition regarding this Agreement, any Note Document or any Note, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to such Holder or such Agent of holding its Notes, or agreeing to fund or maintain its Notes, or to reduce any amount received or receivable by such Holder or such Agent hereunder or thereunder, then, upon demand by such Holder or such Agent, the Issuer shall pay to such Holder or such Agent such additional amounts as will compensate such Holder or such Agent for such increased costs or reductions in amount.

          (b) If any Holder or any Agent shall have determined that any Change in Law either (i) affects or would affect the amount of capital required or expected to be maintained by such Holder or such Agent or any Person controlling such Holder or such Agent, and such Holder or such Agent determines that the amount of such capital is increased as a direct or indirect consequence of such Holder holding its Notes, such Holder’s or such Agent’s or such other controlling Person’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on such Holder’s or such Agent’s or such other controlling Person’s capital to a level below that which such Holder or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of such Holder holding its Notes or such Holder’s or such Agent’s or such other controlling Person’s other obligations hereunder (in each case, taking into consideration, such Holder’s or such Agent’s or such other controlling Person’s policies with respect to capital adequacy), then, upon demand by such Holder or such Agent, the Issuer shall pay to such Holder or such Agent from time to time such additional amounts as will compensate such Holder or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Holder’s or such Agent’s or such other controlling Person’s capital.

          (c) All amounts payable under this Section 5.05 shall bear interest from the date that is ten (10) days after the date of demand by any Holder or any Agent until payment in full to such Holder or such Agent at the Reference Rate. A certificate of such Holder or such Agent claiming compensation under this Section 5.05, specifying the event herein above described and the nature of such event shall be submitted by such Holder or such Agent to the Issuer, setting forth the additional amount due and an explanation of the calculation thereof, and such Holder’s or such Agent’s reasons for invoking the provisions of this Section 5.05, and shall be final and conclusive absent manifest error.

ARTICLE VI

CONDITIONS TO ISSUANCE

          Section 6.01 Conditions Precedent to Effectiveness . This Agreement shall become effective as of the Business Day (the “ Effective Date ”), and each Purchaser shall become obligated to purchase and pay for the Note to be sold to such Purchaser on such date, when each

of the following conditions precedent shall have been satisfied in a manner satisfactory to the Required Holders, which must, in any event, occur on or before September 15, 2005:

          (a) Final Bankruptcy Court Order . The Final Bankruptcy Court Order shall have been entered by the Bankruptcy Court and the Administrative Agent shall have received a certified copy of such order, and such order shall be in full force and effect and shall not have been reversed, modified, amended, subject to a pending appeal, stayed or vacated absent the prior written consent of the Required Holders and the Issuer and, if the reversal, modification, amendment, appeal, stay or vacatur affects an Agent, such Agent.

          (b) Payment of Fees, Etc . The Issuer shall have paid all fees, costs, expenses and taxes then payable pursuant to the Fee Letter, and Section 2.06 and Section 12.04.

          (c) Representations and Warranties; No Event of Default . The following statements shall be true and correct: (i) the representations and warranties contained in ARTICLE VII and in each other Note Document, certificate or other writing delivered to any Agent or any Holder pursuant hereto or thereto on or prior to the Effective Date are true and correct on and as of the Effective Date as though made on and as of such date and (ii) no Default or Event of Default shall have occurred and be continuing on the Effective Date or would result from this Agreement or the other Note Documents becoming effective in accordance with its or their respective terms.

          (d) Legality . The issuance and funding of the Notes shall not contravene any law, rule or regulation applicable to any Agent or any Holder.

          (e) Delivery of Documents . The Administrative Agent shall have received on or before the Effective Date the following, each in form and substance satisfactory to the Required Holders and, unless indicated otherwise, dated the Effective Date:

              (i) this Agreement and the Security Agreement, each duly executed by the Issuer;

              (ii) the Notice of Issuance delivered in accordance with Section 2.02 hereof for the Notes to be issued on the Effective Date;

              (iii) certified copies of request for copies of information on Form UCC-11 listing all effective financing statements which name as debtor the Issuer and which are filed in the jurisdictions in which the Issuer is organized, has assets or property or maintains its chief executive office, together with copies of such financing statements, none of which, except as permitted herein or otherwise agreed in writing by the Required Holders, shall cover any of the Collateral;

              (iv) evidence of the authority of the Issuer to effect (A) the issuance of the Notes by the Issuer hereunder and the transactions contemplated by the Note Documents, and (B) the execution, delivery and performance by the Issuer of each Note Document to which it is or will be a party and the execution and delivery of the other documents to be delivered by the Issuer in connection herewith and therewith;

               (v) a certificate of an Authorized Officer of the Issuer, certifying the names and true signatures of the representatives of the Issuer authorized to sign each Note Document to which the Issuer is or will be a party and the other documents to be executed and delivered by the Issuer in connection herewith and therewith, together with evidence of the incumbency of such authorized officers;

               (vi) a certificate of the appropriate official(s) of the state of organization and each state of foreign qualification of the Issuer certifying as to the subsistence in good standing of, and the payment of taxes by, the Issuer in such states, dated as of a date within five (5) days of the Effective Date;

               (vii) a true and complete copy of the charter, certificate incorporation and any other publicly filed organizational document of the Issuer certified as of a recent date not more than five (5) days prior to the Effective Date by an appropriate official of the state of organization of the Issuer which shall set forth the same complete name of the Issuer as is set forth herein and the organizational number of the Issuer;

               (viii) a copy of the by-laws and any other organizational document of the Issuer (other than such documents delivered pursuant to Section 6.01(e)(vii)), together with all amendments thereto, certified as of the Effective Date by an Authorized Officer of the Issuer;

               (ix) an opinion of Carlton Fields, P.A., counsel to the Issuer, substantially in the form attached hereto as Exhibit C and otherwise in form and substance reasonably satisfactory to the Required Holders and as to such matters as the Required Holders may reasonably request;

               (x) a certificate of an Authorized Officer of the Issuer, certifying as to the matters set forth in subsection (c) of this Section 6.01;

               (xi) a copy of the Financial Statements, certified as of the Effective Date by an Authorized Officer of the Issuer;

               (xii) a copy of the initial Budget, together with a certificate of an Authorized Officer of the Issuer stating that the Budget has been prepared on a reasonable basis and in good faith and is based on assumptions believed by the Issuer to be reasonable at the time made and from the best information then available to the Issuer, which Budget shall be in form and substance satisfactory to the Required Holders in their sole discretion;

               (xiii) evidence of the insurance coverage required by Section 8.01 and such other insurance coverage with respect to the business and operations of the Issuer as the Required Holders may reasonably request, in each case, where requested by the Required Holders, with such endorsements as to the named insureds or loss payees thereunder as the Required Holders may request and providing that such policy may be terminated or canceled (by the insurer or the insured thereunder) only upon thirty (30) days’ prior written notice to the Collateral Agent and each such named insured or loss payee, together with evidence of the payment of all premiums due in respect thereof for such period as the Required Holders may request;

               (xiv) a satisfactory Phase I Environmental Site Assessment (“ Phase I ESA ”) provided by the Issuer to the Collateral Agent for each owned real property location of the Issuer, prepared by an independent firm satisfactory to the Required Holders which may be dated prior to the Effective Date, and such other environmental reports as the Required Holders may request;

               (xv) a certificate of an Authorized Officer of the Issuer, certifying the names and true signatures of the Persons that are authorized to provide the Notice of Issuance and all other notices under this Agreement and the other Note Documents;

               (xvi) a list of all Material Contracts as in effect on the Effective Date, certified as true and correct copies thereof by an Authorized Officer of the Issuer, together with a certificate of an Authorized Officer of the Issuer stating that such agreements remain in full force and effect and that the Issuer has not breached or defaulted in any of its obligations under such agreements except any such breach or default the enforcement of which is stayed by virtue of the filing of the Chapter 11 Case;

               (xvii) such depository account, blocked account, lockbox account and similar agreements and other documents, each in form and substance satisfactory to the Required Holders, as the Required Holders may request with respect to the accounts of the Issuer set forth in Part 1 of Schedule 7.01(u) ;

               (xviii) a landlord waiver and collateral access agreement with respect to each leased location of the Issuer, subject to the right of the Issuer to obtain such waivers and agreements post-closing pursuant to Section 8.01(m);

               (xix) such other agreements, instruments, approvals, opinions and other documents, each satisfactory to the Required Holders in form and substance, as the Required Holders may reasonably request; and

               (xx) payoff letters with respect to the repayment of the Pre-Petition Facilities and the Interim DIP Notes and the termination and release of all Liens in respect thereof in form and substance satisfactory to the Required Holders.

          (f) Material Adverse Effect . The Required Holders shall have determined, in their reasonable judgment, that no event or development shall have occurred since September 9, 2005 which could have a Material Adverse Effect.

          (g) Priority . The Required Holders shall be satisfied that the Collateral Agent has been granted, and holds, for the benefit of the Agents and the Holders, a perfected, first priority Lien on, and security interest in, all of the Collateral, subject only to Permitted Priority Liens.

          (h) Approvals . All consents, authorizations and approvals of, and filings and registrations with, and all other actions in respect of, any Governmental Authority or other Person required in connection with the issuance of the Notes by the Issuer or the conduct of the Issuer’s business shall have been obtained and shall be in full force and effect.

          (i) Litigation . Except as set forth in Schedule 7.01(f), and excluding pre-petition litigations that are stayed by 11 U.S.C. § 362, (i) there shall be no pending or, to the best knowledge of the Issuer, threatened action, suit or proceeding affecting the Issuer before any court or other Governmental Authority or any arbitrator that (A) if adversely determined, could have a Material Adverse Effect or (B) relates to this Agreement or any other Note Document or any transaction contemplated hereby or thereby.

          (j) Cash Management . The Required Holders shall be satisfied with the Issuer’s cash management system. The Bankruptcy Court shall have issued the Cash Management Order and the Administrative Agent shall have received agreements referred to in Section 6.01(e)(xvii) which obligate each bank with which the Issuer has any banking arrangements, after receipt of a Notice of Sole Control from the Administrative Agent, to pay to the Concentration Account on each Business Day all funds or deposits in any Collection Account maintained with such bank, without any further consent of the Issuer.

          (k) Appointment of Trustee or Examiner; Liquidation . No order shall have been entered or shall be pending in the Chapter 11 Case (i) for the appointment of a Chapter 11 trustee, (ii) for the appointment of an examiner with enlarged powers (beyond those set forth in Sections 1106(a)(3) and (4) of the Bankruptcy Code) under Sections 1104(d) and 1106(b) of the Bankruptcy Code or (iii) to convert the Chapter 11 Case to a Chapter 7 case or to dismiss the Chapter 11 Case.

ARTICLE VII

REPRESENTATIONS AND WARRANTIES

          Section 7.01 Representations and Warranties of the Issuer . The Issuer hereby represents and warrants to the Agents and the Holders as follows:

          (a) Organization, Good Standing, Etc. The Issuer (i) is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) subject to the entry and the terms of the Bankruptcy Court Orders, has all requisite power and authority to conduct its business as now conducted and as presently contemplated and to issue the Notes hereunder, and to execute and deliver each Note Document to which it is a party, and to consummate the transactions contemplated thereby, and (iii) is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary.

          (b) Authorization, Etc. The execution, delivery and performance by the Issuer of each Note Document to which it is or will be a party, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene its charter or by-laws, or any applicable law or any contractual restriction binding on or otherwise affecting it or any of its properties (other than conflicts, breaches and defaults the enforcement of which will be stayed by virtue of the filing of the Chapter 11 Case), or any order or decree of any court or Governmental Authority (including, without limitation, any order entered in the Chapter 11 Case), (iii) do not and will not

result in or require the creation of any Lien (other than pursuant to any Note Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties.

          (c) Governmental Approvals . Except for the entry of the Bankruptcy Court Orders, no authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by the Issuer of any Note Document to which it is or will be a party.

          (d) Execution and Binding Effect . Subject to the entry of, and the terms of the Bankruptcy Court Orders, this Agreement and each of the other Note Documents, when delivered hereunder, is or will be, duly and validly executed and delivered by the Issuer and constitutes legal, valid and binding obligations of the Issuer, enforceable in accordance with the terms hereof or thereof.

          (e) No Subsidiaries; Capital Stock . The Issuer has no Subsidiaries. Except as set forth on Schedule 7.01(e), there are no outstanding debt or equity securities of the Issuer and no outstanding obligations of the Issuer convertible into or exchangeable for warrants, options or other rights for the purchase or acquisition from the Issuer, directly or indirectly, any shares of its Capital Stock.

          (f) Litigation; Commercial Tort Claims . Except as set forth in Schedule 7.01(f), and excluding pre-petition litigations that are stayed by 11 U.S.C. § 362, (i) there is no pending or, to the best knowledge of the Issuer, threatened action, suit or proceeding affecting the Issuer before any court or other Governmental Authority or any arbitrator that (A) if adversely determined, could have a Material Adverse Effect, (B) relates to any Material Contract or (C) relates to this Agreement or any other Note Document or any transaction contemplated hereby or thereby and (ii) as of the Effective Date, the Issuer holds no commercial tort claims in respect of which a claim has been filed in a court of law or a written notice by an attorney has been given to a potential defendant.

          (g) Financial Condition .

               (i) The Financial Statements, copies of which have been delivered to each Agent and each Holder, fairly present the financial condition of the Issuer as at the respective dates thereof and the results of operations of the Issuer for the fiscal periods ended on such respective dates, all in accordance with GAAP (except as may be required as result of revenue recognition transactions in 2002, 2003, and 2004 more particularly described in the press release of the Issuer attached hereto as Exhibit G), and since either July 31, 2005 or August 31, 2005 (whichever is the date of the unaudited balance sheet of the Issuer delivered pursuant to Section 6.01(e)(xi)), no event or development has occurred that has had or could have a Material Adverse Effect.

               (ii) On or before the Effective Date, the Issuer has furnished to the Administrative Agent and each Holder the Budget. The Budget, when delivered, shall be believed by the Issuer at the time furnished to be reasonable, shall have been prepared on a

reasonable basis and in good faith by the Issuer, and shall have been based on assumptions believed by the Issuer to be reasonable at the time made and upon the best information then reasonably available to the Issuer, and the Issuer shall not be aware of any facts or information that would lead it to believe that such Budget is incorrect or misleading in any material respect.

          (h) Compliance with Law, Etc. The Issuer is not in violation of its organizational documents. Except for such violations existing as of or resulting from the commencement of the Chapter 11 Case, the Issuer is not in violation of any law, rule, regulation, judgment or order of any Governmental Authority applicable to it or any of its property or assets, or any material term of any agreement or instrument (including, without limitation, any Material Contract) binding on or otherwise affecting it or any of its properties. No Default or Event of Default has occurred and is continuing.

          (i) ERISA . Except as set forth on Schedule 7.01(i), (i) each Employee Plan is in substantial compliance with ERISA and the Internal Revenue Code, (ii) no Termination Event has occurred or is reasonably expected to occur with respect to any Employee Plan, (iii) the most recent annual report (Form 5500 Series) with respect to each Employee Plan, including any required Schedule B (Actuarial Information) thereto, copies of which have been filed with the Internal Revenue Service and delivered to the Administrative Agent, is complete and correct and fairly presents the funding status of such Employee Plan, and since the date of such report there has been no material adverse change in such funding status, (iv) copies of each agreement entered into with the PBGC, the U.S. Department of Labor or the Internal Revenue Service with respect to any Employee Plan have been delivered to the Administrative Agent, (v) no Employee Plan had an accumulated or waived funding deficiency or permitted decrease which would create a deficiency in its funding standard account or has applied for an extension of any amortization period within the meaning of Section 412 of the Internal Revenue Code at any time during the previous sixty (60) months, and (vi) no Lien imposed under the Internal Revenue Code or ERISA exists or is likely to arise on account of any Employee Plan within the meaning of Section 412 of the Internal Revenue Code. Except as set forth on Schedule 7.01(i), neither the Issuer nor any of its ERISA Affiliates has incurred any withdrawal liability under ERISA with respect to any Multiemployer Plan, or is aware of any facts indicating that it or any of its ERISA Affiliates may in the future incur any such withdrawal liability. Neither the Issuer nor any of its ERISA Affiliates nor any fiduciary of any Employee Plan has (i) engaged in a nonexempt prohibited transaction described in Sections 406 of ERISA or 4975 of the Internal Revenue Code, (ii) failed to pay any required installment or other payment required under Section 412 of the Internal Revenue Code on or before the due date for such required installment or payment, (iii) engaged in a transaction within the meaning of Section 4069 of ERISA or (iv) incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid. There are no pending or, to the best knowledge of the Issuer, threatened claims, actions, proceedings or lawsuits (other than claims for benefits in the normal course) asserted or instituted against (i) any Employee Plan or its assets, (ii) any fiduciary with respect to any Employee Plan, or (iii) the Issuer or any of its ERISA Affiliates with respect to any Employee Plan. Except as required by Section 4980B of the Internal Revenue Code, neither the Issuer nor any of its ERISA Affiliates maintains an employee welfare benefit plan (as defined in Section 3(1) of ERISA) which provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former

employee of the Issuer or any of its ERISA Affiliates or coverage after a participant’s termination of employment.

          (j) Taxes, Etc. All Federal, state and local tax returns and other reports required by applicable law to be filed by the Issuer have been filed, or extensions have been obtained, and all taxes, assessments and other governmental charges imposed upon the Issuer or any property of the Issuer that could reasonably be expected to have a Material Adverse Effect and that have become due and payable on or prior to the date hereof have been paid, except to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof on the Financial Statements in accordance with GAAP or to the extent that such payment or any enforcement action is stayed as a result of the Chapter 11 Case.

          (k) Regulations T, U and X . The Issuer is not and will not be engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation T, U or X), and no proceeds of any Note will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.

          (l) Nature of Business . The Issuer is not engaged in any business other than as a manufacturer and distributor of glass containers and receptacles for the food and drink industry.

          (m) Adverse Agreements, Etc. The Issuer is not a party to any agreement or instrument, or subject to any charter or other corporate restriction or any judgment, order, regulation, ruling or other requirement