Symbol Technologies, Inc. (Form: 8-K)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SECTION 2.07. Interest and Fees. (a) (i) Subject to the provisions of Sections 2.07(b) and 2.08, Initial Loans shall bear interest for each Interest Period commencing on or after the Closing Date and ending on or before the Initial Maturity Date on the unpaid principal thereof at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 360 days (or 365 or 366 days, as the case may be, in the case of Initial Loans bearing interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate)) equal to the Adjusted LIBO Rate in effect for such Interest Period plus the Applicable Margin.

(ii) Subject to the provisions of Section 2.07(b), Extended Loans shall bear interest for Interest Periods commencing on or after the Initial Maturity Date and ending on or before the Extended Maturity Date on the unpaid principal thereof at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 360 days) equal to the Adjusted Rate plus the Adjusted Margin.

(iii) Notwithstanding the foregoing clauses (i) and (ii) but subject to Section 2.07(b), the interest rate borne by the Loans in any Monthly Period (A) shall not exceed 11.5% per annum and (B) (subject to clause (A)) shall not be less than the interest rate in effect in the prior Monthly Period plus 50 basis points.

(iv) Any change in the interest rate on a Loan resulting from a change in the Adjusted LIBO Rate shall become effective as of the opening of business on the day on which such change is announced; provided, however, that no change (other than a change resulting from a change in Statutory Reserves) in the Adjusted LIBO Rate during an Interest Period shall affect the interest rate borne by any outstanding Loan during such Interest Period. The Administrative Agent shall as soon as practicable notify the Borrower and the Lenders of the effective date and the amount of each such change.

(b) If all or a portion of (i) the principal amount of any of the Loans or (ii) any interest payable thereon shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such Loan shall, without limiting the rights of the Lenders under Article VII, bear interest at a rate per annum that is (A) prior to the Initial Maturity Date, 2.0% above the Adjusted LIBO Rate plus the Applicable Margin (or 2.0% above the Alternate Base Rate plus the Applicable Margin, as the case may be) and (B) on or after the Initial Maturity Date, 2.0% above the Adjusted Rate plus the Adjusted Margin, in each case from the date of such nonpayment until the amount not so paid is paid in full (as well after as before judgment).

(c) Interest shall be payable in arrears on each Interest Payment Date and upon the Maturity Date in respect of which any such interest is accruing; provided that (i) additional interest accruing pursuant to Section 2.07(b) shall be payable from time to time upon demand and (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment.

(d) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error.

(e) The Borrower agrees to pay to the Administrative Agent, for its own account (for distribution, if and as appropriate, to the Lenders), the fees agreed upon in the Fee Letter at the times, in the amounts and on the terms set forth therein.

SECTION 2.08. Alternate Rate of Interest. In the event that the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for any Interest Period, or the Administrative Agent is advised by any Lender that such Lender is unable to maintain a Loan accruing interest at the Adjusted LIBO Rate, then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, the affected Initial Loans will accrue interest until the Initial Maturity Date at the Alternate Base Rate plus the Applicable Margin.

(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); or

(ii) impose on any Lender or the London interbank market any other condition affecting this Agreement or Eurocurrency Loans made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

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

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

(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.

SECTION 2.10. Break Funding Payments. In the event of (a) the payment of any principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the failure to borrow, continue or prepay any Loan on the date specified in any notice delivered pursuant hereto or (c) the assignment of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.13, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the Eurocurrency market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

SECTION 2.11. Taxes. (a) Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Bridge Loan Document (other than the Exchange Notes and the Exchange Note Indenture) shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

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

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

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

(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower as will permit such payments to be made without withholding or at a reduced rate.

(f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.11, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.11 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This Section shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other Person.

SECTION 2.12. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder or under any other Bridge Loan Document (whether of principal, interest, fees or of amounts payable under Section 2.09, 2.10 or 2.11, or otherwise) prior to the time expressly required hereunder or under such other Bridge Loan Document for such payment (or, if no such time is expressly required, prior to 12:00 noon, New York City time), on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 270 Park Avenue, New York, New York, except that payments pursuant to Sections 2.09, 2.10, 2.11 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Bridge Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment under any Bridge Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each Bridge Loan Document shall be made in dollars.

(b) Whenever any payment received by the Administrative Agent under this Agreement or under any other Bridge Loan Document, when combined with any payment received by the Trustee under the Exchange Note Indenture, is insufficient to pay in full all amounts then due and payable to the Administrative Agent, the Trustee, the Lenders and the Holders of Exchange Notes under this Agreement and the Exchange Note Indenture, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the following order, with appropriate adjustment being made to account for any payment received by the Trustee in respect of the Exchange Notes: first, to the payment of fees and expenses due and payable to the Administrative Agent and its Affiliates under and in connection with this Agreement, except any amounts payable to any such Person in its role as Lender, as provided in clause “second” of this Section 2.12(b), and to the fees and expenses due and payable to the Trustee under the Exchange Note Indenture; second, to the payment of all expenses due and payable under Section 2.10 and 9.03 and any equivalent section of the Exchange Note Indenture, ratably among the Lenders and the Exchange Note Holders in accordance with the aggregate amount of such payments owed to each Lender and Exchange Note Holder; third, to the payment of interest and amounts under Sections 2.09 and 2.11, if any, then due and payable on the Loans and the Exchange Notes ratably among the Lenders and Exchange Note Holders in accordance with the aggregate amount of interest owed to each Lender and Exchange Note Holder; and fourth, to the payment of the principal amount of the Loans and the Exchange Notes that is then due and payable, ratably among the Lenders and the Exchange Note Holders in accordance with the aggregate principal amount owed to each such Lender and Exchange Note Holder.

(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.01(c), 2.12(d) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

SECTION 2.13. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.09, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.11, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.09 or 2.11, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) If any Lender requests compensation under Section 2.09, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.11, or if any Lender defaults in its obligation to fund Loans hereunder, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.09 or payments required to be made pursuant to Section 2.11, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

SECTION 3.01. Organization; Powers. Each of the Borrower and its Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except for Disclosed Matters, and except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.

SECTION 3.02. Authorization; Enforceability. The Transactions to be entered into by each Loan Party are within such Loan Party’s corporate powers and have been duly authorized by all necessary corporate and, if required, stockholder action. This Agreement has been duly executed and delivered by each Loan Party and constitutes, and each other Bridge Loan Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a legally valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate any applicable law, statute, rule or regulation or the order of any Governmental Authority, (c) will not violate the charter, by-laws or other organizational documents of the Borrower or any of its Subsidiaries, (d) will not conflict with, or result in a default or event of default under, any agreement binding upon the Borrower or any of its Subsidiaries or its assets, (e) will not give rise to a right under any agreement binding upon the Borrower or any of its Subsidiaries or its assets to require any material payment to be made by the Borrower or any of its Subsidiaries, and (f) will not result in the creation or imposition of any material Lien on any asset of the Borrower or any of its Subsidiaries except, in the case of clauses (a), (b) and (d), as would not reasonably be expected to have a Material Adverse Effect.

SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has heretofore furnished to the Lenders (i) audited consolidated and consolidating balance sheets and related statements of operations, stockholders’ equity and cash flows of each of the Borrower and the Target Company for the three most recently completed fiscal years, (ii) unaudited consolidated and consolidating balance sheets and related statements of operations, stockholders’ equity and cash flows of each of the Borrower and the Target Company for each subsequent fiscal quarter ended at least 30 days before the Effective Date (and comparable periods for the prior fiscal year), which, in the case of such statements of the Borrower, are certified by its chief financial officer and (iii) monthly financial performance reports prepared for the Board of Directors for each fiscal month after the most recent fiscal period for which financial statements were received by the Lenders as described above and ended at least 30 days before the Effective Date. The financial statements described in clauses (i) and (ii) present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries and of (to the knowledge of the Borrower) the Target Company as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above.

(b) The Borrower has heretofore furnished to the Lenders (i) pro forma statements of operations of the Borrower for the most recently completed fiscal year and the interim period of the current fiscal year ending on the last day of the last fiscal quarter ended at least 30 days before the Effective Date, prepared to give effect to the Transactions as if they had occurred on the first day of the most recently completed fiscal year and (ii) a pro forma consolidated and consolidating balance sheet of the Borrower as of the last day of the fiscal quarter most recently ended prior to the Effective Date, prepared to give effect to the Transactions as if they had occurred on such date. Such pro forma financial statements (A) have been prepared in good faith based on assumptions believed by the Borrower to be reasonable, (B) are based on the best information available to the Borrower after due inquiry and (C) present fairly, in all material respects, the pro forma financial position of the Borrower and its consolidated Subsidiaries as of the dates and for the periods indicated as if the Transactions had occurred on the dates indicated.

(c) Except as disclosed in the financial statements referred to above or the notes thereto and except for the Disclosed Matters, after giving effect to the Transactions, none of the Borrower or its Subsidiaries has, as of the Effective Date, any material contingent liabilities, unusual long-term commitments or unrealized losses.

(d) Since December 31, 2003, there has not occurred any event, condition or circumstance that has had or could reasonably be expected to have a material adverse effect on the business, assets, condition (financial or otherwise), results of operations or liabilities (including contingent liabilities) of the Borrower or the Target Company or their respective Subsidiaries, taken as a whole.

SECTION 3.05. Properties. (a) Except as set forth in Schedule 3.05, each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes.

(b) Except for the Disclosed Matters, each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

SECTION 3.06. Litigation and Environmental Matters. (a) Except for the Disclosed Matters, there are no governmental or judicial actions, actual or (to the knowledge of the Borrower) threatened, or litigation or arbitration with any third party (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that could reasonably be expected to restrain, prevent or impose burdensome conditions on, or otherwise have a material adverse effect on the ability of the parties to consummate, the Transactions.

(b) Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.

SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and its Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except for Disclosed Matters, and except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is continuing.

SECTION 3.08. Investment and Holding Company Status. Neither the Borrower nor any of its Subsidiaries is (a) an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940 or (b) a “holding company” as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.

SECTION 3.09. Taxes. Except for the Disclosed Matters, each of the Borrower and its Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) any Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so would not reasonably be expected to result in a Material Adverse Effect.

SECTION 3.10. ERISA. Except for the Disclosed Matters, no ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of June 30, 2004, exceed by more than $25.0 million the fair market value of the assets of such Plan.

SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which the Borrower or any of its Subsidiaries is subject, and all other matters known to any of them, that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or any other Bridge Loan Document or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) contains (solely with respect to the Target Company, to the knowledge of the Borrower) any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

SECTION 3.12. Subsidiaries and Joint Ventures. The Borrower does not have any Subsidiaries other than the Subsidiaries set forth on Schedule 3.12. Neither the Borrower nor any Subsidiary holds any Capital Stock in any joint venture other than those set forth on Schedule 3.12. Schedule 3.12 sets forth as of the Effective Date the name of, and the ownership interest of the Borrower in (i) each Subsidiary of the Borrower and (ii) each joint venture in which the Borrower or any Subsidiary holds any Capital Stock, in each case as of the Effective Date. Schedule 3.12 sets forth as of the Effective Date each Subsidiary that is a Subsidiary Guarantor.

SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of all insurance maintained by or on behalf of the Borrower and its Subsidiaries as of the Effective Date. As of the Effective Date, all premiums in respect of such insurance have been paid. The Borrower believes that the insurance maintained by or on behalf of the Borrower and its Subsidiaries is adequate.

SECTION 3.14. Labor Matters. As of the Effective Date, there are no strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending or, to the knowledge of the Borrower, threatened. The hours worked by and payments made to employees of the Borrower and the Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters. All payments due from the Borrower or any Subsidiary, or for which any claim may be made against the Borrower or any Subsidiary, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of the Borrower or such Subsidiary. The consummation of the Transactions will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which the Borrower or any Subsidiary is bound.

SECTION 3.15. Solvency. Immediately after the consummation of the Transactions to occur on the Effective Date and immediately following the making of each Loan made on the Effective Date and after giving effect to the application of the proceeds of such Loans, (a) the fair value of the assets of the Borrower and the Subsidiary Guarantors, on a consolidated basis, at a fair valuation, will exceed their debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of the Borrower and the Subsidiary Guarantors, on a consolidated basis, will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) the Borrower and the Subsidiary Guarantors, on a consolidated basis, will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) the Borrower and the Subsidiary Guarantors, on a consolidated basis, will not have unreasonably small capital with which to conduct the business in which they are engaged as such business is now conducted and is proposed to be conducted following the Effective Date.

SECTION 4.01. Effective Date. The obligations of the Lenders to make Initial Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):

(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.

(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of Latham & Watkins LLP, counsel for the Borrower, substantially in the form of Exhibit B. The Borrower hereby requests such counsel to deliver such opinion.

(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Bridge Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.

(d) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraph (l) of this Section 4.01.

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

(f) The Administrative Agent shall have received evidence that the insurance required by Section 5.06 is in effect.

(g) All consents and approvals required to be obtained from any Governmental Authority or other Person in connection with the Transactions shall have been obtained, and all applicable waiting periods and appeal periods (including any extensions thereof) shall have expired, in each case without the imposition of any burdensome conditions. The Acquisition shall have been, or substantially simultaneously with the funding of Loans on the Effective Date shall be, consummated in accordance with the Acquisition Documents and applicable law, without any amendment to or waiver of any material terms or conditions of the Acquisition Documents not approved by the Administrative Agent. The Administrative Agent shall have received copies of the Acquisition Documents and all certificates, opinions and other documents delivered thereunder, certified by a Financial Officer as complete and correct and the Administrative Agent shall be satisfied in all respects with the material terms of the Acquisition Documents (including, without limitation, all provisions relating to indemnification), it being acknowledged by the Administrative Agent that the terms of the Merger Agreement reflected in the draft agreement dated July 26, 2004 and delivered to the Administrative Agent are satisfactory to the Administrative Agent.

(h) After giving effect to the Transactions, neither the Borrower nor any of its Subsidiaries shall have outstanding any shares of preferred stock or any Total Debt, other than (i) Indebtedness Incurred under the Bridge Loan Documents, (ii) loans under the Credit Agreement and (iii) Indebtedness outstanding under the Master Installment Payment Agreement dated March 31, 2004 between the Borrower and Fleet Business Credit, LLC in an aggregate amount not to exceed $13,825,379.

(i) The Administrative Agent shall have received a certificate of the chief financial officer of the Borrower, in form and substance reasonably satisfactory to the Lenders, certifying as to the solvency of the Borrower and its subsidiaries, on a consolidated basis after giving effect to the Transactions.

(j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act.

(k) The representations and warranties of each Loan Party set forth in the Bridge Loan Documents shall be true and correct on and as of the Effective Date.

(l) Immediately after giving effect to the borrowing of the Initial Loans, no Default shall have occurred and be continuing.

(m) The Guarantee of the Loans by each Subsidiary Guarantor (upon the making of such Loans) shall be in full force and effect.

(n) The pro forma consolidated and consolidating balance sheet of the Borrower referred to in Section 3.04(b)(ii) shall not be materially inconsistent with the forecasts previously provided to the Lenders.

(o) The Administrative Agent shall be satisfied that the Borrower’s EBITDA for the four-fiscal quarter period most recently ended prior to the Effective Date shall not be less than $175.0 million.

(p) The Administrative Agent shall be satisfied that the ratio of Total Debt on the Effective Date to the Borrower’s pro forma EBITDA for the four-fiscal quarter period most recently ended prior to the Effective Date (prepared in accordance with Regulation S-X under the Securities Act to give pro forma effect to the Financing Transactions (but without giving effect to the Acquisition), in each case as if they had occurred at the beginning of such four-fiscal quarter period) shall be no more than 1.5 to 1.0.

(q) The Borrower shall have obtained an amendment to the Credit Agreement reasonably satisfactory to the Administrative Agent and its counsel to provide for the consummation of the Transactions on the terms contemplated by the Commitment Letter and the attachments thereto.

(r) The Borrower shall have as of the Effective Date a balance of unrestricted global cash of no less than $75,000,000.

The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on December 31, 2004 (and, in the event such conditions are not so satisfied or waived, the Loan Commitments shall terminate at such time).

Until the Loan Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder and under the Fee Letter shall have been paid in full, the Borrower covenants and agrees with the Lenders as follows; provided that the Borrower and its Subsidiaries shall not be subject to the provisions of Sections 5.01 though 5.08 following the Initial Maturity Date:

SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:

(a) within 90 days after the end of the 2004 fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Ernst & Young LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;

(b) within 45 days after the end of each of the third fiscal quarter of 2004 and the first and second fiscal quarters of 2005, its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;

(c) within 30 days after the end of each of the first two fiscal months of each fiscal quarter of the Borrower ending prior to the Initial Maturity Date, its monthly financial performance reports prepared for the Board of Directors as of the end of and for such fiscal month and the then elapsed portion of the fiscal year;

(d) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.14, 6.15 and 6.16 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower’s audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;

(e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);

(f) at least 30 days prior to the commencement of the 2005 fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;

(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be, in each case filed or distributed prior to the Initial Maturity Date; and

(h) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Bridge Loan Document, as the Administrative Agent or any Lender may reasonably request.

SECTION 5.02. Notices of Material Events. The Borrower will furnish to the Administrative Agent and each Lender prompt written notice of the following:

(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate thereof that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;

(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; and

(d) any other development that results in, or would reasonably be expected to result in, a Material Adverse Effect.

Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other Officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names used in the conduct of its business, except as would not reasonably be expected to result in a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.11.

SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its Subsidiaries to, pay its Indebtedness and other obligations, including Tax liabilities, before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP, (c) such contest effectively suspends collection of the contested obligation and the enforcement of any Lien securing such obligation and (d) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.

SECTION 5.05. Maintenance of Properties. The Borrower will, and will cause each of its Subsidiaries to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted.

SECTION 5.06. Insurance. The Borrower will, and will cause each of its Subsidiaries to, maintain, with financially sound and reputable insurance companies insurance in such amounts (with no greater risk retention) and against such risks as are customarily maintained by companies of established repute engaged in the same or similar businesses operating in the same or similar locations. The Borrower will furnish to the Lenders, upon request of the Administrative Agent, information in reasonable detail as to the insurance so maintained.

SECTION 5.07. Books and Records; Inspection and Audit Rights. The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities. The Borrower will, and will cause each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times, during business hours, and as often as reasonably requested.

SECTION 5.08. Compliance with Laws. The Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

SECTION 5.09. Use of Proceeds. The proceeds of the Loans shall be used only for the payment of (a) the Merger Consideration, (b) fees and expenses payable in connection with the Transactions and (c) solely to the extent that fees and expenses payable in connection with the Transactions are less than $20.0 million, for general corporate purposes. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.

SECTION 5.10. Equity Offering. (a) The Borrower will file, and use all commercially reasonable efforts to cause to become effective, as soon as reasonably practicable after the Closing Date, a registration statement (the “Equity Registration Statement”) on Form S-1 in respect of an offering of its common stock for net cash proceeds of no less than $250,000,000, or, if less, the aggregate amount then outstanding or the amount then committed under the Bridge Loan Documents (the “Equity Offering”). The Borrower shall notify the Administrative Agent of its filing of the Equity Registration Statement and, promptly following receipt of any comments from the SEC in connection with such Equity Registration Statement, shall furnish the Administrative Agent with a copy of any written comments from the SEC, and shall respond promptly and appropriately to any such comments and shall furnish a copy to the Administrative Agent of any such response to the SEC.

(b) The Borrower shall use all commercially reasonable efforts to consummate the Equity Offering (or an alternative offering of securities of the Borrower for net cash proceeds in an amount required in respect of the Equity Offering pursuant to clause (a) above) as soon as reasonably practicable following the effectiveness of the Equity Registration Statement.

SECTION 5.11. Exchange Notes. (a) On the Closing Date, the Borrower shall enter into the Exchange Note Indenture on the terms set forth in Exhibit C hereto with a trustee reasonably satisfactory to the Administrative Agent (the “Trustee”), and, on or prior to the date that is nine months following the Closing Date, the Borrower shall place the full amount of the Exchange Notes that may be issued pursuant to the terms hereof in escrow, on terms reasonably satisfactory to the Administrative Agent and with a fiduciary reasonably satisfactory to the Administrative Agent, to be held, undated, in escrow pending issuance pursuant to the terms hereof. The Exchange Note Indenture shall be in such form that it can be qualified under the U.S. Trust Indenture Act of 1939, as amended.

(b) The Borrower shall, no later than ten Business Days prior to the Initial Maturity Date, (i) cause the Exchange Notes to become eligible for deposit at The Depository Trust Company (including, without limitation, by the filing of an appropriately executed letter of representations), (ii) obtain “CUSIP” and “ISIN” numbers for the Exchange Notes and (iii) cause the Exchange Notes to be eligible for trading in the Private Offerings, Resales and Trading through Automatic Linkages (“Portal”) market.

(c) If Exchange Notes are issued pursuant to the terms hereof, then, on the terms set forth in an exhibit to the Exchange Note Indenture, the Borrower shall register the Exchange Notes under the Securities Act.

(d) On or prior to the fifth Business Day following the receipt of a Notice of Extension or Exchange from a Lender in accordance with Section 2.04(c) that requests the exchange of any Loan (or portion thereof to the extent permitted by such Section) of such Lender for Exchange Notes, the Borrower shall cause to be delivered from escrow, in accordance with the instructions set forth in such Notice of Extension or Exchange and with the terms of the Exchange Note Indenture, a fully executed Exchange Note or Exchange Notes, which shall be either Increasing Rate Notes or Fixed Rate Notes as specified in such Notice of Extension or Exchange in accordance with Section 2.04(c), bearing interest and with a maturity date as set forth for such Exchange Notes in the Exchange Note Indenture, in exchange for such Loan, dated the date of the issuance of such Exchange Note. Such Exchange Note shall either (i) be recorded in book-entry form as a beneficial interest in one or more global notes deposited with the Trustee as custodian for the Depositary Trust Company and credited to the account of the exchanging Lender directly or indirectly through its participant in the DTC system, in each case in the same principal amount as such Loan (or portion thereof) being exchanged or (ii) subject to the terms of the Exchange Note Indenture, be issued as a definitive registered note payable to the order of the holder or beneficial owner, as the case may be, in the same principal amount as such Loan (or portion thereof) being exchanged.

SECTION 5.12. Further Assurances. Upon request of the Administrative Agent, the Borrower shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Agreement.

SECTION 5.13. Compliance Certificate. After the Initial Maturity Date, the Borrower shall deliver to the Administrative Agent within 120 days after the end of each fiscal year of the Borrower an Officers’ Certificate stating that in the course of the performance by the signers of their duties as Officers of the Borrower they would normally have knowledge of any Default and whether or not the signers know of any Default that occurred during such period. If they do, the certificate shall describe the Default, its status and what action the Borrower is taking or proposes to take with respect thereto.

SECTION 5.14. Future Guarantors. The Borrower shall cause each domestic Restricted Subsidiary that Guarantees any Indebtedness of the Borrower or any other Subsidiary (other than Indebtedness permitted to be Incurred pursuant to Section 6.01(b)(2)) to, and each Foreign Subsidiary that enters into a Guarantee of any Senior Indebtedness (other than a Foreign Subsidiary that Guarantees Senior Indebtedness Incurred by another Foreign Subsidiary) to, in each case, at the same time, execute and deliver to the Administrative Agent a Guaranty Agreement pursuant to which such Restricted Subsidiary will Guarantee payment of the Loans on the same terms and conditions as those set forth in Article X of this Agreement.

SECTION 5.15. SEC Reports. From and after the Initial Maturity Date, whether or not the Borrower is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Borrower shall file with the SEC (subject to the next sentence) and provide the Administrative Agent and the Lenders with such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such reports to be so filed and provided at the times specified for the filings of such reports under such Sections and containing all the information, audit reports and exhibits required for such reports. If, at any time, the Borrower is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Borrower shall nevertheless continue filing the reports specified in the preceding sentence with the SEC within the time periods required unless the SEC will not accept such a filing. The Borrower agrees that it shall not take any action for the sole purpose of causing the SEC not to accept such filings. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Borrower shall post the reports specified in the preceding sentence on its website within the time periods that would apply if the Borrower were required to file those reports with the SEC.

At any time that any of the Borrower’s Subsidiaries are Unrestricted Subsidiaries, the quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Borrower and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower.

SECTION 5.16. Take-Out Financing. (a) The Borrower shall engage one or more investment banks (collectively, the “Investment Banks”) reasonably satisfactory to the Lenders to publicly sell or privately place cash-pay, pay-in-kind, discount or other debt (including senior, senior secured, subordinated or convertible debt) or preferred equity securities of the Borrower (the “Securities”) that will provide proceeds in an amount sufficient to repay all or any portion of the principal and other amounts then outstanding under this Agreement and any Increasing Rate Notes outstanding under the Exchange Note Indenture (provided that if the aggregate amount of such required proceeds would be less than $100.0 million and the lead Investment Bank requests that a larger offering of Securities be offered in order to improve the marketability of the Securities, the Borrower shall sell or place such larger amount, up to $100.0 million in the aggregate). The Borrower shall, subject to the remainder of this clause (a), take actions reasonably necessary or desirable so that the Investment Banks can publicly sell or privately place the Securities, including, without limitation, (i) using its commercially reasonable efforts to obtain such consents or waivers, from existing lenders of the Borrower or otherwise, as may be necessary in order to permit the issuance of Securities on the terms set forth in any Securities Demand and (ii) if requested by the lead Investment Bank, (A) providing to the Investment Banks on November 15, 2004 or as soon as practicable thereafter customary marketing materials (including, without limitation, a complete preliminary prospectus or preliminary offering memorandum or preliminary private placement memorandum, as the case may be, including all information that the SEC would require in a registered offering, and customary road show materials) in respect of an offering of the Securities described by the lead Investment Bank in such request and (B) using commercially reasonable efforts to meet with Moody’s and S&P on November 15, 2004 or as soon as practicable thereafter in order to obtain ratings from Moody’s and S&P in respect of the Securities described by the lead Investment Bank in such request, and using commercially reasonable efforts to obtain such ratings as soon as practicable following such meetings. Upon notice by the lead Investment Bank (a “Securities Demand”), at any time and from time to time on or after December 1, 2004, if no Loans have been made under this Agreement or if Loans have been made under this Agreement but have not been repaid in full or Increasing Rate Notes are outstanding under the Exchange Note Indenture, the Borrower shall cause the issuance and sale of the Securities upon such terms and conditions as specified in the Securities Demand (it being understood there may be more than one Securities Demand); provided that (i) the interest, dividend or discount rate (whether floating or fixed) and issue price shall be determined by the Investment Banks in light of the then-prevailing market conditions but in no event shall the weighted average effective yield (excluding the effect of deferred debt issuance costs) on the Securities exceed 10.5%; (ii) the Investment Banks and the Borrower shall determine whether the Securities shall be issued through a public offering or a private placement; (iii) the Securities shall be issued pursuant to indentures or other governing documents in the form negotiated by the Borrower and the Investment Banks, and shall contain such terms, conditions and covenants as are typical and customary for similar financings and as are reasonably satisfactory in all respects to the Investment Banks and their counsel and the Borrower and its counsel; and (iv) all other arrangements with respect to the Securities shall be reasonably satisfactory in all respects to the Investment Banks and the Borrower in light of the then-prevailing market conditions.

(b) Notwithstanding clause (a) (but subject to clause (c)), and provided that no Default shall have occurred and be continuing, the Borrower may, by notice to the lead Investment Bank on November 15, 2004 and payment of an additional fee (the “Exercise Fee”) to the Administrative Agent (for the ratable benefit of the Lenders) on November 15, 2004 in an amount equal to 1.0% of the aggregate principal amount of Loans outstanding as of such date, extend the first date on which any Securities Demand may be made to February 15, 2005. In the event of such notice and payment of the Exercise Fee, (i) the dates referenced in clauses (ii)(A) and (ii)(B) of the foregoing clause (a) shall be changed to February 1, 2005 and (ii) the maximum weighted average effective yield referenced in clause (a) shall be increased to 11.5%.

(c) Notwithstanding clauses (a) and (b) above, in the event that the Borrower has not delivered to the Administrative Agent and the Investment Banks, on or prior to October 15, 2004, such audited annual and unaudited interim consolidated and consolidating balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target Company and pro forma statements of income and balance sheets of the Borrower (giving pro forma effect to the Transactions), in each case as would be required (and prepared in accordance with Regulation S-X as required) for inclusion in a registration statement of the Borrower on Form S-1 in order for such registration statement to be declared effective (assuming the Closing Date had occurred immediately prior to such date, and subject to ordinary course review and comment by the SEC), and in each case with such information as is necessary in order for the Investment Banks to receive reasonably satisfactory “comfort” (including “negative assurance” comfort) from the current and former independent accountants of the Borrower and the current independent accountants of the Target Company, then the lead Investment Bank shall be entitled to deliver a Securities Demand at any time and from time to time on or after October 15, 2004. Such Securities Demand shall be on the terms set forth in clause (a) above, except that (i) the Borrower shall be required to use its commercially reasonable efforts to provide to the Investment Banks on October 15, 2004 or as soon as practicable thereafter customary marketing materials (including, without limitation, a complete preliminary prospectus or preliminary offering memorandum or preliminary private placement memorandum, as the case may be, including all information, to the extent reasonably available, that the SEC would require in a registered offering, and customary road show materials) in respect of an offering of the Securities described by the lead Investment Bank in such request and (ii) the Borrower shall be required to use its commercially reasonable efforts to meet with Moody’s and S&P on October 15, 2004 or as soon as practicable thereafter in order to obtain ratings from Moody’s and S&P in respect of the Securities described by the lead Investment Bank in such request, and to obtain such ratings as soon as practicable following such meetings.

Until the Loan Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder and under the Fee Letter have been paid in full, the Borrower covenants and agrees with the Lenders as follows; provided that the Borrower and its Subsidiaries shall not be subject to the provisions of Sections 6.12(a) and Sections 6.13 though 6.16 following the Initial Maturity Date:

SECTION 6.01. Limitation on Indebtedness. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Borrower and the Subsidiary Guarantors shall be entitled to Incur Indebtedness on or after the Initial Maturity Date if, on the date of such Incurrence and after giving effect thereto on a pro forma basis, the Consolidated Leverage Ratio would be less than 3.0 to 1.0.

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

(1) Indebtedness Incurred by the Borrower or any Subsidiary Guarantor pursuant to the Credit Agreement; provided, however, that, after giving effect to any such Incurrence, the aggregate principal amount of all Indebtedness Incurred under this clause (b)(1) and then outstanding does not exceed $60.0 million less the sum of all principal payments with respect to such Indebtedness made after the Initial Maturity Date pursuant to Section 2.06(c);

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

(4) Indebtedness outstanding on the Closing Date (other than Indebtedness described in clause (1), (2) or (3) of this Section 6.01(b));

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

(6) Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to Section 6.01(a) or pursuant to clause (3), (4) or (5) of this Section 6.01(b) or this clause (6); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (5), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;

(7) Hedging Obligations consisting of (A) Interest Rate Agreements directly related to Indebtedness permitted to be Incurred by the Borrower and the Restricted Subsidiaries pursuant to this Agreement and (B) Currency Agreements entered into the ordinary course of business for the purpose of mitigating the risk to the Borrower or its Restricted Subsidiaries of currency fluctuations and not for speculative purposes;

(8) Obligations in respect of performance, bid and surety bonds and completion guarantees provided by the Borrower or any Restricted Subsidiary in the ordinary course of business;

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

(10) Indebtedness consisting of the Subsidiary Guaranty of a Subsidiary Guarantor and any Guarantee by a Subsidiary Guarantor of Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (1), (2), (3), (4) or (13) or pursuant to clause (6) to the extent the Refinancing Indebtedness Incurred thereunder directly or indirectly Refinances Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (3) or (4);

(11) Purchase Money Indebtedness Incurred to finance the acquisition by the Borrower or a Restricted Subsidiary of assets in the ordinary course of business, and Refinancing Indebtedness in respect thereof, in an aggregate principal amount which, when added together with the amount of Indebtedness Incurred pursuant to this clause (11) and then outstanding, does not exceed $10.0 million;

(12) Indebtedness of the Borrower or a Restricted Subsidiary in respect of bankers’ acceptances and other similar instruments or obligations issued, or relating to obligations incurred, in the ordinary course of business (including those issued to Governmental Authorities under applicable workers’ compensation statutes); and

(13) Indebtedness of the Borrower or a Restricted Subsidiary in an aggregate principal amount which, when taken together with all other Indebtedness of the Borrower and the Restricted Subsidiaries outstanding on the date of such Incurrence and Incurred under this clause (13), does not exceed $10.0 million.

(c) Notwithstanding the foregoing, neither the Borrower nor any Subsidiary Guarantor shall Incur (i) any Indebtedness pursuant to Section 6.01(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of the Borrower or a Subsidiary Guarantor unless such Indebtedness shall be subordinated to the Loans or to the applicable Subsidiary Guaranty to at least the same extent as such Subordinated Obligations or (ii) any Indebtedness, other than Eligible Indebtedness, prior to the Initial Maturity Date if the proceeds thereof are used, directly or indirectly, to Refinance any Obligations of the Borrower or any Subsidiary under the Credit Agreement.

(d) For purposes of determining compliance with this Section 6.01, (1) any Indebtedness outstanding or Incurred under the Credit Agreement on the Closing Date will be treated as Incurred under clause (1) of paragraph (b) above, (2) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the types of Indebtedness described above, the Borrower, in its sole discretion, shall classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and shall only be required to include the amount and type of such Indebtedness in one of the above clauses, (3) the Borrower shall be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described above and (4) the Borrower shall be entitled to reclassify any item of Indebtedness (or portion thereof) Incurred pursuant to any of clauses 6.01(b)(2) through (b)(13) above to any other of clauses 6.01(b)(2) through (b)(13) above, provided that such item of Indebtedness could be Incurred under such clause at the time of such reclassification.

SECTION 6.02. Limitation on Restricted Payments. (a) Prior to the Initial Maturity Date, the Borrower shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make a Restricted Payment. On or after the Initial Maturity Date, the Borrower shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make a Restricted Payment if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment:

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

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

(3) the aggregate amount of such Restricted Payment and all other Restricted Payments since the Initial Maturity Date would exceed the sum of (without duplication):

(A) 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the beginning of the fiscal quarter immediately following the fiscal quarter during which the Initial Maturity Date occurs to the end of the most recent fiscal quarter for which internal financial statements are available prior to the date of such Restricted Payment (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit); plus

(B) 100% of the aggregate Net Cash Proceeds received by the Borrower from the issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent to the Initial Maturity Date (other than an issuance or sale to a Subsidiary of the Borrower and other than an issuance or sale to an employee stock ownership plan or to a trust established by the Borrower or any of its Subsidiaries for the benefit of their employees) and 100% of any cash capital contribution received by the Borrower from its stockholders subsequent to the Initial Maturity Date; plus

(C) the amount by which Indebtedness of the Borrower is reduced on the Borrower’s balance sheet upon the conversion or exchange subsequent to the Initial Maturity Date of any Indebtedness of the Borrower convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Borrower (less the amount of any cash, or the fair value of any other property, distributed by the Borrower upon such conversion or exchange) provided, however, that the foregoing amount shall not exceed the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from the sale of such Indebtedness (excluding Net Cash Proceeds from sales to a Subsidiary of the Borrower or to an employee stock ownership plan or a trust established by the Borrower or any of its Subsidiaries for the benefit of their employees); plus

(D) an amount equal to the sum of (i) the net reduction in the Investments (other than Permitted Investments) made by the Borrower or any Restricted Subsidiary in any Person resulting from repurchases, repayments or redemptions of such Investments by such Person, proceeds realized on the sale of such Investments and proceeds representing the return of capital (excluding dividends and distributions), in each case received by the Borrower or any Restricted Subsidiary and (ii) to the extent such Person is an Unrestricted Subsidiary, the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the fair market value of the net assets of such Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary; provided, however, that the foregoing sum shall not exceed, in the case of any such Person or Unrestricted Subsidiary, the amount of Investments (excluding Permitted Investments) previously made (and treated as a Restricted Payment) by the Borrower or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.

(1) following the Initial Maturity Date, any Restricted Payment made out of the Net Cash Proceeds of the substantially concurrent sale of, or made by exchange for, Capital Stock of the Borrower (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the Borrower or an employee stock ownership plan or to a trust established by the Borrower or any of its Subsidiaries for the benefit of their employees) or a substantially concurrent cash capital contribution received by the Borrower from its stockholders; provided, however, that (A) such Restricted Payment shall be excluded in the calculation of the amount of Restricted Payments and (B) the Net Cash Proceeds from such sale or such cash capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of amounts under Section 6.02(a)(3)(B);

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

(3) dividends paid within 60 days after the date of declaration thereof if at such date of declaration such dividend would have complied with this Section 6.02; provided, however, that such dividend, if made after the Initial Maturity Date, shall be included in the calculation of the amount of Restricted Payments;

(4) so long as no Default has occurred and is continuing, the purchase, redemption or other acquisition of shares of Capital Stock of the Borrower or any of its Subsidiaries (A) from any current or former officer, employee or director of the Borrower or any of its Subsidiaries (or permitted transferees of such officers, employees or directors) or (B) from any Person for the sole purpose of reselling such shares of Capital Stock to current employees or officers of the Borrower or any of its Subsidiaries, in the case of each of clauses (A) and (B), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors under which such individuals purchase or sell or are granted the option to purchase or sell, shares of such Capital Stock; provided, however, that the aggregate amount of such purchases, redemptions and other acquisitions (excluding amounts representing cancelation of Indebtedness) shall not exceed $2.5 million in any calendar year plus, solely in respect of clause (B), the amount of payments received (and not previously used for Restricted Payments pursuant to clause (B)) by the Borrower or any of its Restricted Subsidiaries in respect of such Capital Stock from employees or officers pursuant to the agreement or plan pursuant to which such Capital Stock is resold to such employees and officers on or after July 1, 2004 (which payments, to the extent used for Restricted Payments pursuant to clause (B), shall not constitute Net Cash Proceeds for purposes of Section 6.02(b)(1) and shall be excluded from the calculation of amounts under Section 6.02(a)(3)(B)); provided further, however, that such purchases, redemptions and other acquisitions shall be excluded in the calculation of the amount of Restricted Payments;

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

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

(7) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Borrower; provided, however, that any such cash payment shall not be for the purpose of evading the limitations of this Section 6.02 (as determined in good faith by the Board of Directors); provided further, however, that such payments shall be excluded in the calculation of the amount of Restricted Payments;

(8) in the event of a Change of Control, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Borrower or any Subsidiary Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Subordinated Obligations, plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Borrower (or a third party to the extent permitted by this Agreement) has made a Change of Control Offer with respect to the Loans as a result of such Change of Control and has repaid all Loans with respect to which a repayment election was validly made and not withdrawn by the Lender in connection with such Change of Control Offer; provided further, however, that such repurchase and other acquisitions shall, if made after the Initial Maturity Date, be included in the calculation of the amount of Restricted Payments;

(9) payments of intercompany subordinated Indebtedness, the Incurrence of which was permitted under Section 6.01(b)(2); provided, however, that no Default has occurred and is continuing or would otherwise result therefrom; provided further, however, that such payments shall be excluded in the calculation of the amount of Restricted Payments; or

(10) the declaration and payment of dividends in respect of common stock of the Borrower consistent with the dividend policy of the Borrower as in effect on the Closing Date in an aggregate amount of such dividends not to exceed $5.0 million in any calendar year; provided, however, that such dividends, to the extent made following the Initial Maturity Date, shall be included in the calculation of the amount of Restricted Payments.

SECTION 6.03. Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Borrower shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (a) pay dividends or make any other distributions on its Capital Stock to the Borrower or a Restricted Subsidiary or pay any Indebtedness owed to the Borrower, (b) make any loans or advances to the Borrower or (c) transfer any of its property or assets to the Borrower, except:

(A) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Closing Date, including the Credit Agreement as in effect on such date;

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

(C) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 6.03(1)(A) or (B) or this clause (C) or contained in any amendment to an agreement referred to in Section 6.03(1)(A) or (B) or this clause (C); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Borrower than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;

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

(E) any encumbrance or restriction arising by reason of applicable law, rule or regulation; and

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

(G) any encumbrance or restriction (including Permitted Liens) contained in security agreements or mortgages securing Indebtedness (including Capital Lease Obligations) of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages.

The Borrower shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Borrower or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition and (2) at least 75% of the consideration thereof received by the Borrower or such Restricted Subsidiary is in the form of cash or cash equivalents.

For the purposes of this Section 6.04, the following are deemed to be cash or cash equivalents: (i) the assumption or discharge of Indebtedness of the Borrower or any Restricted Subsidiary and the release of the Borrower or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (ii) securities received by the Borrower or any Restricted Subsidiary from the transferee that are converted within 90 days by the Borrower or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion.

SECTION 6.05. Limitation on Affiliate Transactions. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with, or for the benefit of, any Affiliate of the Borrower (an “Affiliate Transaction”) unless (1) the terms thereof are no less favorable to the Borrower or such Restricted Subsidiary than those that could be obtained at the time of the Affiliate Transaction in arm’s-length dealings with a Person who is not an Affiliate; (2) if such Affiliate Transaction involves an amount in excess of $5.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the directors of the Borrower disinterested with respect to such Affiliate Transaction have determined in good faith that the criteria set forth in clause (1) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors; and (3) if such Affiliate Transaction involves an amount in excess of $10.0 million, the Board of Directors shall also have received a written opinion from an Independent Qualified Party to the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Borrower and its Restricted Subsidiaries or is not less favorable to the Borrower and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a Person who was not an Affiliate.

(b) The provisions of Section 6.05(a) shall not prohibit (1) any Investment (other than a Permitted Investment) or other Restricted Payment, in each case permitted to be made pursuant to (but only to the extent included in the calculation of the amount of Restricted Payments made pursuant to paragraph (a)(3) of) Section 6.02; (2) employment agreements entered into in the ordinary course of business and benefit plans approved by the Board of Directors, and any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (3) loans or advances to employees in the ordinary course of business in accordance with the past practices of the Borrower or its Restricted Subsidiaries, but in any event not to exceed $3.0 million in the aggregate outstanding at any one time; (4) the payment of reasonable fees to directors of the Borrower and its Restricted Subsidiaries who are not employees of the Borrower or its Restricted Subsidiaries; (5) customary arrangements for indemnity provided for the benefit of directors, officers or employees of the Borrower or its Restricted Subsidiaries in the ordinary course of business; (6) any transaction with the Borrower, a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Borrower or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity; (7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Borrower; and (8) transfers of lease receivables and related assets to Symbolease Funding LLC pursuant to the Bank of Tokyo Securitization consistent with past practice.

SECTION 6.06. Limitation on Line of Business. The Borrower shall not, and shall not permit any Restricted Subsidiary, to engage in any business other than a Related Business.

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

(1) shall not, and shall not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of any Capital Stock of any Restricted Subsidiary to any Person (other than to the Borrower or a Wholly Owned Subsidiary); and

(2) shall not permit any Restricted Subsidiary to issue any of its Capital Stock (other than, if necessary, shares of its Capital Stock constituting directors’ or other legally required qualifying shares) to any Person (other than the Borrower or a Wholly Owned Subsidiary) unless

(A) immediately after giving effect to such issuance, sale or other disposition, neither the Borrower nor any of its Subsidiaries own any Capital Stock of such Restricted Subsidiary; or

(B) immediately after giving effect to such issuance, sale or other disposition, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary and any Investment in such Person remaining after giving effect thereto is treated as a new Investment by the Borrower and such Investment would be permitted to be made under Section 6.02 if made on the date of such issuance, sale or other disposition.

For purposes of this Section 6.07, the creation of a Lien on any Capital Stock of a Restricted Subsidiary to secure Indebtedness of the Borrower or any of its Restricted Subsidiaries will not be deemed to be a violation of this Section 6.07; provided, however, that any sale or other disposition by the secured party of such Capital Stock following foreclosure of its Lien will be subject to this Section 6.07.

SECTION 6.08. Change of Control. (a) Upon the occurrence of a Change of Control, each Lender shall have the right to require that the Borrower prepay such Lender’s Loans at 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of prepayment, in accordance with the terms contemplated in Section 6.08(b).

(b) Within 30 days following any Change of Control, the Borrower shall mail a notice to each Lender with a copy to the Administrative Agent (the “Change of Control Offer”) stating:

(1) that a Change of Control has occurred and that such Lender has the right to require the Borrower to prepay such Lender’s Loans at 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of prepayment;

(3) the prepayment date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); and

(4) the instructions, as determined by the Borrower, consistent with this Section, that a Lender must follow in order to have its Loans prepaid.

(c) Lenders electing to have Loans prepaid shall be required to give notice of such election, with an appropriate form duly completed, to the Administrative Agent at the address specified in the notice at least three Business Days prior to the prepayment date. Lenders shall be entitled to withdraw their election if the Administrative Agent receives not later than one Business Day prior to the prepayment date, a telegram, telex, facsimile transmission or letter setting forth the name of the Lender, the principal amount of the Loan with respect to which a prepayment election was made and a statement that such Lender is withdrawing his election to have such Loan prepaid.

SECTION 6.09. Limitation on Liens. The Borrower shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, Incur or permit to exist any Lien (the “Initial Lien”) of any nature whatsoever on any of its properties (including Capital Stock of a Restricted Subsidiary), whether owned at the Closing Date or thereafter acquired, securing any Indebtedness, other than Permitted Liens, without effectively providing that the Loans shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations are so secured.

Any Lien created for the benefit of the Lenders pursuant to the preceding sentence shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.

SECTION 6.10. Limitation on Sale/Leaseback Transactions. The Borrower shall not, and shall not permit any Restricted Subsidiary to, enter into any Sale/Leaseback Transaction with respect to any property unless (1) the Borrower or such Restricted Subsidiary would be entitled to (A) Incur Indebtedness in an amount equal to the Attributable Debt with respect to such Sale/Leaseback Transaction pursuant to Section 6.01 and (B) create a Lien on such property securing such Attributable Debt without equally and ratably securing the Loans pursuant to Section 6.09; (2) the net proceeds received by the Borrower or any Restricted Subsidiary in connection with such Sale/Leaseback Transaction are at least equal to the fair market value (as determined by the Board of Directors) of such property; and (3) the Borrower applies the proceeds of such transaction in compliance with Section 2.06(c).

SECTION 6.11. When Borrower May Merge or Transfer Assets. (a) The Borrower shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:

(1) the resulting, surviving or transferee Person (the “Successor Company”) shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Borrower) shall expressly assume, by an amendment to this Agreement, executed and delivered to the Administrative Agent, in form satisfactory to the Administrative Agent, all the obligations of the Borrower under this Agreement and the other Bridge Loan Documents;

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

(3) immediately after giving pro forma effect to such transaction, the Consolidated Leverage Ratio of the Successor Company is less than 3.0 to 1; and

(4) the Borrower shall have delivered to the Administrative Agent an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such amendment to this Agreement (if any) comply with this Agreement;

provided, however, that clause (3) will not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Borrower (so long as no Capital Stock of the Borrower is distributed to any Person) or (B) the Borrower merging with an Affiliate of the Borrower solely for the purpose and with the sole effect of reincorporating the Borrower in another jurisdiction.

For purposes of this Section 6.11, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Borrower, which properties and assets, if held by the Borrower instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Borrower on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Borrower.

The Successor Company shall be the successor to the Borrower and shall succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement, and the Borrower, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Loans.

(b) The Borrower shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or series of transactions, all or substantially all of its assets to any Person unless: (1) except in the case of a Subsidiary Guarantor (A) that has been disposed of in its entirety to another Person (other than to the Borrower or an Affiliate of the Borrower), whether through a merger, consolidation or sale of Capital Stock or assets or (B) that, as a result of the disposition of all or a portion of its Capital Stock (other than to an Affiliate of the Borrower), ceases to be a Subsidiary, in both cases, if in connection therewith the Borrower provides an Officers’ Certificate to the Administrative Agent to the effect that the Borrower will comply with its obligations under Sections 2.06(c) and 6.04 in respect of such disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guaranty Agreement, in a form reasonably satisfactory to the Administrative Agent, all the obligations of such Subsidiary, if any, under its Subsidiary Guaranty; (2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and (3) the Borrower delivers to the Administrative Agent an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guaranty Agreement, if any, comply with this Agreement.

SECTION 6.12. Amendment of Material Documents. The Borrower shall not, and shall not permit any Restricted Subsidiary to, amend, modify or waive any of its rights under (a) the agreement governing the SAILs Debt in any manner that increases the Obligations of the Borrower and its Subsidiaries thereunder or (b) the provisions of the Exchange Note Indenture relating to Asset Dispositions and the application of Net Available Cash therefrom, including Section 4.06 of the Exchange Note Indenture and the definitions related thereto as set forth in Exhibit C hereto, in any manner adverse to the Lenders.

SECTION 6.13. Prohibition on Negative Pledges. The Borrower shall not, and shall not permit any Restricted Subsidiary (other than any Foreign Subsidiary) to, enter into any agreement, arrangement or understanding with any Person which prohibits or limits the ability of the Borrower or any of its Restricted Subsidiaries to create, Incur, assume or suffer to exist any Lien upon its property, assets or revenues, whether now owned or hereafter acquired, except such agreements, arrangements or understandings (i) as in effect on the Closing Date pursuant to the Credit Agreement, (ii) pursuant to the Bridge Loan Documents and (iii) in respect of Securities.

SECTION 6.14. Leverage Ratio. The Borrower will not permit, as of any date following the Closing Date and on or prior to the Initial Maturity Date, the ratio of (i) Total Debt as of such date to (ii) EBITDA for the most recent four consecutive fiscal quarters ended for which internal financial statements are available, to exceed 1.75 to 1.0.

SECTION 6.15. Fixed Charge Coverage Ratio. The Borrower will not permit the Fixed Charge Coverage Ratio for any period of four consecutive fiscal quarters ending on any date following the Closing Date and on or prior to the Initial Maturity Date to be less than 4.0 to 1.0.

SECTION 6.16. Minimum Unrestricted Cash. The Borrower shall not permit its balance of unrestricted global cash as of any date on or prior to the Initial Maturity Date to be less than $75,000,000.

SECTION 6.17. SAILs Debt. The Borrower shall not elect to settle the SAILs Debt in cash or terminate the SAILs Debt in a manner that would require any payment of cash by the Borrower or any Subsidiary in respect of such termination.

Prior to the Initial Maturity Date, the Events of Default and related provisions set forth in Section 7.01 shall apply. On and after the Initial Maturity Date, the Events of Default and related provisions set forth in Section 7.01 shall be deemed, without notice to, consent of or any action by any holder or beneficial owner of Loans or Exchange Notes or any other Person, to have been replaced by the Events of Default and related provisions set forth in Section 7.02 (which shall not apply prior to the Initial Maturity Date).

If a Default or Event of Default shall have occurred and be continuing on the Initial Maturity Date, the provisions of the immediately preceding paragraph shall not affect any such Default or Event of Default (or the actions or circumstances necessary to cure any such Default or Event of Default) and any notices given or cure periods commenced prior to such date with respect to any such Default or Event of Default shall be deemed given or commenced as of the actual dates thereof for all purposes.

SECTION 7.01. Events of Default Prior to Initial Maturity Date. Prior to the Initial Maturity Date (subject to the immediately preceding paragraph), each of the events set out in this Section 7.01 is an Event of Default:

(a) the Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;

(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Section) payable under this Agreement or any other Bridge Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;

(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any Subsidiary in or in connection with any Bridge Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Bridge Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect when made or deemed made;

(d) The Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02, 5.03 (with respect to the existence of the Borrower) or 5.09 or in Article VI;

(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Bridge Loan Document (other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);

(f) The Borrower or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;

(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;

(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;

(i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Section, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;

(j) the Borrower or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;

(k) one or more judgments for the payment of money in an aggregate amount in excess of $10.0 million shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 45 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;

(l) an ERISA Event (other than Disclosed Matters) shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect ; or

(m) any Guaranty purported to be created under any Bridge Loan Document shall cease to be, or shall be asserted by any Loan Party not to be, in full force and effect, except upon the consummation of any transaction permitted by this Agreement as a result of which the Subsidiary Guarantor providing such Guaranty ceases to be a Subsidiary;

then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) of this Section), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Loan Commitments, and thereupon the Loan Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower described in clause (h) or (i) of this Section, the Loan Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.

The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.

SECTION 7.02. Events of Default Following Initial Maturity Date. On and after the Initial Maturity Date, each of the events set out in this Section 7.02 is an Event of Default:

(a) the Borrower defaults in the payment of the principal of any Loan when the same becomes due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;

(b) the Borrower defaults in any payment of interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Section) payable under this Agreement or any other Bridge Loan Document, when the same becomes due and payable, and such default continues for a period of 30 days;

(d) the Borrower fails to comply with Section 5.15, 5.16, 6.01, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10, 6.12(b) or 6.17 (other than a failure to prepay Loans when required under Section 6.08) and such failure continues for 30 days after the notice specified below;

(e) the Borrower or any Subsidiary Guarantor fails to comply with any of its agreements contained in this Agreement (other than those referred to in clause (a), (b), (c) or (d) above) and such failure continues for 60 days after the notice specified below;

(f) Indebtedness of the Borrower, any Subsidiary Guarantor or any Significant Subsidiary is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds $10.0 million, or its foreign currency equivalent at the time;

(g) a Subsidiary Guarantor, the Borrower or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:

(ii) consents to the entry of an order for relief against it in an involuntary case;

(iii) consents to the appointment of a Custodian of it or for any substantial part of its property; or

(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(i) is for relief against a Subsidiary Guarantor, the Borrower or any Significant Subsidiary in an involuntary case;

(ii) appoints a Custodian of a Subsidiary Guarantor, the Borrower or any Significant Subsidiary or for any substantial part of its property; or

(iii) orders the winding up or liquidation of a Subsidiary Guarantor, the Borrower or any Significant Subsidiary;

or any similar relief is granted under any foreign laws and the order or decree remains unstayed and in effect for 60 days; or

(i) any judgment or decree for the payment of money in excess of $10.0 million or its foreign currency equivalent at the time is entered against a Subsidiary Guarantor, the Borrower or any Significant Subsidiary, remains outstanding for a period of 60 consecutive days following the entry of such judgment or decree and is not discharged, waived or the execution thereof stayed; or

(j) any Subsidiary Guaranty ceases to be in full force and effect (other than in accordance with the terms of such Subsidiary Guaranty) or any Subsidiary Guarantor denies or disaffirms its obligations under its Subsidiary Guaranty.

The term “Bankruptcy Law” means Title 11, United States Code, or any similar Federal or state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.

A Default under clause (d) or (e) is not an Event of Default until the Administrative Agent or the Lenders of at least 25% in principal amount of the outstanding Loans notify the Borrower of the Default and the Borrower does not cure such Default within the time specified after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default”.

The Borrower shall deliver to the Administrative Agent, within 30 days after the occurrence thereof, written notice in the form of an Officers’ Certificate of any Event of Default under clause (f) or (j) and any event which with the giving of notice or the lapse of time would become an Event of Default under clause (d), (e) or (i), its status and what action the Borrower is taking or proposes to take with respect thereto.

If an Event of Default (other than an Event of Default specified in Section 7.02(g) or (h) with respect to the Borrower) occurs and is continuing, the Administrative Agent by notice to the Borrower, or the Lenders of at least 25% in principal amount of the Loans by notice to the Borrower and the Administrative Agent, may declare the principal of and accrued but unpaid interest on all the Loans to be due and payable. Upon such a declaration, such principal and interest shall be due and payable immediately. If an Event of Default specified in Section 7.02(g) or (h) with respect to the Borrower occurs, the principal of and interest on all the Loans shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Administrative Agent or any Lender. The Required Lenders by notice to the Administrative Agent may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of acceleration. No such rescission shall affect any subsequent Default or impair any right consequent thereto.

Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Bridge Loan Documents, together with such actions and powers as are reasonably incidental thereto.

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

The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Bridge Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Bridge Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Bridge Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Bridge Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Bridge Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Bridge Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Bridge Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

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

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

Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.

Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Bridge Loan Document or related agreement or any document furnished hereunder or thereunder.

SECTION 9.01. Notices. (a) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:

(i) if to the Borrower, to it at Symbol Technologies, Inc., One Symbol Plaza, Holtsville, New York 11742, Attention of Chief Financial Officer, Treasurer and General Counsel (Telecopy No. (631) 738-5980);

(ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and Agency Services Group, 1111 Fannin Street, 10th Floor, Houston, Texas 77002, Attention of James DeLeon (Telecopy No. (713) 750-2666), with a copy to JPMorgan Chase Bank, 1411 Broadway, 5th Floor, New York, New York 10018, Attention of Jon Goplerud (Telecopy No. (212) 391-6251);

(iii) if to any other Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.

(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

(c) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.

SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder or under any other Bridge Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the Lenders hereunder and under the other Bridge Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Bridge Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default at the time.

(b) Neither this Agreement nor any other Bridge Loan Document (other than the Exchange Notes and the Exchange Note Indenture) nor any provision hereof or thereof may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower, the Subsidiary Guarantors and the Required Lenders or, in the case of any other such Bridge Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided that no such agreement shall (i) increase the Loan Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby, (iii) postpone the maturity of any Loan (except as expressly provided in this Agreement) or any date for the payment of any interest or fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Loan Commitment, without the written consent of each Lender affected thereby, (iv) change Section 2.12(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) change any of the provisions of this Section or the percentage set forth in the definition of “Required Lenders” or any other provision of any Bridge Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender, (vi) release any Subsidiary Guarantor from its Guaranty (except as expressly provided in this Agreement), or limit its liability in respect of such Guaranty, without the written consent of each Lender, (vii) place additional restrictions on the right to exchange Loans for Exchange Notes or modify the rate of such exchange or (viii) change any provisions of the Exchange Notes or the Exchange Notes Indenture that require (or would require if any Exchange Notes were outstanding) the approval of all Holders of Exchange Notes; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent without the prior written consent of the Administrative Agent. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Borrower, the Administrative Agent and the requisite percentage in interest of the Lenders that will remain parties hereto after giving effect to such amendment if (i) by the terms of such agreement the Loan Commitment of each Lender not consenting to the amendment provided for therein (whose consent would otherwise be required) shall terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto (whose consent would otherwise be required) receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.

SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates and the Lenders in connection with the syndication of the credit facility provided for herein (including expenses incurred in connection with due diligence), the preparation, execution, delivery and administration of the Bridge Loan Documents and any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), including the reasonable fees, disbursements and other charges of a single transaction and documentation counsel and such other local counsel and special counsel as may be required in the reasonable judgment of the Administrative Agent and its Affiliates and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent or any Lender, in connection with the enforcement or protection of its rights in connection with the Bridge Loan Documents, including its rights under this Section, or in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.

(b) The Borrower shall indemnify the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, disbursements and other charges of a single lead counsel and such other local counsel and special counsel as may be required in the reasonable judgment of the Administrative Agent and its Affiliates, incurred by or asserted against any Indemnitee arising out of, relating to, in connection with, or as a result of (i) the execution or delivery of any Bridge Loan Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Bridge Loan Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such Indemnitee.

(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the total outstanding Loans or unused Loan Commitments at the time.

(d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof.

(e) All amounts due under this Section shall be payable promptly after written demand therefor.

SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Loan to a Lender, an Affiliate of a Lender or an Approved Fund.

(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Loan Commitment or Loans, the amount of the Loan Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 unless the Administrative Agent otherwise consents;

(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;

(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; and

(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.

For the purposes of this Section 9.04(b), the term “Approved Fund” has the following meaning:

“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.09, 2.10, 2.11 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.

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

(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in this Section and any written consent to such assignment required by this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

(c)(i) Any Lender may, without the consent of the Borrower (but subject to the consent of the Administrative Agent), sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Loan Commitment or the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.09, 2.10 and 2.11 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.12(c) as though it were a Lender.

(ii) A Participant shall not be entitled to receive any greater payment under Section 2.09 or 2.11 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.11 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.11(e) as though it were a Lender.

(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

SECTION 9.05. Survival. All covenants, agreements, representations and warranties made by the Loan Parties in the Bridge Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Bridge Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Bridge Loan Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Loan Commitments have not expired or terminated. The provisions of Sections 2.09, 2.10, 2.11 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Loan Commitments or the termination of this Agreement or any provision hereof.

SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Bridge Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent or any Lender constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 9.07. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.

SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement shall be construed in accordance with and governed by the law of the State of New York.

(a) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Bridge Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Bridge Loan Document shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Bridge Loan Document against the Borrower or its properties in the courts of any jurisdiction.

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

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

SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER BRIDGE LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

SECTION 9.11. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

SECTION 9.12. Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Bridge Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or any Subsidiary and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a source other than the Borrower. For the purposes of this Section, “Information” means all information received from the Borrower relating to the Borrower or its business, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower; provided that, in the case of information received from the Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.

SECTION 10.01. Guaranties. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, to each Lender and to the Administrative Agent and its successors and assigns (a) the full and punctual payment of principal of and interest on the Loans when due, whether at maturity, by acceleration, by mandatory prepayment or otherwise, and all other monetary obligations of the Borrower under this Agreement and the other Bridge Loan Documents (other than the Exchange Notes and the Exchange Note Indenture) and (b) the full and punctual performance within applicable grace periods of all other obligations of the Borrower under this Agreement and such other Bridge Loan Documents (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article X notwithstanding any extension or renewal of any Obligation.

Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Borrower of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default on the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1) the failure of any Lender or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against the Borrower or any other Person (including any Subsidiary Guarantor) under this Agreement, the other Bridge Loan Documents or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Agreement, the other Bridge Loan Documents or any other agreement; (4) the release of any security held by any Lender or the Administrative Agent for the Guaranteed Obligations or any of them; (5) the failure of any Lender or the Administrative Agent to exercise any right or remedy against any other Guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor.

Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Lender or the Administrative Agent to any security held for payment of the Guaranteed Obligations.

Except as expressly set forth in Sections 10.02 and 10.06, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Lender or the Administrative Agent to assert any claim or demand or to enforce any remedy under this Agreement, the other Bridge Loan Documents or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity.

Each Subsidiary Guarantor further agrees that its Guaranty herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Obligation is rescinded or must otherwise be restored by any Lender or the Administrative Agent upon the bankruptcy or reorganization of the Borrower or otherwise.

In furtherance of the foregoing and not in limitation of any other right which any Lender or the Administrative Agent has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Borrower to pay the principal of or interest on any Obligation when and as the same shall become due, whether at maturity, by acceleration, by mandatory prepayment or otherwise, or to perform or comply with any other Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash, to the Lenders or the Administrative Agent an amount equal to the sum of (A) the unpaid amount of such Guaranteed Obligations, (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (C) all other monetary Guaranteed Obligations of the Borrower to the Lenders and the Administrative Agent.

Each Subsidiary Guarantor agrees that, as between it, on the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article VII for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article VII, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section.

Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Administrative Agent or any Lender in enforcing any rights under this Section.

SECTION 10.02. Limitation on Liability. Any term or provision of this Agreement to the contrary notwithstanding, the maximum aggregate amount of the Obligations Guaranteed hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby Guaranteed without rendering this Agreement, as it relates to such Subsidiary Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.

SECTION 10.03. Successors and Assigns. This Article X shall be, subject to Section 10.06, binding upon each Subsidiary Guarantor and its successors and assigns and shall enure to the benefit of the successors and assigns of the Administrative Agent and the Lenders and, in the event of any transfer or assignment of rights by any Lender or the Administrative Agent, the rights and privileges conferred upon that party in this Agreement and in the other Bridge Loan Documents shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Agreement.

SECTION 10.04. No Waiver. Neither a failure nor a delay on the part of either the Administrative Agent or the Lenders in exercising any right, power or privilege under this Article X shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Administrative Agent and the Lenders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article X at law, in equity, by statute or otherwise.

SECTION 10.05. Modification. No modification, amendment or waiver of any provision of this Article X, nor the consent to any departure by any Subsidiary Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Administrative Agent, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor to any other or further notice or demand in the same, similar or other circumstances.

SECTION 10.06. Release of Subsidiary Guarantor. A Subsidiary Guarantor will be released from its obligations under this Article X (other than any obligation that may have arisen under Section 10.07):

(1) upon the sale (including any sale pursuant to any exercise of remedies by a holder of Senior Indebtedness of the Borrower or of such Subsidiary Guarantor) or other disposition (including by way of consolidation or merger) of a Subsidiary Guarantor;

(2) upon the sale or disposition of all or substantially all the assets of such Subsidiary Guarantor;

(3) upon the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the terms of this Agreement;

(4) at such time as such Subsidiary Guarantor does not have any Indebtedness outstanding that would have required such Subsidiary Guarantor to enter into a Guaranty Agreement pursuant to Section 5.14 and the Borrower provides an Officers’ Certificate to the Administrative Agent certifying that no such Indebtedness is outstanding and that the Borrower elects to have such Subsidiary Guarantor released from this Article X;

(5) upon the full satisfaction of the Borrower’s obligations under this Agreement;

provided, however, that in the case of clauses (1) and (2) above, (i) such sale or other disposition is made to a Person other than the Borrower or an Affiliate of the Borrower, (ii) such sale or disposition is otherwise permitted by this Agreement and (iii) the Borrower provides an Officers’ Certificate to the Administrative Agent to the effect that the Borrower will comply with its obligations under Sections 2.06(c) and 6.04.

At the request of the Borrower, the Administrative Agent shall execute and deliver an appropriate instrument evidencing such release.

SECTION 10.07. Contribution. Each Subsidiary Guarantor that makes a payment under its Subsidiary Guaranty shall be entitled upon payment in full of all Guaranteed Obligations under this Agreement to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.

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

Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of the Indenture.

EXCHANGE NOTE INDENTURE dated as of September 9, 2004, among Symbol Technologies, Inc., a Delaware corporation (the “Company”), the Subsidiary Guarantors from time to time party hereto and The Bank of New York, a New York banking corporation, as Trustee.

Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Company’s Securities.

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

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

“Affiliate” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing. For purposes of Sections 4.04, 4.06 and 4.07 only, “Affiliate” shall also mean any beneficial owner of Capital Stock representing 10% or more of the total voting power of the Voting Stock (on a fully diluted basis) of the Company or of rights or warrants to purchase such Capital Stock (whether or not currently exercisable) and any Person who would be an Affiliate of any such beneficial owner pursuant to the first sentence of this definition.

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

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

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

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

other than, in the case of clauses (1), (2) and (3) above, (A) a disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Restricted Subsidiary, (B) for purposes of Section 4.06 only, (i) a disposition that constitutes a Restricted Payment (or would constitute a Restricted Payment but for the exclusions from the definition thereof) and that is not prohibited by Section 4.04 and (ii) a disposition of all or substantially all the assets of the Company in accordance with Section 5.01, (C) a disposition of assets with a fair market value of less than $1.0 million, (D) a disposition of cash or Temporary Cash Investments, (E) the creation of a Lien (but not the sale or other disposition of the property subject to such Lien), (F) a disposition of obsolete, damaged or worn out equipment or property in the ordinary course of business, (G) sales, licenses or leases of inventory, property, equipment or intellectual property in the ordinary course of business and (H) a disposition of lease receivables and related assets to Symbolease Funding LLC pursuant to the Bank of Tokyo Securitization, except to the extent prohibited by Section 4.04.

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

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

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

“Bridge Loan Agreement” means the Bridge Loan Agreement dated as of September 9, 2004, among the Company, the Subsidiary Guarantors named therein, the Lenders named therein and the Administrative Agent named therein.

“Bridge Loan Documents” means this Indenture, the Securities, the Bridge Loan Agreement, the Fee Letter, all guaranties of the Loans and Securities, and any related security documents, in each case including any annexes, exhibits, appendices or schedules thereto.

“Capital Lease Obligation” means an obligation that is required to be classified and accounted for as a capital lease for financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. For purposes of Section 4.11, a Capital Lease Obligation will be deemed to be secured by a Lien on the property being leased.

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

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

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

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

“Closing Date” means the date on which the Lenders first make Loans under the Bridge Loan Agreement.

“Company” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained herein and required by the TIA, each other obligor on the indenture securities.

“Consolidated Interest Expense” means, for any period, the gross interest expense of the Company and its Restricted Subsidiaries for such period, as determined in accordance with GAAP.

“Consolidated Leverage Ratio” as of any date of determination means the ratio of (1) the aggregate amount of Indebtedness of the Company and its Restricted Subsidiaries as of such date of determination to (2) EBITDA for the most recent four consecutive fiscal quarters ended for which internal financial statements are available (the “Reference Period”); provided, however, that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in each case, for such period. Notwithstanding the foregoing, for the purpose of Section 4.04 only, there shall be excluded from Consolidated Net Income any repurchases, repayments or redemptions of Investments, proceeds realized on the sale of Investments or return of capital to the Company or a Restricted Subsidiary to the extent such repurchases, repayments, redemptions, proceeds or returns are included in the amount of Restricted Payments permitted under such Section pursuant to Section 4.04(a)(3)(D).

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

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

“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

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

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

in each case on or prior to the first anniversary of the Final Maturity Date; provided, however, that any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such Person to purchase or redeem such Capital Stock upon the occurrence of an “asset sale” or “change of control” occurring prior to the first anniversary of the Final Maturity Date shall not constitute Disqualified Stock if (A) the “asset sale” or “change of control” provisions applicable to such Capital Stock are not more favorable to the holders of such Capital Stock than the corresponding terms applicable to the Securities in Sections 4.06 and 4.10 of this Indenture and (B) any such requirement only becomes operative after compliance with such terms applicable to the Securities, including the purchase of any Securities tendered pursuant thereto.

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

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

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

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

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

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

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

“Equity Offering” means an underwritten primary public or private offering for cash of common stock of the Company.

“Exchange Date” means, as to each Security, the date upon which that Security was exchanged for Loans.

“Exchange Notes” means, collectively, the Fixed Rate Notes and Increasing Rate Notes, but excluding any Substitute Exchange Notes.

“Exchange Spread” means 0 basis points during the one-month period commencing on the Initial Maturity Date and shall increase by 50 basis points at the beginning of each subsequent one-month period.

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

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

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

“Fixed Rate Note” means a Security bearing a fixed rate of interest pursuant to Section 2.02(b) and subject to call protection as provided in Section 2.02(c).

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

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

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

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

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

“Guaranty Agreement” means a supplemental indenture, in a form satisfactory to the Trustee, pursuant to which a Subsidiary Guarantor guarantees the Company’s obligations with respect to the Securities on the terms provided for in this Indenture.

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

“Holder” or “Securityholder” means the Person in whose name a Security is registered on the Registrar’s books.

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

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

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

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

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

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

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

“Indenture” means this Indenture as amended or supplemented from time to time.

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

“Initial Rate” shall be determined on the Initial Maturity Date and shall equal the interest rate borne by the Loans on the day immediately preceding the Initial Maturity Date plus 50 basis points.

“Interest Payment Date” means March 1 and September 1 of each year following the Exchange Date of such Security, and the Final Maturity Date.

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

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

For purposes of the definition of “Unrestricted Subsidiary”, the definition of “Restricted Payment” and Section 4.04:

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

“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions are not required to be open in the State of New York.

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

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

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

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

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

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

“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer or the Secretary of the Company.

“Opinion of Counsel” means a written opinion from legal counsel. The counsel may be an employee of or counsel to the Company.

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

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

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

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

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

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

(8) any Person to the extent such Investment represents the non-cash portion of the consideration received for (a) an Asset Disposition as permitted pursuant to Section 4.06 or (b) a disposition of assets not constituting an Asset Disposition, in each case other than any Investment arising pursuant to the Bank of Tokyo Securitization;

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

(11) any Person to the extent such Investments consist of Hedging Obligations otherwise permitted under Section 4.03;

(12) any Person to the extent such Investment exists on the Initial Maturity Date (subject to clauses (14) and (15) below), and any extension, modification or renewal of any such Investments existing on the Initial Maturity Date, but only to the extent not involving additional advances, contributions or other Investments of cash or other assets or other increases thereof (other than as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such Investment as in effect on the Initial Maturity Date);

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

(14) Persons to the extent such Investments, when taken together with all other Investments made pursuant to this clause (14) and outstanding on the date such Investment is made, do not exceed $15.0 million. Any Investment made pursuant to clause (14) of the definition of “Permitted Investment” under the Bridge Loan Agreement and outstanding on the Initial Maturity Date shall be deemed to have been made pursuant to this clause (14) for all purposes of this Indenture; and

(15) an Unrestricted Subsidiary pursuant to the Bank of Tokyo Securitization, to the extent such Investments, when taken together with all other Investments made pursuant to the Bank of Tokyo Securitization (except to the extent made pursuant to clause (12) or (14) above or Section 4.04(a)) and outstanding on the date such Investment is made, do not exceed $15.0 million. Any Investment made pursuant to clause (15) of the definition of “Permitted Investment” under the Bridge Loan Agreement and outstanding on the Initial Maturity Date shall be deemed to have been made pursuant to this clause (15) for all purposes of this Indenture.

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

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

(7) Liens to secure Indebtedness Incurred under Section 4.03(b)(1) and Section 4.03(b)(13) (to the extent Incurred pursuant to the Credit Agreement);

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

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

Notwithstanding the foregoing, “Permitted Liens” will not include any Lien described in clause (6), (9) or (10) above to the extent such Lien applies to any Additional Assets acquired directly or indirectly from Net Available Cash pursuant to Section 4.06. For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.

“principal” of a Security means the principal of the Security plus the premium, if any, payable on the Security which is due or overdue or is to become due at the relevant time.

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

“Refinancing Indebtedness” means Indebtedness that Refinances any Indebtedness of the Company or any Restricted Subsidiary existing on the Initial Maturity Date or Incurred in compliance with this Indenture, including Indebtedness that Refinances Refinancing Indebtedness; provided, however, that:

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

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

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

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

“Registered Exchange Offer” has the meaning assigned thereto in Exhibit C hereto.

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

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

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

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

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

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

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

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

“Securities” means, collectively, the Exchange Notes and the Substitute Exchange Notes issued pursuant to this Indenture.

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

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

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

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

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

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

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

“Subsidiary Guarantor” means each Subsidiary of the Company that executes this Indenture as a Guarantor and each other Subsidiary of the Company that thereafter Guarantees the Securities pursuant to the terms of this Indenture.

“Subsidiary Guaranty” means a Guarantee by a Subsidiary Guarantor of the Company’s obligations with respect to the Securities.

“Substitute Exchange Note” means a note issued in exchange for an outstanding Exchange Note pursuant to a Registered Exchange Offer.

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

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

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

“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of this Indenture.

“Transfer Date” means, for any transfer or sale of Securities, the date upon which that transfer or sale is completed.

“Trustee” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.

“Trust Officer” means the Chairman of the Board, the President or any other officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters.

“Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to time.

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

(3) in the event such Subsidiary is designated an Unrestricted Subsidiary pursuant to the Bridge Loan Agreement on the Initial Maturity Date, and until properly redesignated a Restricted Subsidiary pursuant hereto, Symbolease Funding LLC.

The Board of Directors may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that either (A) the Subsidiary to be so designated has total assets of $1,000 or less or (B) if such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 4.04. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that immediately after giving effect to such designation (A) the Company could Incur $1.00 of additional Indebtedness under Section 4.03(a) and (B) no Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing provisions.

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

SECTION 1.03. Incorporation by Reference of Trust Indenture Act. This Indenture is subject to the mandatory provisions of the TIA which are incorporated by reference in and made a part of this Indenture. The following TIA terms have the following meanings:

“obligor” on the indenture securities means the Company, each Subsidiary Guarantor and any other obligor on the indenture securities.

All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions.

(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

(5) words in the singular include the plural and words in the plural include the singular;

(6) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness;

(7) secured Indebtedness shall not be deemed to be subordinate or junior to any other secured Indebtedness merely because it has a junior priority with respect to the same collateral;

(8) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated such date prepared in accordance with GAAP; and

(9) the principal amount of any Preferred Stock shall be (A) the maximum liquidation value of such Preferred Stock or (B) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater.

SECTION 2.01. Principal Amount and Maturity. (a) The principal amount of the Exchange Notes received by each Securityholder will equal 100.0% of the aggregate principal amount of the Loans for which they are exchanged pursuant to Section 2.04 hereof. If a Default shall have occurred and be continuing under the Bridge Loan Agreement on the date of such exchange, any notices given or cure periods commenced while the Loans were outstanding shall be deemed given or commenced (as of the actual dates thereof) for all purposes with respect to the Security (with the same effect as if the Security had been outstanding as of the actual dates thereof).

SECTION 2.02. Interest Rates. (a)(i) Except as otherwise provided in clause (ii) below and Section 2.02(b) and (d) below, Securities shall bear interest for the period from and including the Exchange Date for such Security to, but excluding, the Final Maturity Date, at a rate per annum equal to the Initial Rate plus the Exchange Spread.

(ii) Notwithstanding the foregoing clause (i), but subject to Section 2.02(d), the interest rate borne by any Security shall not exceed 11.5% per annum.

(b) In the event that a Securityholder transfers or sells an Increasing Rate Note to a third party as permitted by Section 2.03, the Securityholder so selling shall have the option on the Transfer Date to require that the Increasing Rate Note sold thenceforth have call protection as provided in clause (c) below and bear interest at a fixed rate per annum equal to the annual rate of interest accruing on that Security on the Transfer Date; provided, however, that such fixed rate may exceed the rate accruing on such Security on the Transfer Date (but may not, subject to Section 2.02(d), exceed 11.5% per annum) if the transferring Securityholder determines and represents to the Company on the Transfer Date that a higher rate is necessary in order to permit such Securityholder to sell such Security to a third party and receive consideration equal to the principal amount thereof plus all accrued and unpaid interest to the Transfer Date. If the Securityholder elects such option, (i) in the case of a transfer of a beneficial interest in a Global Security, (A) the Depositary shall present the appropriate Increasing Rate Global Note to the Trustee, (B) the Trustee shall endorse such Increasing Rate Global Note to reflect the reduction of the principal amount of such Increasing Rate Global Note and apply such principal amount to a corresponding Fixed Rate Global Note with such fixed interest rate and (C) the Trustee shall note on such Fixed Rate Global Note the applicable Transfer Date, and (ii) in the case of Definitive Securities, upon surrender of the appropriate Increasing Rate Definitive Note or Notes to be transferred, the Registrar shall register the transfer and the Company shall execute and the Trustee shall authenticate an equal principal amount of a corresponding Fixed Rate Definitive Note or Notes with such terms.

(c) Each Fixed Rate Note shall, subject to Section 3.01(d), be non-callable for four years from the Initial Maturity Date and shall be callable thereafter at a price equal to 100% of its principal amount plus accrued and unpaid interest plus a premium equal to one half of the coupon in effect on such Fixed Rate Note following such transfer, which premium shall decline ratably on each yearly anniversary of the Initial Maturity Date to zero one year prior to the Final Maturity Date; provided, however, that such call protection shall not apply to any call for redemption issued by the Company prior to the date such Security became a Fixed Rate Note.

(d) If all or any portion of (i) the principal amount of any Security or (ii) any interest payable thereon shall not be paid when due (whether at the Stated Maturity, by acceleration or otherwise), such Security shall, without limiting the rights of the Securityholders, bear interest at a rate per annum that is 2% above the rate otherwise applicable to such Security from the date of such nonpayment until the amount not so paid is paid in full (both before and after judgment).

(e) Interest shall be payable in arrears on each Interest Payment Date. Payments made on the first Interest Payment Date after the Exchange Date with respect to any Security shall include any interest accrued but not paid on the Loans exchanged for such Security, and payments made on the first Interest Payment Date after the Transfer Date with respect to any Fixed Rate Note shall include any interest accrued but not paid on the Increasing Rate Note prior to such transfer.

SECTION 2.03. Transferability. Each Securityholder shall have an unconditional right to sell its Securities subject to, and in compliance with, the provisions of this Indenture and applicable law.

SECTION 2.04. Procedure for Exchange. On the fifth Business Day (or the tenth Business Day, in the case of a request for exchange other than on a maturity date of a Loan, in accordance with Section 2.04(c) of the Bridge Loan Agreement) following receipt by the Company of a written request from a Lender (or beneficial owner of a portion of a Loan) to exchange some or all of such Lender’s Loans in accordance with Section 2.04(c) of the Bridge Loan Agreement, the Company shall exchange such Loans or portion thereof for Securities payable to the order of such Lender (or such beneficial owner), and issued in accordance with Section 2.06, in the same principal amount as the Loans (or portion thereof) being exchanged and shall cause each Subsidiary Guarantor to endorse its Guarantee thereon.

SECTION 2.05. Form and Dating. Provisions relating to the Securities are set forth in the Appendix attached hereto, which is hereby incorporated in, and expressly made a part of, this Indenture. The Increasing Rate Notes (whether in global or definitive form) and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto. The Fixed Rate Notes (whether in global or definitive form) and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit B hereto. Any Substitute Exchange Notes (whether in global or definitive form) and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A or B hereto, as applicable, but shall not bear the Restricted Securities Legend. The Securities may have notations, legends or endorsements required by law, stock exchange rule, agreements to which the Company is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Company). Each Security shall be dated the date of its authentication. The terms of the Securities set forth in Exhibits A and B are part of the terms of this Indenture.

SECTION 2.06. Execution and Authentication. Two Officers shall sign the Securities for the Company by manual or facsimile signature. The Company’s seal shall be impressed, affixed, imprinted or reproduced on the Securities and may be in facsimile form.

If an Officer whose signature is on a Security no longer holds that office at the time the Trustee authenticates the Security, the Security shall be valid nevertheless.

A Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

The Trustee shall authenticate and deliver from time to time on the applicable Exchange Dates or the date of the Registered Exchange Offer, as the case may be, (1) Exchange Notes for issue in a principal amount as set forth in this Article 2 (not to exceed $250,000,000 in the aggregate) and (2) Substitute Exchange Notes for issue only as provided in Exhibit C hereto, for a like principal amount of Exchange Notes exchanged pursuant thereto, in each case upon a written order of the Company signed by two Officers or by an Officer and either an Assistant Treasurer or an Assistant Secretary of the Company. Such order shall specify the amount of the Securities to be authenticated, the date on which the original issue of Securities is to be authenticated, whether the Securities are to be Exchange Notes or Substitute Exchange Notes, whether the Securities are to be Increasing Rate Notes or Fixed Rate Notes, whether the Securities are to be Definitive Securities or Global Securities and whether or not the Securities shall bear the Restricted Securities Legend, or such other information as the Trustee may reasonably request.

The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate the Securities. Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.

SECTION 2.07. Registrar and Paying Agent. The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (the “Registrar”) and an office or agency where Securities may be presented for payment (the “Paying Agent”). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may have one or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent.

The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-registrar not a party to this Indenture, which shall incorporate the terms of the TIA. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of any such agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company or any Wholly Owned Subsidiary incorporated or organized within The United States of America may act as Paying Agent, Registrar, co-registrar or transfer agent.

The Company initially appoints the Trustee as Registrar and Paying Agent in connection with the Securities.

SECTION 2.08. Paying Agent To Hold Money in Trust. Prior to each due date of the principal and interest on any Security, the Company shall deposit with the Paying Agent a sum sufficient to pay such principal and interest when so becoming due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Securities and shall notify the Trustee of any default by the Company in making any such payment. If the Company or a Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon complying with this Section, the Paying Agent shall have no further liability for the money delivered to the Trustee.

SECTION 2.09. Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee, in writing at least five Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Securityholders.

SECTION 2.10. Transfer and Exchange. The Securities shall be issued in registered form and shall be transferable only upon the surrender of a Security for registration of transfer. When a Security is presented to the Registrar or a co-registrar with a request to register a transfer, the Registrar shall register the transfer as requested if the requirements of this Indenture and Section 8-401(1) of the Uniform Commercial Code are met. When Securities are presented to the Registrar or a co-registrar with a request to exchange them for an equal principal amount of Securities of other denominations, the Registrar shall make the exchange as requested if the same requirements are met.

SECTION 2.11. Replacement Securities. If a mutilated Security is surrendered to the Registrar or if the Holder of a Security claims that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security if the requirements of Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies any other reasonable requirements of the Trustee. If required by the Trustee or the Company, such Holder shall furnish an indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and any co-registrar from any loss which any of them may suffer if a Security is replaced. The Company and the Trustee may charge the Holder for their expenses in replacing a Security.

SECTION 2.12. Outstanding Securities. Securities outstanding at any time are all Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section as not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.

If a Security is replaced pursuant to Section 2.11, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a bona fide purchaser.

If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a redemption date or maturity date money sufficient to pay all principal and interest payable on that date with respect to the Securities (or portions thereof) to be redeemed or maturing, as the case may be, then on and after that date such Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue.

SECTION 2.13. Temporary Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Securities and deliver them in exchange for temporary Securities.

SECTION 2.14. Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and dispose of (subject to the record retention requirements of the Exchange Act) all Securities surrendered for registration of transfer, exchange, payment or cancellation and deliver, in its customary manner, a certificate of such disposal to the Company unless the Company directs the Trustee in writing to deliver canceled Securities to the Company. The Company may not issue new Securities to replace Securities it has redeemed, paid or delivered to the Trustee for cancellation.

SECTION 2.15. Defaulted Interest. If the Company defaults in a payment of interest on the Securities, the Company shall pay defaulted interest as provided herein (plus interest on such defaulted interest to the extent lawful) in any lawful manner. The Company may pay the defaulted interest to the persons who are Securityholders on a subsequent special record date. The Company shall fix or cause to be fixed any such special record date and payment date to the reasonable satisfaction of the Trustee and shall promptly mail to each Securityholder a notice that states the special record date, the payment date and the amount of defaulted interest to be paid.

SECTION 2.16. CUSIP and ISIN Numbers. The Company in issuing the Securities may use “CUSIP” and “ISIN” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.

SECTION 3.01. Mandatory and Optional Redemption. (a) If (i) the Company or any of its Subsidiaries shall Incur any Indebtedness (other than Indebtedness Incurred under Section 4.03(b)(1), (2), (3), (4), (5), (7), (8), (9), (10), (11), (12) or (13), but including any debt securities issued pursuant to Section 4.17), (ii) the Company or any of its Subsidiaries shall issue any Capital Stock (other than (A) to the Company or a Restricted Subsidiary, (B) any issuance of Capital Stock in settlement of outstanding litigation and (C) to employees pursuant to a compensation plan in effect on the Closing Date) or (iii) the Company or any Restricted Subsidiary is required to Offer to purchase Fixed Rate Notes pursuant to Section 4.06 (or would have been required to offer to purchase Fixed Rate Notes if any Fixed Rate Notes were then outstanding), then (A) in the case of clauses (i) and (ii) above, an amount equal to 100% of the Net Cash Proceeds therefrom shall be promptly applied toward the redemption of Increasing Rate Notes, at par plus accrued and unpaid interest to the date of redemption; provided, however, that such Net Cash Proceeds shall be applied pro rata to the prepayment of any outstanding Loans pursuant to the Bridge Loan Agreement and (B) in the case of clause (iii) above, an amount of Net Available Cash determined in accordance with Section 4.06 hereof shall be promptly applied toward the redemption of Increasing Rate Notes, at par plus accrued and unpaid interest to the date of redemption.

(b) The Company may at its option redeem the Securities (other than any Fixed Rate Notes that are then non-callable pursuant to Section 2.02(c)), in whole or in part, at any time, at (i) in the case of Increasing Rate Notes, par plus accrued and unpaid interest to the date of redemption and (ii) in the case of Fixed Rate Notes that are then callable pursuant to Section 2.02(c), at the optional redemption premium then applicable to each such Fixed Rate Note pursuant to Section 2.02(c), plus accrued and unpaid interest to the date of redemption; provided that in the event of an optional redemption pursuant to this Section 3.01(b), the Increasing Rate Notes and callable Fixed Rate Notes shall be redeemed ratably with prepayments of any outstanding Loans in accordance with the terms of the Bridge Loan Agreement.

(c) If the Company shall optionally prepay any Loans pursuant to the terms of the Bridge Loan Agreement, then the Company shall, simultaneously therewith, redeem the Securities (other than any Fixed Rate Notes that are then non-callable pursuant to Section 2.02(c)) on a pro rata basis with the Loans so prepaid, at (i) in the case of Increasing Rate Notes, par plus accrued and unpaid interest to the date of redemption and (ii) in the case of Fixed Rate Notes that are then callable pursuant to Section 2.02(c), the optional redemption premium then applicable to each such Fixed Rate Note pursuant to Section 2.02(c), plus accrued and unpaid interest to the date of redemption.

(d) Notwithstanding Section 2.02(c) (but subject to the provisions of Section 3.01(a)), prior to September 1, 2007, the Company shall be entitled at its option on one or more occasions to redeem Fixed Rate Notes in an aggregate principal amount not to exceed 35% of the aggregate principal amount of the Fixed Rate Notes then outstanding at a redemption price equal to par plus the then applicable coupon with respect to each such Fixed Rate Note, plus accrued and unpaid interest to the redemption date, with the net cash proceeds from one or more Equity Offerings; provided, however, that (1) at least $100,000,000 principal amount of Fixed Rate Notes remains outstanding immediately after the occurrence of each such redemption (other than Securities held, directly or indirectly, by the Company or its Affiliates); and (2) each such redemption occurs within 60 days after the date of the related Equity Offering.

(e) The Company shall give notice to the Trustee of any redemption pursuant to this Article 3 at least 60 days before the redemption date, unless the Trustee consents to a shorter period. Such notice shall be accompanied by an Officers’ Certificate from the Company to the effect that such redemption will comply with the conditions herein, and shall set forth the redemption date, the principal amount of Securities to be redeemed and the paragraph of this Article 3 pursuant to which such redemption is being made.

SECTION 3.02. Selection of Securities to Be Redeemed. If fewer than all the Securities are to be redeemed, the Trustee shall select the Securities to be redeemed pro rata to the extent practicable. The Trustee shall make the selection from outstanding Securities which are then callable and which have not previously been called for redemption. The Trustee may select for redemption portions of the principal of Securities that have denominations larger than $1,000. Securities and portions of them the Trustee selects shall be in principal amounts of $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption. The Trustee shall notify the Company promptly of the Securities or portions of Securities to be redeemed.

SECTION 3.03. Notice of Redemption. At least 30 days but not more than 60 days before a date for redemption of Securities, the Company shall mail a notice of redemption by first-class mail to each Holder of Securities to be redeemed at such Holder’s registered address (and to the Administrative Agent if any Loans are then outstanding).

(4) that Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price;

(5) if fewer than all the outstanding Securities are to be redeemed, the identification and principal amounts of the particular Securities to be redeemed;

(6) that, unless the Company defaults in making such redemption payment, interest on Securities (or portion thereof) called for redemption ceases to accrue on and after the redemption date;

(7) the paragraph of this Article 3 pursuant to which the Securities called for redemption are being redeemed; and

(8) that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Securities.

At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense. In such event, the Company shall provide the Trustee with the information and form of notice required by this Section.

SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption is mailed, Securities called for redemption become due and payable on the redemption date and at the redemption price stated in the notice. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price stated in the notice, plus accrued interest to the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the related Interest Payment Date). Failure to give notice or any defect in the notice to any Holder shall not affect the validity of the notice to any other Holder.

SECTION 3.05. Deposit of Redemption Price. Prior to the redemption date, the Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the redemption price of and accrued interest on all Securities to be redeemed on that date other than Securities or portions of Securities called for redemption which have been delivered by the Company to the Trustee for cancellation.

SECTION 3.06. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Company shall execute and the Trustee shall authenticate for the Holder (at the Company’s expense) a new Security equal in principal amount to the unredeemed portion of the Security surrendered.

SECTION 4.01. Payment of Securities. The Company shall promptly pay the principal of and interest on the Securities on the dates and in the manner provided in the Securities and in this Indenture. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal and interest then due.

The Company shall pay interest on overdue principal at the rate specified therefor in the Securities, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful.

SECTION 4.02. SEC Reports. Whether or not the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC (subject to the next sentence) and provide the Trustee and the Holders with such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such reports to be so filed and provided at the times specified for the filings of such reports under such Sections and containing all the information, audit reports and exhibits required for such reports. If, at any time, the Company is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Company shall nevertheless continue filing the reports specified in the preceding sentence with the SEC within the time periods required unless the SEC will not accept such a filing. The Company agrees that it shall not take any action for the sole purpose of causing the SEC not to accept such filings. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Company shall post the reports specified in the preceding sentence on its website within the time periods that would apply if the Company were required to file those reports with the SEC. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

At any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries, the quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.

In addition, the Company shall furnish to the Holders of the Securities and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as such Securities are not freely transferable under the Securities Act.

SECTION 4.03. Limitation on Indebtedness. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Company and the Subsidiary Guarantors shall be entitled to Incur Indebtedness if, on the date of such Incurrence and after giving effect thereto on a pro forma basis, the Consolidated Leverage Ratio would be less than 3.0 to 1.0.

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

(1) Indebtedness Incurred by the Company or any Subsidiary Guarantor pursuant to the Credit Agreement; provided, however, that, after giving effect to any such Incurrence, the aggregate principal amount of all Indebtedness Incurred under this clause (b)(1) and then outstanding does not exceed $60.0 million less the sum of all principal payments with respect to such Indebtedness pursuant to Section 4.06(a)(3)(B);

(2) Indebtedness owed to and held by the Company or a Restricted Subsidiary; provided, however, that (A) any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such Indebtedness by the obligor thereon,(B) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities and (C) if a Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations of such Subsidiary Guarantor with respect to its Subsidiary Guaranty;

(4) Indebtedness outstanding on the Initial Maturity Date (other than Indebtedness described in clause (1), (2) or (3) of this Section 4.03(b), and subject to Section 4.03(d));

(5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company); provided, however, that on the date of such acquisition and after giving pro forma effect thereto, the Company would have been entitled to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);

(6) Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to Section 4.03(a) or pursuant to clause (3), (4) or (5) of this Section 4.03(b) or this clause (6); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (5), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;

(7) Hedging Obligations consisting of (A) Interest Rate Agreements directly related to Indebtedness permitted to be Incurred by the Company and the Restricted Subsidiaries pursuant to this Indenture and (B) Currency Agreements entered into in the ordinary course of business for the purpose of mitigating the risk to the Company or its Restricted Subsidiaries of currency fluctuations and not for speculative purposes;

(8) Obligations in respect of performance, bid and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business;

(11) Purchase Money Indebtedness Incurred to finance the acquisition by the Company or a Restricted Subsidiary of assets in the ordinary course of business, and Refinancing Indebtedness in respect thereof, in an aggregate principal amount which, when added together with the amount of Indebtedness Incurred pursuant to this clause (11) and then outstanding, does not exceed $10.0 million;

(12) Indebtedness of the Company or a Restricted Subsidiary in respect of bankers’ acceptances and other similar instruments or obligations issued, or relating to obligations incurred, in the ordinary course of business (including those issued to governmental authorities under applicable workers’ compensation statutes); and

(13) Indebtedness of the Company or a Restricted Subsidiary in an aggregate principal amount which, when taken together with all other Indebtedness of the Company and the Restricted Subsidiaries outstanding on the date of such Incurrence and Incurred under this clause (13), does not exceed $10.0 million.

(c) Notwithstanding the foregoing, neither the Company nor any Subsidiary Guarantor shall Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of the Company or a Subsidiary Guarantor unless such Indebtedness shall be subordinated to the Securities or to the applicable Subsidiary Guaranty to at least the same extent as such Subordinated Obligations.

(d) For purposes of determining compliance with this Section 4.03, (1) any Indebtedness outstanding or Incurred under the Credit Agreement on the Initial Maturity Date will be treated (subject to clause (2) of this paragraph) as Incurred under clause (1) of paragraph (b) above, (2) any Indebtedness Incurred pursuant to Section 6.01(b)(11) or Section 6.01(b)(13) of the Bridge Loan Agreement and outstanding on the Initial Maturity Date shall be deemed to have been Incurred on the Initial Maturity Date pursuant to Section 4.03(b)(11) or Section 4.03(b)(13) hereof, respectively, (3) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the types of Indebtedness described above, the Company, in its sole discretion, shall classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and shall only be required to include the amount and type of such Indebtedness in one of the above clauses, (4) the Company shall be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described above and (5) the Company shall be entitled to reclassify any item of Indebtedness (or portion thereof) Incurred pursuant to any of clauses 4.03(b)(2) through (b)(13) above to any other of clauses 4.03(b)(2) through (b)(13) above, provided that such item of Indebtedness could be Incurred under such clause at the time of such reclassification.

SECTION 4.04. Limitation on Restricted Payments. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make a Restricted Payment if at the time the Company or such Restricted Subsidiary makes such Restricted Payment:

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

(2) the Company is not entitled to Incur an additional $1.00 of Indebtedness under Section 4.03(a); or

(3) the aggregate amount of such Restricted Payment and all other Restricted Payments since the Initial Maturity Date would exceed the sum of (without duplication):

(B) 100% of the aggregate Net Cash Proceeds received by the Company from the issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent to the Initial Maturity Date (other than an issuance or sale to a Subsidiary of the Company and other than an issuance or sale to an employee stock ownership plan or to a trust established by the Company or any of its Subsidiaries for the benefit of their employees) and 100% of any cash capital contribution received by the Company from its stockholders subsequent to the Initial Maturity Date; plus

(C) the amount by which Indebtedness of the Company is reduced on the Company’s balance sheet upon the conversion or exchange subsequent to the Initial Maturity Date of any Indebtedness of the Company convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or the fair value of any other property, distributed by the Company upon such conversion or exchange) provided, however, that the foregoing amount shall not exceed the Net Cash Proceeds received by the Company or any Restricted Subsidiary from the sale of such Indebtedness (excluding Net Cash Proceeds from sales to a Subsidiary of the Company or to an employee stock ownership plan or a trust established by the Company or any of its Subsidiaries for the benefit of their employees); plus

(D) an amount equal to the sum of (i) the net reduction in the Investments (other than Permitted Investments) made by the Company or any Restricted Subsidiary in any Person resulting from repurchases, repayments or redemptions of such Investments by such Person, proceeds realized on the sale of such Investments and proceeds representing the return of capital (excluding dividends and distributions), in each case received by the Company or any Restricted Subsidiary and (ii) to the extent such Person is an Unrestricted Subsidiary, the portion (proportionate to the Company’s equity interest in such Subsidiary) of the fair market value of the net assets of such Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary; provided, however, that the foregoing sum shall not exceed, in the case of any such Person or Unrestricted Subsidiary, the amount of Investments (excluding Permitted Investments) previously made (and treated as a Restricted Payment) by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.

(1) any Restricted Payment made out of the Net Cash Proceeds of the substantially concurrent sale of, or made by exchange for, Capital Stock of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the Company or an employee stock ownership plan or to a trust established by the Company or any of its Subsidiaries for the benefit of their employees) or a substantially concurrent cash capital contribution received by the Company from its stockholders; provided, however, that (A) such Restricted Payment shall be excluded in the calculation of the amount of Restricted Payments and (B) the Net Cash Proceeds from such sale or such cash capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of amounts under Section 4.04(a)(3)(B);

(2) any purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Obligations of the Company or a Subsidiary Guarantor made by exchange for, or out of the proceeds of the substantially concurrent Incurrence of, Indebtedness of such Person which is permitted to be Incurred pursuant to Section 4.03; provided, however, that such purchase, repurchase, redemption, defeasance or other acquisition or retirement for value shall be excluded in the calculation of the amount of Restricted Payments;

(3) dividends paid within 60 days after the date of declaration thereof if at such date of declaration such dividend would have complied with this Section 4.04; provided, however, that such dividend shall be included in the calculation of the amount of Restricted Payments;

(4) so long as no Default has occurred and is continuing, the purchase, redemption or other acquisition of shares of Capital Stock of the Company or any of its Subsidiaries (A) from any current or former officer, employee or director of the Company or any of its Subsidiaries (or permitted transferees of such officers, employees or directors) or (B) from any Person for the sole purpose of reselling such shares of Capital Stock to current employees or officers of the Company or any of its Subsidiaries, in the case of each of clauses (A) and (B), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors under which such individuals purchase or sell or are granted the option to purchase or sell, shares of such Capital Stock; provided, however, that the aggregate amount of such purchases, redemptions and other acquisitions (excluding amounts representing cancelation of Indebtedness) shall not exceed $2.5 million in any calendar year plus, solely in respect of clause (B), the amount of payments received (and not previously used for Restricted Payments pursuant to clause (B)) by the Company or any of its Restricted Subsidiaries in respect of such Capital Stock from employees or officers pursuant to the agreement or plan pursuant to which such Capital Stock is resold to such employees and officers on or after July 1, 2004 (which payments, to the extent used for Restricted Payments pursuant to clause (B), shall not constitute Net Cash Proceeds for purposes of Section 4.04(b)(1) and shall be excluded from the calculation of amounts under Section 4.04(a)(3)(B)); provided further, however, that the determination of amounts available for Restricted Payments pursuant to this clause (4) shall give effect to such payments made pursuant to Section 6.02(b)(4) of the Bridge Loan Agreement prior to the Initial Maturity Date as if made pursuant to this clause (4); provided further, however, that such purchases, redemptions and other acquisitions shall be excluded in the calculation of the amount of Restricted Payments;

(5) the declaration and payment of dividends on Disqualified Stock issued pursuant to Section 4.03; provided, however, that, at the time of declaration of such dividend, no Default shall have occurred and be continuing (or result therefrom); provided further, however, that such dividends shall be excluded in the calculation of the amount of Restricted Payments;

(7) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Company; provided, however, that any such cash payment shall not be for the purpose of evading the limitations of this Section 4.04 (as determined in good faith by the Board of Directors); provided further, however, that such payments shall be excluded in the calculation of the amount of Restricted Payments;

(8) in the event of a Change of Control, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or any Subsidiary Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Subordinated Obligations, plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by this Indenture) has made a Change of Control Offer with respect to the Securities as a result of such Change of Control and has repurchased all Securities validly tendered and not withdrawn in connection with such Change of Control Offer; provided further, however, that such repurchase and other acquisitions shall be included in the calculation of the amount of Restricted Payments;

(9) payments of intercompany subordinated Indebtedness, the Incurrence of which was permitted under Section 4.03(b)(2); provided, however, that no Default has occurred and is continuing or would otherwise result therefrom; provided further, however, that such payments shall be excluded in the calculation of the amount of Restricted Payments; or

(10) the declaration and payment of dividends in respect of common stock of the Company consistent with the dividend policy of the Company as in effect on the Closing Date in an aggregate amount of such dividends not to exceed $5.0 million in any calendar year; provided, however, that, with respect to the calendar year in which the Initial Maturity Date occurs, the amount available for dividends pursuant to this clause (10) for such calendar year shall be reduced by the amount of dividends paid pursuant to Section 6.02(b)(10) of the Bridge Loan Agreement in such calendar year and prior to the Initial Maturity Date; provided further, however, that such dividends shall be included in the calculation of the amount of Restricted Payments.

SECTION 4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Subsidiary or pay any Indebtedness owed to the Company, (b) make any loans or advances to the Company or (c) transfer any of its property or assets to the Company, except:

(A) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Initial Maturity Date, including the Credit Agreement as in effect on such date;

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

(C) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in Section 4.05(1)(A) or (B) or this clause (C) or contained in any amendment to an agreement referred to in Section 4.05(1)(A) or (B) or this clause (C); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such refinancing agreement or amendment are no less favorable to the Company than encumbrances and restrictions with respect to such Restricted Subsidiary contained in such predecessor agreements;

(E) any encumbrance or restriction arising by reason of applicable law, rule or regulation; and

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

(B) any encumbrance or restriction (including Permitted Liens) contained in security agreements or mortgages securing Indebtedness (including Capital Lease Obligations) of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages.

(a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Disposition unless (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash or cash equivalents; and (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or such Restricted Subsidiary, as the case may be) (A) first, solely in the event that no Loans or Increasing Rate Notes are then outstanding, to the extent the Company elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the Company or Indebtedness (other than any Disqualified Stock) of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the Company or an Affiliate of the Company) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A), to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and (C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B), to make an Offer to the Holders of Fixed Rate Notes to purchase such Fixed Rate Notes pursuant to and subject to the conditions contained in this Indenture; provided, however, that such Net Available Cash shall be applied on a pro rata basis with such Offer to (x) the redemption of Increasing Rate Notes pursuant to Section 3.01(a)(iii), (y) the prepayment of any outstanding Loans pursuant to the terms of the Bridge Loan Agreement and (z) to the extent required by the terms of the Credit Agreement as in effect on the Closing Date, to the repayment of outstanding borrowings thereunder; provided further, however, that the Net Available Cash available for such Offer, after giving effect to the foregoing proviso, may be offered ratably to Holders of Fixed Rate Notes and holders of other Senior Indebtedness of the Company pursuant to customary asset sale provisions contained in the agreements governing such other Senior Indebtedness. In connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C) above, the Company or such Restricted Subsidiary shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing provisions of this Section 4.06, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this Section 4.06(a) except to the extent that the aggregate Net Available Cash from all Asset Dispositions which is not applied in accordance with this Section 4.06(a) exceeds $5,000,000. Pending application of Net Available Cash pursuant to this Section 4.06(a), such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness.

For the purposes of Section 4.06(a)(2), the following are deemed to be cash or cash equivalents: (i) the assumption or discharge of Indebtedness of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition and (ii) securities received by the Company or any Restricted Subsidiary from the transferee that are converted within 90 days by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion.

(b) In the event of an Asset Disposition that requires the purchase of Fixed Rate Notes (and the repayment of other Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C), the Company shall purchase Fixed Rate Notes tendered pursuant to an offer by the Company for the Fixed Rate Notes (the “Offer”) at a purchase price of 100% of their principal amount, without premium, plus accrued but unpaid interest, in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. If the aggregate purchase price of Fixed Rate Notes tendered exceeds the Net Available Cash allotted to their purchase in accordance with Section 4.06(a)(3)(C), the Company shall select the securities to be purchased on a pro rata basis but in denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make an Offer to purchase Fixed Rate Notes (and repay other Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C) if the Net Available Cash available therefor is less than $5,000,000 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer and repayment are required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an Offer, Net Available Cash shall be deemed to be reduced by (without duplication) the aggregate amount of such Offer and the amount of other Indebtedness repaid or redeemed in connection therewith pursuant to Section 4.06(a)(3)(C).

(c) (1) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to each Holder, a written notice stating that the Holder may elect to have his Fixed Rate Notes purchased by the Company either in whole or in part (subject to prorating as described in Section 4.06(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Company which the Company in good faith believes will enable such Holders to make an informed decision, including a description of material developments in the Company’s business subsequent to the date of the latest of its filed Annual Reports on Form 10-K (except to the extent otherwise publicly disclosed in subsequent filings with the SEC), and if material, appropriate pro forma financial information) and all instructions and materials necessary to tender Securities pursuant to the Offer, together with the information contained in clause (3).

(2) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (A) the amount of the Offer (the “Offer Amount”), including information as to any other Indebtedness to be repaid, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.06(a) and (b). On or prior to the last Business Day prior to the Purchase Date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Fixed Rate Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering Holder in the amount of the purchase price. Amounts of Net Available Cash offered to and rejected by any Holder of Fixed Rate Notes (or other Senior Indebtedness to which such offer was made in accordance with Section 4.06(a)(3)(C)) shall be ratably applied to (i) prepay the Loans, (ii) redeem any Increasing Rate Notes, (iii) purchase any Fixed Rate Notes (and such other Senior Indebtedness) with respect to which the offer to purchase is accepted and (iv) (to the extent required by the terms thereof as they existed as on the Closing Date) repay amounts outstanding under the Credit Agreement.

(3) Holders electing to have a Fixed Rate Note purchased shall be required to surrender the Fixed Rate Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Fixed Rate Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Fixed Rate Note purchased. Holders whose Fixed Rate Notes are purchased only in part shall be issued new Fixed Rate Notes equal in principal amount to the unpurchased portion of the Fixed Rate Notes surrendered.

(4) At the time the Company delivers Fixed Rate Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Fixed Rate Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Fixed Rate Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.

(d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section 4.06. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.06 by virtue of its compliance with such securities laws or regulations.

SECTION 4.07. Limitation on Affiliate Transactions. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) unless (1) the terms thereof are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of the Affiliate Transaction in arm’s-length dealings with a Person who is not an Affiliate; (2) if such Affiliate Transaction involves an amount in excess of $5.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the directors of the Company disinterested with respect to such Affiliate Transaction have determined in good faith that the criteria set forth in clause (1) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors; and (3) if such Affiliate Transaction involves an amount in excess of $10.0 million, the Board of Directors shall also have received a written opinion from an Independent Qualified Party to the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted Subsidiaries or is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a Person who was not an Affiliate.

(b) The provisions of Section 4.07(a) shall not prohibit (1) any Investment (other than a Permitted Investment) or other Restricted Payment, in each case permitted to be made pursuant to (but only to the extent included in the calculation of the amount of Restricted Payments made pursuant to paragraph (a)(3) of) Section 4.04; (2) employment agreements entered into in the ordinary course of business and benefit plans approved by the Board of Directors, and any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (3) loans or advances to employees in the ordinary course of business in accordance with the past practices of the Company or its Restricted Subsidiaries, but in any event not to exceed $3.0 million in the aggregate outstanding at any one time; (4) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Restricted Subsidiaries; (5) customary arrangements for indemnity provided for the benefit of directors, officers or employees of the Company or its Restricted Subsidiaries in the ordinary course of business; (6) any transaction with the Company, a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity; (7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company; and (8) transfers of lease receivables and related assets to Symbolease Funding LLC pursuant to the Bank of Tokyo Securitization consistent with past practice.

SECTION 4.08. Limitation on Line of Business. The Company shall not, and shall not permit any Restricted Subsidiary, to engage in any business other than a Related Business.

SECTION 4.09. Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries. The Company:

(A) immediately after giving effect to such issuance, sale or other disposition, neither the Company nor any of its Subsidiaries own any Capital Stock of such Restricted Subsidiary; or

(B) immediately after giving effect to such issuance, sale or other disposition, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary and any Investment in such Person remaining after giving effect thereto is treated as a new Investment by the Company and such Investment would be permitted to be made under Section 4.04 if made on the date of such issuance, sale or other disposition.

For purposes of this Section 4.09, the creation of a Lien on any Capital Stock of a Restricted Subsidiary to secure Indebtedness of the Company or any of its Restricted Subsidiaries will not be deemed to be a violation of this Section 4.09; provided, however, that any sale or other disposition by the secured party of such Capital Stock following foreclosure of its Lien will be subject to this Section 4.09.

SECTION 4.10. Change of Control. (a) Upon the occurrence of a Change of Control, (i) each Holder of an Increasing Rate Note shall have the right to require that the Company purchase such Holder’s Increasing Rate Notes at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of holders of record on the relevant record date to receive interest on the relevant Interest Payment Date), in accordance with the terms contemplated in Section 4.10(b), and (ii) each Holder of a Fixed Rate Note shall have the right to require that the Company purchase such Holder’s Fixed Rate Notes at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of holders of record on the relevant record date to receive interest on the relevant Interest Payment Date), in accordance with the terms contemplated in Section 4.10(b).

(b) Within 30 days following any Change of Control, the Company shall mail a notice to each Holder with a copy to the Trustee (the “Change of Control Offer”) stating:

(1) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s Securities at the applicable purchase price in cash set forth in clause (a) above (subject to the right of Holders of record on the relevant record date to receive interest on the relevant Interest Payment Date);

(3) the purchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); and

(4) the instructions, as determined by the Company, consistent with this Section, that a Holder must follow in order to have its Securities purchased.

(c) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Security purchased.

(d) On the purchase date, all Securities purchased by the Company under this Section shall be delivered by the Company to the Trustee for cancellation, and the Company shall pay the purchase price plus accrued and unpaid interest, if any, to the Holders entitled thereto.

(e) Notwithstanding the foregoing provisions of this Section, the Company shall not be required to make a Change of Control Offer following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer.

(f) The Company shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Securities pursuant to this Section. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section by virtue of its compliance with such securities laws or regulations.

SECTION 4.11. Limitation on Liens. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, Incur or permit to exist any Lien (the “Initial Lien”) of any nature whatsoever on any of its properties (including Capital Stock of a Restricted Subsidiary), whether owned at the Initial Maturity Date or thereafter acquired, securing any Indebtedness, other than Permitted Liens, without effectively providing that the Securities shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations are so secured.

Any Lien created for the benefit of the Holders of the Securities pursuant to the preceding sentence shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.

SECTION 4.12. Limitation on Sale/Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, enter into any Sale/Leaseback Transaction with respect to any property unless (1) the Company or such Restricted Subsidiary would be entitled to (A) Incur Indebtedness in an amount equal to the Attributable Debt with respect to such Sale/Leaseback Transaction pursuant to Section 4.03 and (B) create a Lien on such property securing such Attributable Debt without equally and ratably securing the Securities pursuant to Section 4.11; (2) the net proceeds received by the Company or any Restricted Subsidiary in connection with such Sale/Leaseback Transaction are at least equal to the fair market value (as determined by the Board of Directors) of such property; and (3) the Company applies the proceeds of such transaction in compliance with Section 4.06.

SECTION 4.13. Future Guarantors. The Company shall cause each domestic Restricted Subsidiary that Guarantees any Indebtedness of the Company or any other Subsidiary (other than Indebtedness permitted to be Incurred pursuant to Section 4.03(b)(2)) to, and each Foreign Subsidiary that enters into a Guarantee of any Senior Indebtedness (other than a Foreign Subsidiary that Guarantees Senior Indebtedness Incurred by another Foreign Subsidiary) to, in each case, at the same time, execute and deliver to the Trustee a Guaranty Agreement pursuant to which such Restricted Subsidiary will Guarantee payment of the Securities on the same terms and conditions as those set forth in Article 10 of this Indenture.

SECTION 4.14. Compliance Certificate. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company an Officers’ Certificate stating that in the course of the performance by the signers of their duties as Officers of the Company they would normally have knowledge of any Default and whether or not the signers know of any Default that occurred during such period. If they do, the certificate shall describe the Default, its status and what action the Company is taking or proposes to take with respect thereto. The Company also shall comply with TIA § 314(a)(4).

SECTION 4.15. Further Instruments and Acts. Upon request of the Trustee, or as necessary, the Company shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.

SECTION 4.16. SAILS Debt. The Company shall not elect to settle the SAILs Debt in cash or terminate the SAILs Debt in a manner that would require any payment of cash by the Company or any Subsidiary in respect of such termination.

SECTION 4.17. Take-Out Financing. For so long as any Increasing Rate Notes remain outstanding, the Company shall comply with the provisions set forth in Section 5.16 of the Bridge Loan Agreement.

(a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:

(1) the resulting, surviving or transferee Person (the “Successor Company”) shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Company) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;

(3) immediately after giving pro forma effect to such transaction, the Successor Company would be able to Incur an additional $1.00 of Indebtedness pursuant to Section 4.03(a);

(4) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture;

provided, however, that clause (3) will not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction.

For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.

The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities.

(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or series of transactions, all or substantially all of its assets to any Person unless: (1) except in the case of a Subsidiary Guarantor (A) that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or (B) that, as a result of the disposition of all or a portion of its Capital Stock (other than to an Affiliate of the Company), ceases to be a Subsidiary, in both cases, if in connection therewith the Company provides an Officers’ Certificate to the Trustee to the effect that the Company will comply with its obligations under Section 4.06 in respect of such disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guaranty Agreement, in a form reasonably satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guaranty; (2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and (3) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guaranty Agreement, if any, comply with this Indenture.

(1) the Company defaults in any payment of interest on any Security when the same becomes due and payable, and such default continues for a period of 30 days;

(2) the Company (A) defaults in the payment of the principal of any Security when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon declaration of acceleration or otherwise, or (B) fails to redeem or purchase Securities when required pursuant to this Indenture or the Securities;

(4) the Company fails to comply with Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.16 or 4.17 (other than a failure to purchase Securities when required under Section 4.06 or 4.10) and such failure continues for 30 days after the notice specified below;

(5) the Company or any Subsidiary Guarantor fails to comply with any of its agreements contained in the Securities or this Indenture (other than those referred to in clause (1), (2), (3) or (4) above) and such failure continues for 60 days after the notice specified below;

(6) Indebtedness of the Company, any Subsidiary Guarantor or any Significant Subsidiary is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds $10.0 million, or its foreign currency equivalent at the time;

(7) a Subsidiary Guarantor, the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:

(B) consents to the entry of an order for relief against it in an involuntary case;

(8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(A) is for relief against a Subsidiary Guarantor, the Company or any Significant Subsidiary in an involuntary case;

(B) appoints a Custodian of a Subsidiary Guarantor, the Company or any Significant Subsidiary or for any substantial part of its property; or

or any similar relief is granted under any foreign laws and the order or decree remains unstayed and in effect for 60 days; or

(9) any judgment or decree for the payment of money in excess of $10.0 million or its foreign currency equivalent at the time is entered against a Subsidiary Guarantor, the Company or any Significant Subsidiary, remains outstanding for a period of 60 consecutive days following the entry of such judgment or decree and is not discharged, waived or the execution thereof stayed; or

(10) any Subsidiary Guaranty ceases to be in full force and effect (other than in accordance with the terms of such Subsidiary Guaranty) or any Subsidiary Guarantor denies or disaffirms its obligations under its Subsidiary Guaranty.

A Default under clause (4) or (5) is not an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the outstanding Securities notify the Company of the Default and the Company does not cure such Default within the time specified after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default”.

The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officers’ Certificate of any Event of Default under clause (6) or (10) and any event which with the giving of notice or the lapse of time would become an Event of Default under clause (4), (5) or (9), its status and what action the Company is taking or proposes to take with respect thereto.

SECTION 6.02. Acceleration. If an Event of Default (other than an Event of Default specified in Section 6.01(7) or (8) with respect to the Company) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in principal amount of the Securities by notice to the Company and the Trustee, may declare the principal of and accrued but unpaid interest on all the Securities to be due and payable. Upon such a declaration, such principal and interest shall be due and payable immediately. If an Event of Default specified in Section 6.01(7) or (8) with respect to the Company occurs, the principal of and interest on all the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholders. The Holders of a majority in principal amount of the Securities by notice to the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of acceleration. No such rescission shall affect any subsequent Default or impair any right consequent thereto.

SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of or interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.

SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in principal amount of the Securities by notice to the Trustee may waive an existing Default and its consequences except (a) a Default in the payment of the principal of or interest on a Security, (b) a Default arising from the failure to redeem or purchase any Security when required pursuant to this Indenture or (c) a Default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Securityholder affected. When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or impair any consequent right.

SECTION 6.05. Control by Majority. The Holders of a majority in principal amount of the Securities may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or, subject to Section 7.01, that the Trustee determines is unduly prejudicial to the rights of other Securityholders or would involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any action under this Section, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.

SECTION 6.06. Limitation on Suits. Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no Securityholder may pursue any remedy with respect to this Indenture or the Securities unless:

(1) the Holder gives to the Trustee written notice stating that an Event of Default is continuing;

(2) the Holders of at least 25% in principal amount of the Securities make a written request to the Trustee to pursue the remedy;

(3) such Holder or Holders offer to the Trustee reasonable security or indemnity satisfactory to it against any loss, liability or expense;

(4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and

(5) the Holders of a majority in principal amount of the Securities do not give the Trustee a direction inconsistent with the request during such 60-day period.

A Securityholder may not use this Indenture to prejudice the rights of another Securityholder or to obtain a preference or priority over another Securityholder. In the event that the Definitive Securities are not issued to any beneficial owner promptly after the Registrar has received a request from the Holder of a Global Security to issue such Definitive Securities to such beneficial owner or its nominee, the Company expressly agrees and acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to this Indenture, the right of such beneficial holder of Securities to pursue such remedy with respect to the portion of the Global Security that represents such beneficial holder’s Securities as if such Definitive Securities had been issued.

SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and interest on the Securities held by such Holder, on or after the respective due dates expressed in the Securities, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 7.07.

SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Securityholders allowed in any judicial proceedings relative to the Company, its creditors or its property and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.07.

Priorities. If the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the following order:

SECOND: to Securityholders for amounts due and unpaid on the Securities for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal and interest, respectively; and

The Trustee may fix a record date and payment date for any payment to Securityholders pursuant to this Section. At least 15 days before such record date, the Company shall mail to each Securityholder and the Trustee a notice that states the record date, the payment date and amount to be paid.

SECTION 6.10. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate principal amount of the Securities.

SECTION 6.11. Waiver of Stay or Extension Laws. The Company (to the extent it may lawfully do so) shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.

SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.

(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of certificates or opinions specifically required by any provision hereof to be furnished to it, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein).

(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own wilful misconduct, except that:

(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05.

(d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.

(e) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.

(f) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

(g) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

(h) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA.

SECTION 7.02. Rights of Trustee. (a) The Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.

(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.

(c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.

(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute wilful misconduct or negligence.

(e) The Trustee may consult with counsel, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Securities shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.

(g) In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

(h) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a responsible officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.

(i) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

(j) The Trustee may request that the Company deliver a certificate in the form of Exhibit E setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or co-paying agent may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.

SECTION 7.04. Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale of the Securities or in the Securities other than the Trustee’s certificate of authentication.

SECTION 7.05. Notice of Defaults. If a Default occurs, is continuing and is known to the Trustee, the Trustee shall mail to each Securityholder notice of the Default within 90 days after it occurs. Except in the case of a Default in the payment of principal of or interest on any Security (including payments pursuant to the mandatory redemption provisions of such Security), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is not opposed to the interests of the Securityholders.

SECTION 7.06. Reports by Trustee to Holders. As promptly as practicable after each September 1 beginning with the September 1 following the Initial Maturity Date, and in any event prior to November 1 in each year, the Trustee shall mail to each Securityholder a brief report dated as of September 1 that complies with TIA § 313(a). The Trustee also shall comply with TIA § 313(b).

A copy of each report at the time of its mailing to Securityholders shall be filed with the SEC and each stock exchange (if any) on which the Securities are listed. The Company agrees to notify promptly the Trustee whenever the Securities become listed on any stock exchange and of any delisting thereof.

SECTION 7.07. Compensation and Indemnity. The Company shall pay to the Trustee from time to time reasonable compensation for its services. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts. The Company and the Subsidiary Guarantors, jointly and severally, shall indemnify the Trustee against any and all loss, liability, claim, damages or expense (including attorneys’ fees) incurred by it in connection with the administration of this trust and the performance of its duties hereunder. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity of which a responsible Officer has received written notice. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee may have separate counsel and the Company shall pay the fees and expenses of such counsel. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own wilful misconduct, negligence or bad faith.

To secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Securities.

The Company’s payment obligations pursuant to this Section shall survive the discharge of this Indenture. When the Trustee incurs expenses after the occurrence of a Default specified in Section 6.01(7) or (8) with respect to the Company, the expenses are intended to constitute expenses of administration under the Bankruptcy Law.

SECTION 7.08. Replacement of Trustee. The Trustee may resign at any time by so notifying the Company. The Holders of a majority in principal amount of the Securities may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee. The Company shall remove the Trustee if:

(3) a receiver or other public officer takes charge of the Trustee or its property; or

If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Securities and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.

A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Securityholders. The retiring Trustee shall, upon payment of its charges hereunder, promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.

If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the Securities may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee.

If the Trustee fails to comply with Section 7.10, any Securityholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.

SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.

In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.

SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy the requirements of TIA § 310(a). The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b); provided, however, that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.

SECTION 7.11. Preferential Collection of Claims Against Company. The Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.

(a) When (1) the Company delivers to the Trustee all outstanding Securities (other than Securities replaced pursuant to Section 2.07) for cancellation or (2) all outstanding Securities have become due and payable, whether at maturity or on a redemption date as a result of the mailing of a notice of redemption pursuant to Article 3 hereof and the Company irrevocably deposits with the Trustee funds sufficient to pay at maturity or upon redemption all outstanding Securities, including interest thereon to maturity or such redemption date (other than Securities replaced pursuant to Section 2.07), and if in either case the Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to Section 8.01(c), cease to be of further effect. The Trustee shall acknowledge satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Company.

(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may terminate (1) all its obligations under the Securities and this Indenture (“legal defeasance option”) or (2) its obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 , 4.11, 4.12, 4.13, 4.16 and 4.17 and the operation of Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of Sections 6.01(7) and (8), with respect only to Significant Subsidiaries and Subsidiary Guarantors) and the limitations contained in Section 5.01(a)(3) (“covenant defeasance option”). The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.

If the Company exercises its legal defeasance option, payment of the Securities may not be accelerated because of an Event of Default with respect thereto. If the Company exercises its covenant defeasance option, payment of the Securities may not be accelerated because of an Event of Default specified in Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of Sections 6.01(7) and (8), with respect only to Significant Subsidiaries and Subsidiary Guarantors) or because of the failure of the Company to comply with Section 5.01(a)(3). If the Company exercises its legal defeasance option or its covenant defeasance option, each Subsidiary Guarantor, if any, shall be released from all its obligations with respect to its Subsidiary Guaranty.

Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.

(c) Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in this Article 8 shall survive until the Securities have been paid in full. Thereafter, the Company’s obligations in Sections 7.07, 8.04 and 8.05 shall survive.

SECTION 8.02. Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option only if:

(1) the Company irrevocably deposits in trust with the Trustee money or U.S. Government Obligations for the payment of principal of and interest on the Securities to maturity or redemption, as the case may be;

(2) the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal and interest when due on all the Securities to maturity or redemption, as the case may be;

(3) 123 days pass after the deposit is made and during the 123-day period no Default specified in Sections 6.01(7) or (8) with respect to the Company occurs which is continuing at the end of the period;

(4) the deposit does not constitute a default under any other agreement binding on the Company;

(5) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940;

(6) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date of this Indenture there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Securityholders will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred;

(7) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Securityholders will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred; and

(8) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Securities as contemplated by this Article 8 have been complied with.

Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance with Article 3.

SECTION 8.03. Application of Trust Money. The Trustee shall hold in trust money or U.S. Government Obligations deposited with it pursuant to this Article 8. It shall apply the deposited money and the money from U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Securities.

SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent shall promptly turn over to the Company upon request any excess money or securities held by them at any time.

Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal or interest that remains unclaimed for two years, and, thereafter, Securityholders entitled to the money must look to the Company for payment as general creditors.

SECTION 8.05. Indemnity for Government Obligations. The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations.

SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with this Article 8 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and each Subsidiary Guarantor’s obligations under this Indenture, each Subsidiary Guaranty and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with this Article 8; provided, however, that, if the Company has made any payment of interest on or principal of any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.

SECTION 9.01. Without Consent of Holders. The Company, the Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities without notice to or consent of any Securityholder:

(3) to provide for uncertificated Securities in addition to or in place of certificated Securities; provided, however, that the uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code or in a manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of the Code;

(4) to add Guarantees with respect to the Securities, including any Subsidiary Guaranties, or to secure the Securities;

(5) to add to the covenants of the Company or any Subsidiary Guarantor for the benefit of the Holders or to surrender any right or power herein conferred upon the Company or any Subsidiary Guarantor;

(6) to comply with any requirements of the SEC in connection with qualifying, or maintaining the qualification of, this Indenture under the TIA;

(7) to make any change that does not adversely affect the rights of any Securityholder; or

(8) to make any amendment to the provisions of this Indenture relating to the transfer and legending of Securities; provided, however, that (a) compliance with this Indenture as so amended would not result in Securities being transferred in violation of the Securities Act or any other applicable securities law and (b) such amendment does not materially and adversely affect the rights of Holders to transfer Securities.

After an amendment under this Section becomes effective, the Company shall mail to Securityholders a notice briefly describing such amendment. The failure to give such notice to all Securityholders, or any defect therein, shall not impair or affect the validity of an amendment under this Section.

SECTION 9.02. With Consent of Holders. The Company, the Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities with the written consent of the Holders of at least a majority in principal amount of the Securities then outstanding (including consents obtained in connection with a tender offer or exchange for the Securities) and any past Default or compliance with any provisions may also be waived with the consent of the Holders of at least a majority in principal amount of the Securities then outstanding. However, without the consent of each Securityholder affected thereby, an amendment or waiver may not:

(2) reduce the rate of or extend the time for payment of interest on any Security;

(4) change the provisions applicable to the redemption of any Security contained in Article 3 hereof;

(6) make any changes in the ranking or priority of any Security that would adversely affect the Securityholders;

(7) make any change in Section 6.04 or 6.07 or the second sentence of this Section; or

(8) make any change in, or release other than in accordance with this Indenture, any Subsidiary Guaranty that would adversely affect the Securityholders.

It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent approves the substance thereof.

SECTION 9.03. Compliance with Trust Indenture Act. Every amendment to this Indenture or the Securities shall comply with the TIA as then in effect.

SECTION 9.04. Revocation and Effect of Consents and Waivers. A consent to an amendment or a waiver by a Holder of a Security shall bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent or waiver is not made on the Security. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Security or portion of the Security if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective. After an amendment or waiver becomes effective, it shall bind every Securityholder. An amendment or waiver becomes effective upon the execution of such amendment or waiver by the Trustee.

The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Securityholders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Securityholders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date.

SECTION 9.05. Notation on or Exchange of Securities. If an amendment changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security regarding the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment.

SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign any amendment authorized pursuant to this Article 9 if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such amendment the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and shall be provided with, and (subject to Section 7.01) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture.

SECTION 9.07. Payment for Consent. Neither the Company nor any Affiliate of the Company shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Securities unless such consideration is offered to all Holders and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in solicitation documents relating to such consent, waiver or agreement.

SECTION 10.01. Guaranties. Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under this Indenture and the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Obligation.

Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (1) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person (including any Subsidiary Guarantor) under this Indenture, the Securities or any other agreement or otherwise; (2) any extension or renewal of any thereof; (3) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (4) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the failure of any Holder or the Trustee to exercise any right or remedy against any other Guarantor of the Guaranteed Obligations; or (6) except as set forth in Section 10.06, any change in the ownership of such Subsidiary Guarantor.

Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.

Except as expressly set forth in Sections 8.01(b), 10.02 and 10.06, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Subsidiary Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law or equity.

Each Subsidiary Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.

In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay the principal of or interest on any Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of such Guaranteed Obligations, (B) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (C) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.

Each Subsidiary Guarantor agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (ii) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section.

Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section.

SECTION 10.02. Limitation on Liability. Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Obligations Guaranteed hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby Guaranteed without rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.

SECTION 10.03. Successors and Assigns. This Article 10 shall be, subject to Section 10.06, binding upon each Subsidiary Guarantor and its successors and assigns and shall enure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Securities shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.

SECTION 10.04. No Waiver. Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article 10 shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article 10 at law, in equity, by statute or otherwise.

SECTION 10.05. Modification. No modification, amendment or waiver of any provision of this Article 10, nor the consent to any departure by any Subsidiary Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor to any other or further notice or demand in the same, similar or other circumstances.

SECTION 10.06. Release of Subsidiary Guarantor. A Subsidiary Guarantor will be released from its obligations under this Article 10 (other than any obligation that may have arisen under Section 10.07):

(1) upon the sale (including any sale pursuant to any exercise of remedies by a holder of Senior Indebtedness of the Company or of such Subsidiary Guarantor) or other disposition (including by way of consolidation or merger) of a Subsidiary Guarantor;

(2) upon the sale or disposition of all or substantially all the assets of such Subsidiary Guarantor;

(3) upon the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the terms of this Indenture;

(4) at such time as such Subsidiary Guarantor does not have any Indebtedness outstanding that would have required such Subsidiary Guarantor to enter into a Guaranty Agreement pursuant to Section 4.13 and the Company provides an Officers’ Certificate to the Trustee certifying that no such Indebtedness is outstanding and that the Company elects to have such Subsidiary Guarantor released from this Article 10;

(6) upon the full satisfaction of the Company’s obligations under this Indenture;

provided, however, that in the case of clauses (1) and (2) above, (i) such sale or other disposition is made to a Person other than the Company or an Affiliate of the Company, (ii) such sale or disposition is otherwise permitted by this Indenture and (iii) the Company provides an Officers’ Certificate to the Trustee to the effect that the Company will comply with its obligations under Section 4.06.

At the request of the Company, the Trustee shall execute and deliver an appropriate instrument evidencing such release.

SECTION 10.07. Contribution. Each Subsidiary Guarantor that makes a payment under its Subsidiary Guaranty shall be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.

SECTION 11.01. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control.

SECTION 11.02. Notices. Any notice or communication shall be in writing and delivered in person or mailed by first-class mail addressed as follows:

The Company, any Subsidiary Guarantor or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.

Any notice or communication mailed to a Securityholder shall be mailed to the Securityholder at the Securityholder’s address as it appears on the registration books of the Registrar and shall be sufficiently given if so mailed within the time prescribed.

Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

SECTION 11.03. Communication by Holders with Other Holders. Securityholders may communicate pursuant to TIA § 312(b) with other Securityholders with respect to their rights under this Indenture or the Securities. The Company, any Subsidiary Guarantor, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).

SECTION 11.04. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take or refrain from taking any action under this Indenture, the Company shall furnish to the Trustee:

(1) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and

(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.

SECTION 11.05. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture shall include:

(1) a statement that the individual making such certificate or opinion has read such covenant or condition;

(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(3) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(4) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.

SECTION 11.06. When Securities Disregarded. In determining whether the Holders of the required principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Company or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded. Also, subject to the foregoing, only Securities outstanding at the time shall be considered in any such determination.

SECTION 11.07. Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by or a meeting of Securityholders. The Registrar and the Paying Agent may make reasonable rules for their functions.

SECTION 11.08. Legal Holidays. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.

SECTION 11.09. Governing Law. This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 11.10. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company or any Subsidiary Guarantor shall not have any liability for any obligations of the Company under the Securities or this Indenture or of such Subsidiary Guarantor under its Subsidiary Guaranty or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Securityholder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Securities.

SECTION 11.11. Successors. All agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.

SECTION 11.12. Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture.

SECTION 11.13. Table of Contents; Headings. The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.

IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.


TELXON CORPORATION,
By
/s/ Cary Schmiedel
Name: Cary Schmeidel
Title: Vice President


@POS.COM, Inc.,
By
/s/		Mark T. Greenquist
Name: Mark T. Greenquist
Title: Chief Executive Officer


MATRICS, INC.,
By
/s/ Mark T. Greenquist
Name: Mark T. Greenquist
Title: President


THE BANK OF NEW YORK, } By } /s/ Ming Ryan Name: Ming Ryan Title: THE BANK OF NEW YORK,
By
		/s/ Ming Ryan
		Name: Ming Ryan
		Title:

EXHIBIT 2.1

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

among

SYMBOL TECHNOLOGIES, INC.,

MARVIN ACQUISITION CORP.

and

MATRICS, INC.

Dated as of July 26, 2004

TABLE OF CONTENTS

Page

EXHIBITS


Exhibit A – Exhibit B – Exhibit C – Exhibit D –		Certificate of Incorporation of the Surviving Corporation Escrow Agreement Interim Financing Note Sales Forecasts

AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER, dated as of July 26, 2004 (the “Agreement”), among SYMBOL TECHNOLOGIES, INC., a Delaware corporation (“Parent”), MARVIN ACQUISITION CORP., a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), MATRICS, INC., a Delaware corporation (the “Company”), and, as to Article IX and Section 10.2 of the Agreement only, Mark Ein, as the Shareholder Representative (the “Shareholder Representative”).

WHEREAS, the Boards of Directors of Sub and the Company have declared this Agreement to be advisable, and the Boards of Directors of Sub and the Company have each approved the merger of Sub with and into the Company and the Company becoming a wholly owned direct subsidiary of Parent (the “Merger”) in accordance with the General Corporation Law of the State of Delaware (“DGCL”) upon the terms and subject to the conditions set forth herein;

WHEREAS, contemporaneously with the execution and delivery of this Agreement, the Company has received irrevocable written consents (the “Written Consents”) from the Principal Stockholders, who in the aggregate hold a majority of the voting power represented by all of the outstanding shares of the Company’s capital stock, pursuant to which the Principal Stockholders have (i) adopted this Agreement, (ii) approved of the transactions contemplated hereby and (iii) appointed the Shareholder Representative in accordance with Section 10.2 hereof; and

WHEREAS, as an essential inducement for Parent and Sub to enter into the Agreement, certain employees of the Company have entered into amendments to their existing nondisclosure agreements with the Company, each of which contains a noncompetition provision;

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Parent, Sub and the Company hereby agree as follows:

ARTICLE I.

DEFINITIONS

SECTION 1.1 Certain Definitions. For purposes of this Agreement, the term:

“Acquisition Proposal” shall have the meaning ascribed to such term in Section 6.3.

“Affiliate” shall have the meaning under Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

“Agreement” shall mean this Agreement and Plan of Merger, and all Schedules and Exhibits hereto, as amended, modified or supplemented, from time to time in accordance with the terms hereof.

“Applicable Escrow Remainder” shall mean, with respect to any Shareholder, the percentage of the Escrowed Funds remaining in the Escrow Account, if any, that such Shareholder shall be entitled to receive from the Shareholder Representative pursuant to the Escrow Agreement upon termination of the Escrow Agreement.

“Balance Sheet” shall mean the unaudited balance sheet of the Company as of the Balance Sheet Date.

“Balance Sheet Date” shall mean April 30, 2004.

“beneficial owner” with respect to any shares of Company Stock means a person who shall be deemed to be the beneficial owner of such shares of Company Stock (i) which such person or any of its affiliates or associates beneficially owns, directly or indirectly, (ii) which such person or any of its affiliates or associates (as such term is defined in Rule 12b-2 of the Exchange Act) has, directly or indirectly, (A) the right to acquire (whether such right is exercisable immediately or subject only to the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (B) the right to vote pursuant to any agreement, arrangement or understanding, or (iii) which are beneficially owned, directly or indirectly, by any other persons with whom such person or any of its affiliates or person with whom such person or any of its affiliates or associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares.

“By-laws” shall have the meaning ascribed to such term in Section 3.2.

“CERCLA” shall have the meaning ascribed to such term in the definition of “Environmental Laws.”

“Certificate of Incorporation” shall have the meaning ascribed to such term in Section 3.2.

“Certificate of Merger” shall have the meaning ascribed to such term in Section 2.2.

“CFCs” shall have the meaning ascribed to such term in the definition of “Hazardous Materials.”

“Closing” shall have the meaning ascribed to such term in Section 2.12.

“Closing Date” shall have the meaning ascribed to such term in Section 2.12.

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

“Common Stock” shall have the meaning ascribed to such term in Section 2.8(a).

“Company” shall have the meaning ascribed to such term in the recitals to this Agreement.

“Company Audited Financial Statements” shall have the meaning ascribed to such term in Section 6.9(b).

“Company Disclosure Schedule” shall mean the disclosure letter supplied by Company to Parent, dated as of the date hereof, which disclosure shall provide an exception to or otherwise qualify the representations, warranties or covenants or other agreements of the Company contained in the section of this Agreement corresponding by number to such disclosure.

“Company Financial Statements” shall have the meaning ascribed to such term in Section 6.9(b).

“Company Material Adverse Effect” shall mean any change, event or effect that is or would be materially adverse to (i) the business, assets (including intangible assets), liabilities (including contingent liabilities), condition (financial or otherwise) or results of operations of the Company, but shall not include any change, event or effect attributable to (a) conditions affecting the EPC RFID industry as a whole, (b) the United States economy, (c) the United States securities or financial or capital markets or (d) the execution and announcement of this Agreement and the transactions contemplated hereby so long as in the case of each of (a), (b) and (c) the impact on the Company is not materially disproportionate to the effect on similarly situated Persons or (ii) the ability of the Company to perform its obligations hereunder.

“Company Officer’s Certificate” shall have the meaning ascribed to such term in Section 7.3(a).

“Company Option” shall mean have the meaning ascribed to such term in Section 2.9(a).

“Company Owned Intellectual Property” shall mean all of the Intellectual Property owned by, under obligation or assignment to, or filed in the name of, the Company.

“Company Registered Intellectual Property” shall have the meaning ascribed to such term in Section 3.18(a).

“Company Stock” shall have the meaning ascribed to such term in Section 2.8(a).

“Company Stock Certificates” shall have the meaning ascribed to such term in Section 2.10.

“Company Unaudited Financial Statements” shall have the meaning ascribed to such term in Section 6.9(b).

“Confidentiality Agreement” shall have the meaning ascribed to such term in Section 6.1(b).

“Contingent Shares” shall have the meaning ascribed to such term in Section 2.6.

“Contracts” shall have the meaning ascribed to such term in Section 3.16.

“Control” (including the terms “controlled by” and “under common control with”) shall have the meaning under Rule 12b-2 promulgated under the Exchange Act.

“Damages” shall include any loss, damage, injury, liability, claim, demand, settlement, judgment, award, fine, penalty, fee (including reasonable attorneys’ fees), royalty, license, concession, charge, cost or reasonable out-of-pocket cost or expense of any nature (including costs of investigation), in each case, net of (i) any Tax benefit actually realized with respect to such amounts in the taxable year in which such amounts were incurred or in the reasonable discretion of the Purchaser, the reasonable value of any Tax benefits realized thereafter, and (ii) any cash insurance proceeds actually received by the Indemnitees, which proceeds actually received will be reimbursed by the Indemnitees by delivery of such proceeds to the Shareholder Representative (after deducting reasonable costs and expenses incurred in connection with recovery of such proceeds, including premium increases) for distribution to the Shareholders; provided that Damages shall not include exemplary, punitive, special, indirect, consequential, remote, or speculative damages (including, without limitation, any damages on account of lost profits or opportunities).

“Deposit Amount” shall have the meaning ascribed to such term in Section 2.6.

“DGCL” shall have the meaning ascribed to such term in the recitals to this Agreement.

“Dissenting Shares” shall have the meaning ascribed to such term in Section 2.8(d).

“Effective Time” shall have the meaning ascribed to such term in Section 2.2.

“Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation relating to pollution or the preservation and protection of human health and the environment, including the manufacture, processing, distribution, use, treatment, storage, transport, handling, Release or threatened Release of, or exposure to, Hazardous Materials. Without limitation, the term “Environmental Laws” includes the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq. (“CERCLA”), the Resource Conservation and Recovery Act, 42 U.S.C. 6901, et seq. (“RCRA”), the Toxic Substances Control Act, 15 U.S.C. 2601, et seq. (“TSCA”), the Occupational, Safety and Health Act, 29 U.S.C. 651, et seq., the Clean Air Act, 42 U.S.C. 7401, et seq., the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., the Safe Drinking Water Act, 42 U.S.C. 300f, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. 1802, et seq. (“HMTA”) and the Emergency Planning and Community Right to Know Act, 42 U.S.C. 11001, et seq. (“EPCRA”), and other comparable state and local laws and all rules and regulations promulgated pursuant thereto or published thereunder.

“EPCRA” shall have the meaning ascribed to such term in the definition of “Environmental Laws.”

“ERISA” shall have the meaning ascribed to such term in Section 3.10(a).

“Escrow Account” shall have the meaning ascribed to such term in Section 2.6.

“Escrow Agent” shall have the meaning ascribed to such term in Section 2.6(a).

“Escrow Agreement” shall have the meaning ascribed to such term in Section 2.7.

“Escrowed Funds” shall mean the Deposit Amount and the Indemnifification Escrow Amount, together with any interest or other income earned thereon, net of any expenses and costs associated therewith.

“Exchange Act” shall have the meaning ascribed to such term in the definition of “Affiliate.”

“Fee Real Property” shall have the meaning ascribed to such term in Section 3.27(a).

“Financial Statements” shall have the meaning ascribed to such term in Section 3.7.

“Financing Commitment Letter” shall have the meaning ascribed to such term in Section 4.5.

“generally accepted accounting principles” or “GAAP” means the generally accepted accounting principles and practices in the United States.

“Governmental Body” shall mean any: (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign or other government; or (c) governmental authority of any nature (including any governmental division, department, agency, commission, instrumentality, official, organization, unit, body and any court or other tribunal).

“Hazardous Materials” shall mean each and every element, compound, chemical mixture, material, waste or other substance which is defined, determined or identified as hazardous or toxic under Environmental Laws or the generation, use, handling or Release of which is regulated under Environmental Laws. Without limiting the generality of the foregoing, the term includes: “hazardous substances” as defined in CERCLA; “extremely hazardous substances” as defined in EPCRA; “hazardous waste” as defined in RCRA; “hazardous materials” as defined in HMTA; “chemical substance or mixture” as defined in TSCA; crude oil, petroleum products or any fraction thereof; radioactive materials including source, byproduct or special nuclear materials; polychlorinated byphenyls, asbestos or asbestos-containing materials; urea formaldehyde, mold, chlorinated fluorocarbons (“CFCs”); and radon.

“HMTA” shall have the meaning ascribed to such term in the definition of “Environmental Laws.”

“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“Indebtedness” of any Person shall mean, without duplication, (a) all indebtedness for borrowed money or issued in exchange or substitution for borrowed money (including amounts drawn against overdraft lines of credit), (b) all liabilities of such Person evidenced by any note, bond, debenture or other debt security, (c) all liabilities of such Person for the deferred purchase price of property with respect to which such Person is liable, contingently or otherwise, (d) all liabilities under capitalized or synthetic leases with respect to which such person is liable, contingently or otherwise, as obligor, guarantor or otherwise, or with respect to which obligations another Person ensures a creditor against loss, and (e) all liabilities described in clauses (a) through (d) that are guaranteed in any manner by such Person (including guarantees in the form of an agreement to repurchase or reimburse) and any fees, penalties or accrued and unpaid interest on the foregoing, including any pre-payment penalties and costs associated with pre-payment.

“Indemnification Escrow Amount” shall have the meaning ascribed to such term in Section 2.6.

“Indemnitees” shall mean the following persons: (a) Parent; (b) Parent’s current and future affiliates (including the Surviving Corporation); (c) the respective representatives of the persons referred to in clauses (a) and (b) above; and (d) the respective successors and assigns of the persons referred to in clauses (a), (b) and (c) above; provided, however, that no holders of Company Stock shall be deemed to be “Indemnitees.”

“Indemnitors” shall have the meaning ascribed to such term in Section 9.2(a).

“Indemnity Deductible” shall have the meaning ascribed to such term in Section 9.2(b).

“Intellectual Property” shall mean all U.S. and foreign intellectual property, including without limitation (i) all patents, patent applications, together with all provisionals, reissues, continuations, continuations-in-part, divisions, revisions, extensions, and reexaminations thereof, (ii) all trademarks, service marks, trade dress, logos, brand names, trade names, domain names and corporate names, together with all derivations and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (iii) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (iv) all mask works and all applications, registrations, and renewals in connection therewith, and (v) all trade secrets and confidential business information (including confidential ideas, research and development, know-how, unpatented inventions, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, research records, records of inventions, test information, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals).

“Interim Financing Note” shall have the meaning ascribed to such term in Section 6.12.

“IP Contested Matters” shall have the meaning ascribed to such term in Section 6.14.

“IP Licenses” shall have the mean all licenses, sublicenses, agreements, and permissions (as amended to date) pursuant to which the Company has the right to use the Intellectual Property of any third party.

“Knowledge” shall mean, with respect to the Company, the actual knowledge of Piyush Sodha, Larry Blue, Rick Mora and Mohammad Solemani, and with respect to Parent, the actual knowledge of Mark Greenquist, John Bruno, Todd Hewlin and Peter Lieb.

“Leased Real Property” shall have the meaning ascribed to such term in Section 3.27(b).

“Legal Proceeding” shall mean any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Body or any arbitrator or arbitration panel.

“Merger” shall have the meaning ascribed to such term in the recitals of this Agreement.

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

“Parent Material Adverse Effect” shall mean any change, event or effect that is or would be materially adverse to (i) the business, assets (including intangible assets), liabilities (including contingent liabilities), condition (financial or otherwise) or results of operations of Parent, but shall not include any change, event or effect attributable to (a) conditions affecting the industries in which Parent participates, (b) the United States economy, (c) the United States securities or financial or capital markets or (d) the execution and announcement of this Agreement and the transactions contemplated hereby so long as in the case of each of (a), (b) and (c) the impact on Parent is not materially disproportionate to the effect on similarly situated Persons or (ii) the ability of Parent to perform its obligations hereunder.

“Parent Officer’s Certificate” shall have the meaning ascribed to such term in Section 7.2(a).

“Payment Schedule” shall have the meaning ascribed to such term in Section 6.8.

“Permitted Encumbrances” shall mean, with respect to the Company, (a) liens for Taxes not yet due and payable and Taxes that are being contested in good faith, (b) statutory liens of landlords, liens of carriers, warehouse persons, mechanics and material persons and other liens imposed by law incurred in the ordinary course of business for sums (i) not yet due and payable or (ii) being contested in good faith, (c) liens incurred or deposits made in connection with workers’ compensation, unemployment insurance and other types of social security programs or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations, in each case in the ordinary course of business consistent with past practice, (d) purchase money liens incurred in the ordinary course of business consistent with past practice and (e) easements, rights-of-way, restrictions and other similar charges or encumbrances imposed on real property, in each case, which do not interfere with the ordinary conduct of business of the Company and do not materially detract from the value of the property upon which such encumbrance exists.

“Person” means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or group (as defined in Section 13(d)(3) of the Exchange Act).

“Plans” shall have the meaning ascribed to such term in Section 3.10(a).

“Present Value” shall have the meaning ascribed to such term in Section 6.14.

“Principal Stockholders” shall mean Novak Biddle Venture Partners; Carlyle Venture Partners II, L.P.; Polaris Venture Partners III L.P.; Venturehouse Group; William Bandy, Michael Arneson and Piyush Sodha.

“Property” shall mean all property owned and/or leased by the Company.

“Public Documents” shall have the meaning ascribed to such term in Section 4.7.

“Purchase Price” shall have the meaning ascribed to such term in Section 2.6.

“PWC” shall have the meaning ascribed to such term in Section 6.9.

“RCRA” shall have the meaning ascribed to such term in the definition of “Environmental Laws.”

“Real Property” shall have the meaning ascribed to such term in Section 3.27(b).

“Release” shall mean and include any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, dumping or disposing into the environment or the workplace of any Hazardous Materials, and otherwise as defined in any Environment Law.

“Representatives” shall have the meaning ascribed to such term in Section 6.3.

“SEC” shall have the meaning ascribed to such term in Section 4.7.

“Securities Act” shall have the meaning ascribed to such term in Section 4.7.

“Series D Documents” shall have the meaning ascribed to such term in the Escrow Agreement.

“Share” shall mean one share of Company Stock issued and outstanding immediately prior to the Effective Time.

“Shareholder” shall mean an owner of shares of Company Stock issued and outstanding immediately prior to the Effective Time.

“Shareholder Representative” shall mean Mark Ein.

“SoleNet” shall have the meaning ascribed to such term in Section 3.10(f).

“SoleNet Employees” shall have the meaning ascribed to such term in Section 7.3(f).

“Stock Plans” shall have the meaning ascribed to such term in Section 2.9(b).

“Stock Rights” shall have the meaning ascribed to such term in Section 2.9(b)

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

“Subsidiary” or “subsidiaries” of the Company, the Surviving Corporation, Parent or any other person means any corporation, partnership, joint venture or other legal entity of which the Company, the Surviving Corporation, Parent or such other person, as the case may be (either alone or through or together with any other subsidiary), owns, directly or indirectly, 50% or more of the stock or other voting or economic equity interests.

“Surviving Corporation” shall have the meaning ascribed to such term in Section 2.1.

“Taxes” shall mean (i) all federal, state, local or foreign income, business, gross receipts, windfall or excess profits, severance, property, production, sales, use, license, excise, franchise, employment, withholding, , customs duty, capital stock, stamp, transfer or recording, payroll, unemployment, disability, excise, production, value added, occupancy or other taxes, or similar governmental charge imposed by any taxing authority of any kind whatsoever, whether computed on a separate, consolidated, unitary, combined or any other basis, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties and (ii) any liability for amounts described in clause (i) under Treasury Regulation Section 1.1502-6, as a result of transferee liability, as a result of being a member of an affiliated, combined, consolidated or unitary group or as a result of any agreement, implied or express, to indemnify any Person for amounts described in clause (i).

“Tax Returns” shall mean all federal, state, local or foreign tax returns, tax reports, information statements and declarations of estimated tax required to be filed by or on behalf of the Company.

“Termination Date” shall have the meaning ascribed to such term in Section 9.1(a).

“Transaction Documents” means all agreements, documents and instruments required to be executed by Parent, Sub or the Company in accordance with the provisions of this Agreement.

“TSCA” shall have the meaning ascribed to such term in the definition of “Environmental Laws.”

“Written Consents” shall have the meaning ascribed to such term in the recitals of this Agreement.

ARTICLE II.

THE MERGER

SECTION 2.1 The Merger. Upon the terms and subject to the conditions of this Agreement and in accordance with the DGCL, at the Effective Time (as defined in Section 2.2), Sub shall be merged with and into the Company. As a result of the Merger, the separate existence of Sub shall cease and the Company shall continue as the surviving corporation of the Merger (the “Surviving Corporation”).

SECTION 2.2 Effective Time. As soon as practicable after the satisfaction or waiver of the conditions set forth in Article VII, the parties hereto shall cause the Merger to be consummated by filing a certificate of merger (the “Certificate of Merger”) with the Secretary of State of the State of Delaware, in such form as required by and executed in accordance with the relevant provisions of the DGCL (the date and time of the filing of the Certificate of Merger with the Secretary of State of the State of Delaware (or such later time as is specified in the Certificate of Merger and agreed upon by the parties hereto) being the “Effective Time”).

SECTION 2.3 Effects of the Merger. The Merger shall have the effects as set forth herein and in the applicable provisions of the DGCL. Without limiting the generality of the foregoing and subject thereto, at the Effective Time all the property, rights, privileges, immunities, powers and franchises of the Company and Sub shall vest in the Surviving Corporation, and all debts, obligations, liabilities and duties of the Company and Sub shall become the debts, liabilities and duties of the Surviving Corporation.

SECTION 2.4 Certificate of Incorporation; By-Laws(a) . (a) At the Effective Time and without any further action on the part of the Company and Sub, the Certificate of Incorporation of the Surviving Corporation shall be as set forth on Exhibit A hereto until thereafter and further amended as provided therein and under the DGCL; provided that the name set forth in the Certificate of Incorporation shall be Matrics, Inc.

(b) At the Effective Time and without any further action on the part of the Company and Sub, the By-Laws of Sub shall be the By-Laws of the Surviving Corporation and thereafter may be amended or repealed in accordance with their terms or the Certificate of Incorporation of the Surviving Corporation and as provided by law.

SECTION 2.5 Directors and Officers. The directors of Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and By-Laws of the Surviving Corporation. The officers of Sub immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, in each case until their respective successors are duly elected or appointed (as the case may be) and qualified.

SECTION 2.6 Purchase Price (a) . (a) The consideration for the Merger, subject to the provisions herein, shall be Two-Hundred-Thirty-Million Dollars ($230,000,000) (the “Purchase Price”).

(b) Upon the execution of this Agreement, (i) Parent shall deposit into an account (the “Escrow Account”) with JPMorganChase, or such similar financial services company as Parent and the Shareholder Representative may mutually agree, as Escrow Agent (the “Escrow Agent”), pursuant to the Escrow Agreement, $15,000,000 (the “Deposit Amount”), and (ii) the Company shall deposit with the Escrow Agent pursuant to the Escrow Agreement, the Series D Documents, including an unsigned stock certificate evidencing 2,691,355 shares of the Company’s Series D Preferred Stock (the “Contingent Shares”).

(i) the Deposit Amount shall be released from the Escrow Account in accordance with the terms and conditions of the Escrow Agreement and returned to Parent;

(ii) the Series D Documents, including the Contingent Shares, shall be released from the Escrow Account in accordance with the terms and conditions of the Escrow Agreement and returned to the Company;

(iii) following receipt of the Deposit Amount from the Escrow Agent, Parent shall deposit with the Escrow Agent $16 million (the “Indemnification Escrow Amount”) of the Purchase Price in cash to be held in accordance with the terms and conditions of the Escrow Agreement; and

(iv) the outstanding principal plus accrued and unpaid interest on the Interim Financing Note (the “Note Outstanding Balance”) shall be deducted from the Purchase Price; provided that (i) if a termination right pursuant to Section 8.1(f) has arisen, this Agreement is not terminated and the Merger is thereafter consummated, then the Note Outstanding Balance shall not be deducted from the Purchase Price and (ii) in the event either (A) a termination right pursuant to Section 8.1(g) has arisen or (B) the Merger is not consummated within five business days after the condition with respect to the HSR Act set forth in Section 7.1(c) shall have been satisfied, but, in either case this Agreement is not terminated and the Merger is thereafter consummated, then only fifty percent (50%) of the Note Outstanding Balance shall be deducted from the Purchase Price.

(d) In the event this Agreement is terminated pursuant to Section 8.1(a), (b), (c), (d), (e) or (h):

(i) the Deposit Amount shall be released from the Escrow Account in accordance with the terms and conditions of the Escrow Agreement and returned to Parent;

(iii) the Note Outstanding Balance shall be repaid in full in cash to Parent within ninety (90) days of such termination.

(e) In the event this Agreement is terminated pursuant to Section 8.1(f):

(i) the Deposit Amount shall be released from the Escrow Account in accordance with the terms and conditions of the Escrow Agreement and delivered to the Company; and

(ii) the Series D Documents, including the Contingent Shares, shall be released from the Escrow Account in accordance with the terms and conditions of the Escrow Agreement and delivered to Parent; and

(iii) the Note Outstanding Balance shall be repaid in full in cash to Parent within ninety (90) days of such termination.

(f) In the event this Agreement is terminated pursuant to Section 8.1(g):

(i) the Deposit Amount shall be either:

(A) released from the Escrow Account in accordance with the terms and conditions of the Escrow Agreement and returned to Parent if Parent does not notify the Company within 5 days of such termination that Parent will acquire the Contingent Shares in consideration for the Deposit Amount; or

(B) released from the Escrow Account in accordance with the terms and conditions of the Escrow Agreement and delivered to the Company if Parent notifies the Company within 5 days of such termination that Parent will acquire the Contingent Shares in consideration for the Deposit Amount; and

(ii) the Series D Documents, including the Contingent Shares, shall be either:

(A) released from the Escrow Account in accordance with the terms and conditions of the Escrow Agreement and returned to the Company if Parent does not notify the Company within 5 days of such termination that Parent will acquire the Contingent Shares in consideration for the Deposit Amount; or

(B) released from the Escrow Account in accordance with the terms and conditions of the Escrow Agreement and delivered to the Parent if Parent notifies the Company within 5 days of such termination that Parent will acquire the Contingent Shares in consideration for the Deposit Amount; and

(iii) the Note Outstanding Balance shall be repaid in full in cash to Parent within ninety (90) days of such termination.

SECTION 2.7 Escrow. The Indemnification Escrow Amount, together with any interest or other income earned thereon, net of any expenses and costs associated therewith shall be applied for the payment of any indemnification obligations of the Indemnitors (as defined herein) pursuant to this Agreement and otherwise administered pursuant to the Escrow Agreement of even date herewith by and among the Company, the Shareholder Representative, Parent and the Escrow Agent, attached hereto as Exhibit B (the “Escrow Agreement”). The parties hereby acknowledge and agree that the Escrowed Funds shall be treated as an installment obligation for purposes of Section 453 of the Internal Revenue Code of 1986, as amended, and no party shall take any action or filing position inconsistent with such characterization. For tax purposes, the Escrowed Funds and all earnings thereon shall be considered owned by Parent until distributed pursuant to the terms of this Agreement and the Escrow Agreement and reported as such for all tax reporting purposes, provided that that the Escrow Agent shall disburse to Parent out of the Indemnification Escrow Amount at such times as reasonably requested by Parent but in no event later than the Termination Date (as defined in the Escrow Agreement), an amount sufficient to pay taxes on such earnings (as reasonably determined by Parent and the Shareholder Representative), but in no event less than an amount equal to the product of 40% and the total amount of such earnings. The parties also agree, for all federal, state and local tax purposes, to treat all payments from the Indemnification Escrow Amount to the Indemnitees as an adjustment to, and reduction of, the Purchase Price paid in the Merger.

SECTION 2.8 Conversion of Securities. At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Sub, the Company or the holders of any of the following securities:

(a) Conversion of the Company Stock. Subject to and in accordance with Sections 2.6 and 2.10 hereof, (i) each share of the Company’s common stock, $0.001 par value per share (the “Common Stock”), issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares (as hereinafter defined) or any shares of Common Stock to be cancelled pursuant to Section 2.8(b)) shall be cancelled and extinguished and be converted into the right, upon the surrender of the certificate representing such Common Stock, to receive the per share amount set forth on the Payment Schedule without any interest thereon, plus the Applicable Escrow Remainder, if any, upon termination of the Escrow Agreement; (ii) each share of the Company’s Series A Preferred Stock, $0.001 par value per share (the “Series A Preferred Stock”), issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares (as hereinafter defined) or any shares of Series A Preferred Stock to be cancelled pursuant to Section 2.8(b)) shall be cancelled and extinguished and be converted into the right, upon the surrender of the certificate representing such Series A Preferred Stock, to receive the per share amount set forth on the Payment Schedule without any interest thereon, plus the Applicable Escrow Remainder, if any, upon termination of the Escrow Agreement; (iii) each share of the Company’s Series B Preferred Stock, $0.001 par value per share (the “Series B Preferred Stock”), issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares (as hereinafter defined) or any shares of Series B Preferred Stock to be cancelled pursuant to Section 2.8(b)) shall be cancelled and extinguished and be converted into the right, upon the surrender of the certificate representing such Series B Preferred Stock, to receive the per share amount set forth on the Payment Schedule without any interest thereon, plus the Applicable Escrow Remainder, if any, upon termination of the Escrow Agreement; and (iv) each share of the Company’s Series C Preferred Stock, $0.001 par value per share (the “Series C Preferred Stock”), issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares (as hereinafter defined) or any shares of Series C Preferred Stock to be cancelled pursuant to Section 2.8(b)) shall be cancelled and extinguished and be converted into the right, upon the surrender of the certificate representing such Series C Preferred Stock, to receive the per share amount set forth on the Payment Schedule without any interest thereon, plus the Applicable Escrow Remainder, if any, upon termination of the Escrow Agreement. The Common Stock, Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock shall together mean “Company Stock.” As of the Effective Time, all shares of Company Stock shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of a certificate representing any such shares of Company Stock shall cease to have any rights with respect thereto, except the right, upon the surrender of such certificate, to receive the Purchase Price for each share of such Company Stock in accordance with this Section 2.8, without interest.

(b) Cancellation of Treasury Stock. Each share of Company Stock that is (i) held in the treasury of the Company or (ii) owned by Parent or Sub, in each case immediately prior to the Effective Time, shall be cancelled and retired and shall cease to exist without any conversion thereof and no payment or distribution shall be made with respect thereto.

(c) Sub Common Stock. Each share of common stock of Sub issued and outstanding immediately prior to the Effective Time shall be converted into one fully paid and nonassessable share of common stock of the Surviving Corporation and such shares shall immediately thereafter constitute all of the issued and outstanding capital stock of the Surviving Corporation.

(d) Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares of Company Stock outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of the Merger and who has demanded appraisal for such shares in accordance with Section 262 of the DGCL, if the DGCL provides for appraisal rights for such shares of Company Stock in the Merger (“Dissenting Shares”), shall not be converted into a right to receive the Purchase Price unless such holder fails to perfect or withdraws or otherwise loses such holder’s right to appraisal (or, if applicable, dissenter’s rights). If, after the Effective Time, such holder fails to perfect or withdraws or loses such holder’s right to appraisal (or, if applicable, dissenters’ rights), such Dissenting Shares shall be treated as if they had been converted as of the Effective Time into a right to receive the Purchase Price without interest or dividends thereon. The Company shall give Parent prompt notice of any demands received by the Company for appraisal of shares of Company Stock, and, prior to the Effective Time, Parent shall have the right to participate in all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, except with the prior written consent of Parent or as required under the DGCL, make any payment with respect to, or settle or offer to settle, any such demands.

SECTION 2.9 Treatment of Options and Other Equity Rights(a) . (a) At the Effective Time, all options to purchase Common Stock issued by the Company pursuant to the Stock Plans (as defined in Section 2.9(b)), whether vested or unvested and whether exercisable or unexercisable (each a “Company Option”) shall, by virtue of the Merger and without any action on the part of the Company or the holder thereof, be cancelled. Neither Parent nor the Surviving Corporation shall assume any of the Company Options in connection with the transactions contemplated by this Agreement.

(b) Prior to the Effective Time, the Board of Directors of the Company (or, if appropriate, any committee thereof) shall adopt appropriate resolutions and take all other actions necessary to provide for the cancellation without payment or consideration therefor, effective at the Effective Time, of all the outstanding stock options, stock appreciation rights, phantom shares, awards of restricted or deferred stock, warrants or other rights related to or denominated with reference to the securities of the Company (the “Stock Rights”) heretofore granted under any stock option, restricted stock or similar agreement, performance unit or similar plan, program, agreement or arrangement related to or denominated with reference to the securities of the Company (the “Stock Plans”).

(c) As provided herein, the Stock Plans and any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or its subsidiary shall terminate as of the Effective Time and the Company shall ensure that following the Effective Time no holder of a Stock Right or any participant in any Stock Plans shall have any right thereunder to acquire capital stock of the Company, Sub, the Surviving Corporation or any of their respective subsidiaries. The Company will take all necessary steps to ensure that, as of the Effective Time, none of Sub, the Company, the Surviving Corporation or any of their respective subsidiaries is or will be bound by any Stock Rights, other options, warrants, rights or agreements which would entitle any person, other than Sub or its affiliates, to own any capital stock of the Company, Sub, the Surviving Corporation or any of their respective subsidiaries or to receive any payment in respect thereof.

SECTION 2.10 Surrender of Shares of Company Stock; Stock Transfer Books(a) . (a) As soon as practicable (but no later than 10 days) after the Effective Time, Parent shall mail to each record holder of certificates representing Company Stock (the “Company Stock Certificates”) a letter of transmittal in a form approved by Parent and reasonably acceptable to the Shareholder Representative with instructions for use in surrendering the Company Stock Certificates to Parent in exchange for the right to receive cash pursuant to Sections 2.6, 2.7 and 2.8 above. Upon surrender to Parent of such Company Stock Certificates (or affidavit of loss or destruction in lieu thereof, including any suitable bond or indemnity that may be reasonably required by Parent), duly executed and completed to Parent’s reasonable satisfaction, Parent shall make payment to the persons entitled thereto by check or wire transfer, as set forth in the delivery instructions delivered by the Company, in the amount equal to the price to which such person is entitled pursuant to Section 2.8 hereof If payment is to be made to a person other than the registered holder of the Company Stock Certificate surrendered, it shall be a condition of such payment that the Company Stock Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the Company Stock Certificate surrendered or establish to the reasonable satisfaction of the Surviving Corporation or Parent that such tax has been paid or is not applicable.

(b) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of shares of capital stock of the Company that were outstanding immediately prior to the Effective Time.

(c) Notwithstanding the foregoing, neither Parent nor any party hereto shall be liable to any holder of Company Stock Certificates formerly representing securities of the Company for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar law.

(d) If, at any time after the Effective Time, the Surviving Corporation shall consider or be advised that any deeds, bills of sale, assignments, assurances or any other actions or things are reasonably necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either Sub or the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, the officers of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of each of Sub and the Company or otherwise, all such deeds, bills of sale, assignments and assurances and to take and do, in such names and on such behalves or otherwise, all such other actions and things as may be reasonably necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out the purposes of this Agreement.

SECTION 2.11 Withholding Rights. Parent and the Escrow Agent shall be entitled to deduct and withhold from any amount otherwise payable pursuant to this Agreement to the holders of securities of the Company such amounts as Parent and the Escrow Agent are required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local or foreign Tax law. To the extent that amounts are so withheld by Parent and the Escrow Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holders of securities of the Company.

SECTION 2.12 Closing and Closing Date. Unless this Agreement shall have been terminated and the Merger contemplated hereby shall have been abandoned pursuant to the provisions of Section 8.1, the closing (the “Closing”) of this Agreement shall take place (a) at 10:00 a.m. (New York time) no later than the fifth business day after the condition with respect to the HSR Act set forth in Section 7.1(c) shall have been satisfied; provided that if such condition shall have been satisfied subject to contingencies imposed by any Governmental Body, then no later than the thirtieth (30^th) day following the satisfaction of such condition or (b) at such other time and date as Parent and the Company shall agree (in either case, such date and time on and at which the Closing occurs being referred to herein as the “Closing Date”). The Closing shall take place at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, New York 10022 or such other location as Parent and the Company shall agree.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby represents and warrants to Parent and Sub that:

SECTION 3.1 Organization and Qualification. Except as set forth in Section 3.1 of the Company Disclosure Schedule, the Company is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the requisite corporate power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted. The Company is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of its properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except in any such jurisdiction where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

SECTION 3.2 Certificate of Incorporation and By-Laws. The Company has heretofore furnished to Parent complete and correct copies of its certificate of incorporation (as amended, the “Certificate of Incorporation”) and by-laws (the “By-laws”). Such organizational documents are in full force and effect and no other organizational documents are applicable to or binding upon the Company. The Company has heretofore furnished to Parent copies of the minutes of all meetings or other actions of the Board of Directors (and all committees thereof) of the Company held or taken since July 1999 and, to the extent such minutes are not complete and correct, there have been no meetings or other actions of the Board of Directors (or any committees thereof) of the Company held or taken since July 1999 that are material and not reflected in such minutes.

SECTION 3.3 Capitalization(a) . The authorized capital stock of the Company consists of 104,206,256 shares, consisting of 62,000,000 shares of Common Stock of which 10,136,132 are issued and outstanding; 2,050,000 shares of Series A Preferred Stock of which 1,938,882 are issued and outstanding; 15,013,398 shares of Series B Preferred Stock of which 14,998,043 are issued and outstanding; 12,571,429 shares of Series C Preferred Stock of which 12,571,429 are issued and outstanding; 12,571,429 shares of Series C-1 Preferred Stock of which 0 are issued and outstanding and, upon the filing of the Eighth Amended and Restated Certificate of Incorporation, 2,691,355 shares of Series D Preferred Stock of which none are issued and outstanding. The outstanding Company Stock has been duly authorized, validly issued, fully paid and nonassessable and is not subject to preemptive (or similar) rights that have not been waived. Except as set forth in Section 3.3(a) of the Company Disclosure Schedule, (x) there are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any Company Stock or any voting or equity securities or interests of the Company, (y) there is no voting trust or other agreement or understanding to which the Company is a party or is bound with respect to the voting of the capital stock or other voting securities of the Company and (z) there are no other options, calls, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company to which the Company is a party.

(b) Except as set forth in Section 3.3(b) of the Company Disclosure Schedule, as of the date hereof, the Company does not, directly or indirectly, own or have the right to acquire any equity securities, or any securities convertible or exchangeable into equity securities, in any other corporation, partnership, joint venture or other business organization.

SECTION 3.4 Authority Relative to This Agreement. Except as set forth in Section 3.4 of the Company Disclosure Schedule: (i) the Company has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and (ii) the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate and stockholder action and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions so contemplated (other than the filing of the appropriate merger documents as required by the DGCL). This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered on a proceeding in equity or at law) and an implied covenant of good faith and fair dealing).

SECTION 3.5 No Conflict; Required Filings and Consents. Except as set forth in Section 3.5 of the Company Disclosure Schedule:

(a) The execution, delivery and performance of this Agreement by the Company do not and will not: (i) conflict with or violate the Certificate of Incorporation or By-Laws of the Company, (ii) conflict with or violate in any material respect any law, rule, regulation, order, judgment or decree of any Governmental Body applicable to the Company or by which its properties are subject (assuming that all consents, approvals and authorizations contemplated by clauses (i) and (ii) of subsection (b) below have been obtained and all filings described in such clauses have been made), or (iii) result in any material breach or violation of or constitute a material default (or an event which with notice or lapse of time or both could become a material default) or result in the loss of a material benefit under, or give rise to any material right of termination, amendment, acceleration or cancellation of, or require the consent of any third party, or result in the payment of any additional amounts or consideration that is material individually or in the aggregate other than fees, royalties or payments which the Company would otherwise have been required to pay had the transactions contemplated by this Agreement not occurred, or result in the creation of a material lien or encumbrance on any of the properties or assets of the Company, other than Permitted Encumbrances, pursuant to any Contract.

(b) The execution, delivery and performance of this Agreement by the Company and the consummation of the Merger by the Company do not and will not require the Company to obtain or make any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Body, except for (i) filings required in connection with or in compliance with the provisions of the HSR Act and (ii) the filing and recordation of appropriate merger or other documents as required by the DGCL.

SECTION 3.6 Compliance. Except as set forth in Section 3.6 of the Company Disclosure Schedule, the Company is in compliance with, and is not in default or violation of, the Certificate of Incorporation and By-Laws of the Company, and is, in material compliance with, and is not in material default or violation of, all laws, rules, regulations, orders, judgments and decrees of any Governmental Body applicable to it or by which any of its properties are subject. The Company has all material permits, licenses, authorizations, consents, approvals and franchises from governmental agencies required to conduct its businesses as now being conducted and the Company has not received notice of any revocation or material modification of any such permit, license, authorization, consent or approval.

SECTION 3.7 Financial Statements(a) . (a) Section 3.7(a) of the Company Disclosure Schedule contains copies of the Company’s consolidated audited and unaudited financial statements (hereinafter collectively called the “Financial Statements”), which have been prepared in accordance with GAAP consistently applied and maintained throughout the periods indicated, as follows: the audited balance sheets of the Company for the fiscal years ended 2001, 2002 and 2003 and the Balance Sheet, and, in each case, the related statements of operations and cash flows for the periods then ended. The Financial Statements fairly present the financial condition of the Company as at their respective dates and the results of its operations for the periods covered thereby (subject to normal year-end adjustments and except that any unaudited financial statements do not contain all required footnotes, which will not be material, individually or in the aggregate), and correctly reflect and disclose all extraordinary items. Subject to the foregoing, and except (i) as set forth in Section 3.7 of the Company Disclosure Schedule, or (ii) as is necessary and required by new generally accepted accounting principles, there have been no material changes in accounting policies, practices or procedures of the Company since December 31, 2003. The books and records of the Company have been, and are being, maintained in accordance with applicable legal and accounting requirements.

(b) Except as set forth in Section 3.7(b) of the Company Disclosure Schedule, the Company does not have any outstanding Indebtedness for borrowed money.

SECTION 3.8 Absence of Certain Changes or Events. Since April 30, 2004, except as set forth in Section 3.8 of the Company Disclosure Schedule or as contemplated by this Agreement, the Company has conducted its businesses only in the ordinary course and in a manner consistent with past practice and there has not been, with respect to the Company:

(i) any change, event or effect that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect;

(ii) any material loss, damage or destruction to, or any material interruption in the use of, the Company’s assets, taken as a whole (in each case, whether or not covered by insurance);

(iii) any material loss, damage or destruction to the PICA machinery;

(iv) except in the ordinary course of business, any lien or encumbrance of any kind on any of its properties or assets (whether tangible or intangible), other than Permitted Encumbrances;

(v) any general increase, or any announcement of any general increase, in the wages, salaries, compensation, bonuses, incentives, pension or other benefits payable by the Company to its employees, or any specific increase, or any announcement of any specific increase, in the wages, salaries, compensation, bonuses, incentives, pension or other benefits payable by the Company to any director or any employee who, as of the date hereof, receives from the Company in excess of $50,000 base salary on an annual basis;

(vi) any payment of or any agreement to pay pensions, retirement allowances or other employee benefits to any director or employee, whether past or present;

(vii) the execution of any new employment, severance, consulting or other compensation agreement with any (a) director of the Company or (b) employee, consultant or other individual providing services to or on behalf of the Company who is entitled to receive $50,000 or more in compensation, annually;

(viii) any commitment to any additional pension, profit-sharing, deferred compensation, group insurance, severance pay, retirement or other employee benefit plan, fund or similar arrangement or any amendment or commitment to amend any of such plans, funds or similar arrangements in existence on the date hereof;

(ix) any termination, discontinuance, closing or disposition of any facility or business operation, any layoffs of employees or implementation of any early retirement, separation or window program or announcement of any such action or program for the future;

(x) any declaration of a dividend or any payment or distribution in respect of, or any reclassification of, shares of its capital stock;

(xi) any amendment to its Certificate of Incorporation or By-laws, or any recapitalization, stock split, reverse stock split or similar transaction;

(xii) except in the ordinary course of business consistent with past practice: (a) other than pursuant to an agreement set forth in Section 3.16 of the Company Disclosure Schedule, any license, sale, assignment, pledge, or abandonment of any Company Owned Intellectual Property, in whole or in part, or (b) termination of any IP Licenses that would have otherwise been required to be disclosed on Section 3.16(l) of the Company Disclosure Schedule, in whole or in part;

(xiii) any capital expenditures, except those made in the ordinary course of business consistent with past practice which did not exceed $50,000 in the aggregate at any time;

(xiv) any premature termination of, material amendment to, or waiver of any material right or remedy under, any Contract set forth in Section 3.16 of the Company Disclosure Schedule or any Contract that would, if in effect as the date hereof, be required to be set forth in Section 3.16 of the Company Disclosure Schedule;

(xv) the making or rescinding of any material election relating to Taxes, the settlement or compromise of any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or except as required by applicable law or GAAP, the making of any material change to any of the Company’s methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the preparation of its most recent federal income Tax Return; or

(xvi) any agreement to do any of the foregoing.

SECTION 3.9 Absence of Litigation. Except as set forth in Section 3.9 of the Company Disclosure Schedule, there are no suits, claims, arbitrations, actions, proceedings or investigations pending or, to the Knowledge of the Company, threatened against the Company, or any properties or rights of the Company, before any court, arbitrator or administrative, governmental or regulatory authority or body, domestic or foreign that could reasonably be expected to result in a liability to the Company in excess of $100,000 or that in any way restrict the operation of the Company or that seek to prevent, enjoin, alter or delay any of the transactions contemplated hereby. The Company and its properties are not subject to any order, writ, judgment, injunction, decree, determination or award that in any way restricts the operation of the Company or that seeks to prevent, enjoin, alter or delay any of the transactions contemplated hereby.

SECTION 3.10 Employee Benefit Plans(a) (a) Section 3.10(a) of the Company Disclosure Schedule contains a true and complete list of each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (including without limitation multiemployer plans within the meaning of ERISA Section 3(37)), stock purchase, stock option, severance, employment, change-of-control, material fringe benefit, collective bargaining, bonus, incentive, deferred compensation and all other material compensation and benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, whether formal or informal, oral or written, under which any current or former employee, consultant or director of the Company has any present or future right to benefits or under which the Company has any present or future liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the “Plans”.

(b) With respect to each Plan, the Company has delivered or made available to Parent a current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and, to the extent applicable, (i) any related trust agreement, annuity contract or other funding instrument; (ii) the most recent determination letter; (iii) any summary plan description and other material written communications by the Company to its employees, consultants or directors in general concerning the extent of the benefits provided under a Plan; and (iv) for the two most recent years (as filed with any Governmental Body), the Form 5500.

(c) Each Plan has been established and administered in all material respects in accordance with its terms, and in all material respects in compliance with the applicable provisions of ERISA, the Code and other applicable laws, rules and regulations and if intended to be qualified within the meaning of section 401(a) of the Code is so qualified, and no Plan is currently under audit by the Internal Revenue Service, the Department of Labor or the Pension Benefit Guaranty Corporation. With respect to any Plan, no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of the Company, threatened. To the Knowledge of the Company, neither the Company nor any other party has engaged in a prohibited transaction, as such term is defined under section 4975 of the Code or section 406 of ERISA, which would subject the Company, the Surviving Corporation, any of their subsidiaries, Sub or Parent to any material taxes, penalties or other material liabilities under section 4975 of the Code or sections 409 or 502(i) of ERISA. No Plan provides for an increase in benefits on or after the Closing Date.

(d) No Plan is, or at any time was, subject to Title IV of ERISA, and neither the Company, nor any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of organizations within the meaning of sections 414(b), (c), (m) or (o) of the Code), has incurred any liability under Title IV of ERISA and no condition exists that presents a material risk of incurring any such liability. Neither the Company, nor any member of its Controlled Group, has incurred any liability, and no condition exists that presents a risk of incurring such liability, in connection with any multiemployer plan (within the meaning of section 4001(a)(3) of ERISA). Except as required by Section 4980B of the Code, no Plan provides medical or death benefits with respect to any employees of the Company beyond their retirement or other termination of employment. Any group health plan continuation coverage provided under any Plan is in material compliance with Section 4980B of the Code. No condition exists that would prevent the Company from amending any Plan. The Company does not maintain or otherwise have any liability with respect to any deferred compensation, excess benefit or other non-qualified supplemental retirement plan, program or arrangement.

(e) Except as set forth in Section 3.10(e) of the Company Disclosure Schedule, no Plan exists which could result in the payment to any employee of the Company of any money or other property or rights or accelerate or provide any other rights or benefits to any such employee in connection with or as a result of the transactions contemplated by this Agreement, whether or not subject to Section 280G of the Code, and whether or not any further or subsequent event or action is required therefor. Except as set forth in Section 3.10(e) of the Company Disclosure Schedule, no amount that could be received (whether in cash or property or the vesting of property) as a result of any transaction contemplated hereby by any employee, officer or director of the Company who is a “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Plan could be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code). There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company that provides for any “gross-up payment” relating to, or other payment of, or reimbursement by, the Company of any excise tax that may be imposed under Code Section 4999 as a consequence of the transactions contemplated hereby.

(f) Pursuant to the Company’s rights contained in Section 9.11 of the Consulting Agreement, dated as of August 14, 2003, by and between the Company and SoleNet, Inc. (“SoleNet”), the Company has exercised its option to hire the employees of SoleNet set forth in Section 3.10(f) of the Company Disclosure Schedule on substantially the same terms as similarly situated employees of the Company.

SECTION 3.11 Tax Matters. Except as set forth in Section 3.11 of the Company Disclosure Schedule:

(a) All material Tax Returns that are required to be filed by or with respect to the Company have been duly and timely filed, and all such Tax Returns are complete and accurate in all material respects. The Company is not the beneficiary of any extension of time within which to file any Tax Return. All Taxes owed by the Company which are or have become due (whether or not shown, or required to be shown, on a Tax Return) have been paid in full or an adequate reserve (in conformity with GAAP) has been established therefor and is reflected in the Financial Statements, and the unpaid Taxes do not exceed the amount of such reserve. The Company has not incurred any Taxes since the date of the most recent Financial Statements other than Taxes incurred in the ordinary course of business. There are no encumbrances with respect to Taxes upon any of the assets of the Company, other than Permitted Encumbrances.

(b) The Company has made available to Parent true and correct copies of all material Tax Returns of the Company relating to the taxable periods ending 2000, 2001 and 2002. No waivers of statutes of limitation with respect to any such Tax Returns have been given by or requested from the Company. The Company has not received written notice from any governmental agency in a jurisdiction in which the Company does not file a Tax Return stating that the Company is or may be subject to taxation by that jurisdiction.

(c) No material deficiencies for income Taxes or other material Taxes have been claimed, proposed or assessed in writing against the Company by any Taxing authority which have not been settled, and the Company has no Knowledge of any pending or threatened claim, proposal or assessment against the Company for any such deficiency for Taxes. To the Knowledge of the Company, there are no pending or threatened audits, investigations or other proceedings relating to any liability of the Company in respect of Taxes. None of the income Tax Returns or other material Tax Returns of the Company is currently being, or in the past five years has been, examined by the IRS or relevant state, local or foreign Taxing authorities. The Company has not entered into a closing agreement pursuant to Section 7121 of the Code during the prior five years.

(d) The Company is not a party to or bound by any tax-indemnity, tax-sharing, or tax-allocation agreement, whether written or unwritten.

(e) The Company has not been a member of an affiliated group of corporations, within the meaning of Section 1504 of the Code.

(f) None of the assets of the Company is property required to be treated as being owned by any other person pursuant to the “safe harbor lease” provisions of former Section 168(f)(8) of the Code.

(g) None of the assets of the Company directly or indirectly secures any debt the interest on which is tax-exempt under Section 103(a) of the Code.

(h) None of the assets of the Company is “tax-exempt use property” within the meaning of Section 168(h) of the Code.

(i) The Company has not filed a consent pursuant to Section 341(f) of the Code, or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as such term is defined in Section 341(f) of the Code) owned by it.

(j) The Company has not agreed and is not required to make any adjustment pursuant to Section 481(a) of the Code by reason of a change in accounting method, and to the Knowledge of the Company, the IRS has not proposed any such adjustment or change in accounting method.

(k) The Company has not within the past three (3) years been a party to a transaction intended to qualify under Section 355 of the Code or under so much of Section 356 of the Code as relates to Section 355 of the Code.

(l) The Company does not have any Subsidiaries.

(m) None of the Indebtedness of the Company constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code.

(n) The Company has not entered into any transaction which is a “reportable transaction” (as defined in Treasury Regulation Section 1.6011-4) or any similar transaction or a “potentially abusive tax shelter” (as defined in Treasury Regulation Section 1.6112-1).

(o) The Company does not have a permanent establishment in any foreign country, as defined in any applicable Tax treaty or convention between the United States and such foreign country.

SECTION 3.12 Environmental Matters. The Company and each of the Properties is and has been, while owned by the Company, operated and maintained in material compliance with all Environmental Laws, including the terms and conditions of all permits and licenses required of the Company pursuant to Environmental Laws. No Hazardous Materials are being or have been used, generated, stored, treated, transported, handled, Released, or threatened to be Released, by the Company at any property (whether or not currently owned or operated by the Company) except in compliance with Environmental Laws or in a manner which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect under any Environmental Law. To the Knowledge of the Company, no Hazardous Materials are being or have been Released, or are threatened to be Released, by any Person other than the Company at, on or under the Properties or at any other property which have come to be located at, on or under the Properties that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. There are no pending notices of noncompliance, notices of violation, administrative actions, claims, lawsuits, or investigations directed at the Company or any of the properties of the Company, and the Company has received no other communications, regarding any violation, alleged violation, or potential liability under Environmental Laws that are, individually or in the aggregate, reasonably expected to result in a Company Material Adverse Effect. The Company has not received any written notification of any allegation of any responsibility for any Release or threatened release of any Hazardous Materials at any location and the Company is not party to any agreement pursuant to which the Company has any indemnity or other continuing obligation with respect to any such Release, any condition resulting therefrom, or any actual or potential non-compliance with Environmental Law which would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company is not subject to any consent decrees, consent orders, judgments, judicial or administrative orders, or liens by any Governmental Body relating to any Environmental Law which have not already been satisfied and discharged in all material respects. To the Knowledge of the Company, no Properties of the Company are listed on the federal National Priorities List, the federal Comprehensive Environmental Response Compensation Liability Information System list, or any similar state listing of sites known to be contaminated with Hazardous Materials. There are no facts or circumstances that, to the Knowledge of the Company, would reasonably be expected to give rise to any violation of Environmental Law that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or would materially interfere with the Company’s continued compliance with Environmental Law. None of the Properties or the assets of the Company will require a material capital investment in order to remain in compliance with Environmental Laws.

SECTION 3.13 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company other than Goldman, Sachs & Co.

SECTION 3.14 Vote Required. The affirmative votes of the holders of a majority of the outstanding shares of Company Stock, voting together as a single class, and the affirmative votes of the holders of a majority of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock outstanding, voting together as a single class, are the only votes of the holders of any class or series of the Company’s capital stock necessary to adopt this Agreement and approve the transactions contemplated by this Agreement. The Written Consents delivered by the Principal Stockholders contemporaneously with the execution and delivery of this Agreement are sufficient to adopt this Agreement and approve the transactions contemplated by this Agreement. The Board of Directors of the Company (at a meeting duly called and held) has (i) approved and declared advisable this Agreement, (ii) determined that the transactions contemplated hereby are advisable and in the best interests of the holders of Company Stock, and (iii) recommended adoption of this Agreement by the Shareholders in connection with obtaining the Written Consents.

SECTION 3.15 No Commitments Regarding Future Products. Except as set forth in Section 3.15 of the Company Disclosure Schedule, the Company has made no sales to customers that are contingent upon providing future enhancements of existing products, to add features not presently available on existing products or to otherwise enhance the performance of its existing products (other than beta or similar arrangements pursuant to which the Company’s customers from time to time test or evaluate products). The Company has provided Parent access to all reasonably requested information regarding all products in development (exclusive of mere enhancements to and additional features for existing products).

SECTION 3.16 Material Contracts. Section 3.16 of the Company Disclosure Schedule contains a complete and accurate list of all contracts (written or oral), plans, undertakings, commitments or agreements, in each case that is material to the Company, to which the Company is a party or is bound as of the date of this Agreement (“Contracts”) of the following categories, other than those listed in Section 3.10 of the Company Disclosure Schedule:

(a) all employment contracts, including, without limitation, contracts to employ executive officers and other contracts with officers, directors of the Company or the Shareholders, and all severance, change in control or similar arrangements with any officers, employees or agents of the Company that will result in any obligation (absolute or contingent) of the Company to make any payment to any officers, employees or agents of the Company following either the consummation of the transactions contemplated hereby, termination of employment, or both;

(b) other than purchase orders issued in the ordinary course of business, Contracts involving future annual expenditures or liabilities of the Company in excess of $25,000 which are not cancelable (without penalty, cost or other liability in excess of $25,000) within ninety (90) days;

(c) promissory notes, loans, agreements, indentures, evidences of Indebtedness or other instruments providing for the lending of money, whether as borrower, lender or guarantor, providing for aggregate payments by, or aggregate payments to, the Company in excess of $500,000 with respect to calendar year 2004 or $1,000,000 over the life of such Contract;

(d) agreements containing covenants limiting the freedom of the Company or, after the Merger, Parent or any of its affiliates, to engage in any line of business or compete with any person or operate at any location following the Effective Time;

(e) agreements requiring the Company to conduct business exclusively with one or more parties and, with respect to any such Contract;

(f) joint venture or partnership agreements or joint development or similar agreements pursuant to which any third party is entitled to develop any products on behalf of the Company (other than agreements with consultants and independent contractors involving annual payments by the Company of not more than $25,000);

(g) any Contract where the customer under such Contract is the United States federal government;

(h) any Contract pending for the acquisition, directly or indirectly (by merger or otherwise) of assets with fair market value or book value in excess of $50,000 (other than inventory) or capital stock of another person;

(i) any Contract containing “change of control” provisions which would be triggered upon the Merger;

(j) any Contract containing a “most favored nation” provision, whether any such provision addresses pricing, volume commitments, credit, payment terms, product scope or the like;

(k) all reseller agreements;

(l) all IP Licenses (other than “shrink wrap” end user licenses and similar generally available commercial binary code end user licenses that are not used for software development or in any products or services provided by the Company to customers);

(m) all original equipment manufacturing Contracts of any kind and all distribution Contracts providing for aggregate payments by, or aggregate payments to, the Company in excess of $50,000 with respect to calendar year 2004 or $500,000 over the life of such Contract; and

(n) any other agreement that is material to the conduct of the Company’s business or that was entered into outside the ordinary course of business consistent with past practice.

There are no contracts, plans, undertakings, commitments or agreements which are material to the Company other than those listed in Sections 3.3, 3.5, 3.8, 3.10(a), 3.15, 3.16, 3.17, 3.19 or 3.20 of the Company Disclosure Schedule. All reseller agreements listed on Section 3.16 of the Company Disclosure Schedule, conform in all material respects to the Company’s standard form reseller contract, a copy of which has been provided to Purchaser.

SECTION 3.17 Absence of Breaches or Defaults. The Company, is not in default under, or in breach or violation of, any Contract and, to the Knowledge of the Company, no event has occurred which, with the giving of notice or passage of time or both would constitute a material default under any Contract. To the Knowledge of the Company, no other party is in default under, or in breach or violation of, any Contract. Other than Contracts which have terminated or expired in accordance with their terms, each of the Contracts is valid, binding and enforceable in accordance with its terms against the Company and, to the Knowledge of the Company, the other parties thereto (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered on a proceeding in equity or at law) and is in full force and effect, in each case in all material respects. No event has occurred which either entitles, or would, on notice or lapse of time or both, entitle the holder of any Indebtedness for borrowed money of the Company to accelerate, or which does accelerate, the maturity of such Indebtedness.

SECTION 3.18 Intellectual Property(a) . (a) Set forth on Section 3.18(a) of the Company Disclosure Schedule are all (i) issued patents and pending patent applications (including as applicable for each item listed, the record owner, the jurisdiction, the application and registration numbers, the filing date, and the issuance date), (ii) trademark and service mark registrations and applications for registration thereof (including as applicable for each item listed, the record owner, the jurisdiction, the serial/application and registration numbers, the filing date, and the registration date), (iii) copyrights and mask work registrations and applications for registration thereof (including as applicable for each item listed, the record owner, the jurisdiction, the registration number, the filing date, and the registration date), and (iv) internet domain name registrations and applications and reservations therefore (including as applicable for each item listed, the record owner, the registrar, and the expiration date), in each case that constitute Company Owned Intellectual Property (collectively, the “Company Registered Intellectual Property”).

(b) Except as disclosed in Section 3.16 or 3.18(b) of the Company Disclosure Schedule, with respect to each item of Company Registered Intellectual Property: (i) the Company is the sole owner and possesses legal title in and to the item in the listed country or jurisdiction, free and clear of any liens, pledges, and security interests, except for Permitted Encumbrances; (ii) the Company has not granted to any Person any license or option to purchase such item (except for customer end user licenses and licenses to contract manufacturers of the Company); and (iii) such item has not been cancelled, abandoned or made the subject of any opposition, cancellation, reissue, reexamination, interference or equivalent proceeding. All payments currently due to governmental agencies or other officially recognized registrars with respect to such Company Registered Intellectual Property, including, without limitation, maintenance and filing fees, have been made.

(c) Except as disclosed in Section 3.16(l) or Section 3.18(c) of the Company Disclosure Schedule, the Company has no current contractual obligation to pay any royalties or other consideration for any third party Intellectual Property incorporated into, or used in connection with the manufacture of, any of the Company’s products. Except as disclosed in Section 3.18(c) of the Company Disclosure Schedule, none of the material rights that the Company has under the Company Owned Intellectual Property will be changed by the consummation of the transactions contemplated by this Agreement.

(d) Except as disclosed in Section 3.18(d) of the Company Disclosure Schedule, the Company has not received any charge, complaint, claim, demand, or notice in writing from a third party during the past two (2) years, (or earlier, if not resolved) alleging that the Company in the conduct of its business infringes, misappropriates, or dilutes the Intellectual Property of a third party. To the Knowledge of the Company, except as disclosed in Section 3.18(d) of the Company Disclosure Schedule, during the past two (2) years (or earlier if not resolved) no third party has infringed upon, misappropriated, or diluted the Company Owned Intellectual Property.

(e) The Company has taken all commercially reasonable steps to assure that all employees, directors, and officers of the Company and any individual acting as an independent contractor hired by Company who have access to confidential information of the Company have a contractual or legal obligation of confidentiality to the Company with respect to such confidential information. The Company has taken all commercially reasonable steps to assure that all such employees, directors, and officers of the Company and individuals acting as an independent contractor hired by the Company who have contributed to or participated in the conception and development of the Intellectual Property claimed to be owned by the Company have an obligation to transfer rights for no additional consideration inventions, and authored works, whether or not patented, patentable, copyrighted or otherwise protectable under applicable laws, made during the course of their employment using resources of the Company, and to the Knowledge of the Company, except as set forth in Section 3.18(e) of the Company Disclosure Schedule, the Company has provided Parent with copies of all agreements with its employees, directors, and officers relating to the assignment of such inventions and authored works.

(f) Except as set forth in Section 3.18(f) of the Company Disclosure Schedule, no government or university funding was provided indirectly or directly to Company for use in the creation or development of any Company Owned Intellectual Property.

(g) There are no agreements or legal obligations between the Company and any former or current employee, director, shareholder, or consultant of the Company pursuant to which such Person has the right to receive future royalty payments or other consideration with respect to any Company Owned Intellectual Property.

(h) To the Knowledge of Company, the Company’s use and dissemination of any and all data and information concerning users of its web sites is in compliance with all applicable privacy policies, terms of use, and laws. The transactions contemplated hereunder will not violate any privacy policy, terms of use, or laws relating to the use, dissemination, or transfer of such data or information.

SECTION 3.19 Sufficiency of Assets. Other than with respect to Intellectual Property, the Company owns, licenses or leases all assets necessary for the conduct of its business as presently conducted and the Company’s assets in the aggregate, are in such operating condition and repair (subject to normal wear and tear) as is necessary for the conduct of its businesses as presently conducted. The assets, both tangible and intangible (other than with respect to Intellectual Property), of the Company are sufficient in the aggregate for the continued conduct of the Company’s business after the Closing in substantially the same manner as conducted prior to the Closing.

SECTION 3.20 Insurance. Section 3.20 of the Company Disclosure Schedule contains a complete list of all currently effective material policies or binders of insurance or programs of self-insurance which related to the Company and/or the properties leased by the Company. True and complete copies of all such insurance policies and binders have been made available for inspection by Parent prior to the date of this Agreement. The coverage under each such policy and binder is in full force and effect and no written notice of cancellation or non-renewal has been received by the Company. The Company is not in material default under any of such policies. To the Knowledge of the Company, except as set forth on Section 3.20 of the Company Disclosure Schedule, there are no material liabilities for which the Company is not insured. The Company has not been refused insurance by any insurance carrier to which it has applied for insurance for the period from January 1, 2000 until the Closing Date.

SECTION 3.21 No Undisclosed Liabilities. There are no liabilities of the Company of any kind whatsoever, whether known or unknown, accrued, contingent, absolute, determined, asserted, liquidated, determinable or otherwise, other than the following (none of which liabilities set forth in (b) – (d) would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect):

(a) liabilities fully reflected or provided for in the Financial Statements;

(b) current liabilities incurred in the ordinary course of business consistent with past practice (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of contract, tort, breach of warranty, infringement or violation of law) since the Balance Sheet Date;

(c) liabilities under Contracts set forth in Section 3.16 of the Company Disclosure Schedule or incurred in the ordinary course of business which are not required by United States generally accepted accounting principles to be reflected on a balance sheet;

(d) Permitted Encumbrances;

(e) as otherwise disclosed in Section 3.21 of the Company Disclosure Schedule; and

(f) liabilities not described in clauses (a) – (e) that would not, individually or in the aggregate, reasonably be expected to result in Damages suffered by the Company in excess of $150,000.

SECTION 3.22 Employee Matters. The Company is in compliance in all material respects with all currently applicable laws and regulations respecting employment, discrimination in employment, terms and conditions of employment, wages, hours and occupational safety and health and employment practices, and is not engaged in any unfair labor practice. Except as set forth in Section 3.22 of the Company Disclosure Schedule, the Company has withheld all amounts required by law or by agreement to be withheld from the wages, salaries, and other material payments to employees, and the Company is not liable for any arrears of wages or any taxes or any penalty for failure to comply with any of the foregoing. The Company is not liable for any payment to any trust or other fund or to any Governmental Body, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistent with past practice). There are no pending claims against the Company under any workers compensation plan or policy or for long-term disability. There are no controversies pending or, to the Knowledge of the Company, threatened, between the Company and any of its employees, which controversies have resulted, or could reasonably be expected to result, in an action, suit, proceeding, claim, arbitration or investigation before any agency, court or tribunal, foreign or domestic. To the Company’s Knowledge, no employees of the Company are in violation of any term of any employment contract, patent disclosure agreement, noncompetition agreement, or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company because of the nature of the business conducted or presently proposed to be conducted by the Company or to the use of trade secrets or proprietary information of others. Except as set forth in Section 3.22 of the Company Disclosure Schedule, no employee of the Company has given written notice to the Company and, to the Company’s Knowledge, the Company is not otherwise aware, that any such employee intends to terminate his or her employment with the Company.

SECTION 3.23 Labor Relations. Except as set forth on Section 3.23 of the Company Disclosure Schedule: (a) no employee of the Company is represented by any labor union or other labor organization; (b) the Company has not engaged in any unfair labor practice with respect to the business of the Company and there is no unfair practice complaint against the Company pending or, to the Knowledge of the Company, threatened before the National Labor Relations Board the result of which would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (c) there is no labor strike, dispute, slowdown, or stoppage actually pending or, to the Knowledge of the Company, threatened against or involving the Company; and (d) there is no grievance or arbitration pending or, to the Knowledge of the Company, threatened against the Company regarding unfair labor practices or collective bargaining the result of which would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

SECTION 3.24 Affiliate Transactions. Except as set forth in Section 3.24 of the Company Disclosure Schedule, there are no contracts, commitments, agreements, arrangements or other transactions between the Company, on the one hand, and any (a) officer or director of the Company or any of their immediate family members (including their spouses), (b) record or beneficial owner of five percent or more of the voting securities of the Company, or (c) affiliate of any such officer, director, family member or beneficial owner, on the other hand.

SECTION 3.25 Customers. Section 3.25 of the Company Disclosure Schedule sets forth the names of the ten largest customers of the Company during the 12 month period ended June 30, 2004, and the Company has provided Parent the approximate amount during such period for which each such customer was involved to the extent that such disclosure does not violate the terms of any agreement to which the Company is bound. To the Knowledge of the Company, as of the date hereof, the Company has not received any written or oral notice that Wal-Mart Stores, Inc., Clark County, Nevada (in connection with the McCarran Airport) or Airport Authority of 1 Cheong Yip Road, Hong Kong International Airport (in connection with the Hong Kong Airport) has ceased, nor will cease, to use its products, equipment, goods or services, nor has substantially reduced, nor will substantially reduce, the use of such product, equipment, goods or services at any time.

SECTION 3.26 Suppliers. Section 3.26 of the Company Disclosure Schedule sets forth the names of the ten largest suppliers of the Company during the 12 month period ended June 30, 2004, and the Company has provided Parent the approximate amount during such period for which the Company was invoiced by each such supplier to the extent that such disclosure does not violate the terms of any agreement to which the Company is bound. To the Knowledge of the Company, as of the date hereof, the Company has not received any written or oral notice that Mstar Semiconductor Inc. or National Semiconductor Corporation will not sell raw material, supplies, merchandise and other goods to the Company at any time after the Closing Date on terms and conditions substantially similar to those currently in effect, subject only to general and customary price increases.

SECTION 3.27 Real Property(a) . (a) Section 3.27(a) of the Company Disclosure Schedule sets forth the address or other description of each parcel of real property that the Company owns in fee and operates or conducts any part of business upon, together with all improvements, buildings and fixtures located thereon or therein (collectively, the “Fee Real Property”). With respect to the Fee Real Property: (i) the Company has good and marketable title, free and clear of all encumbrances other than Permitted Encumbrances; (ii) the Company has not leased or otherwise granted to any Person the right to use or occupy such Fee Real Property or any material portion thereof; and (iii) there are no outstanding options, rights of first refusal, rights of first offer, rights or reverter or other third party rights to purchase such Fee Real Property.

(b) Section 3.27(b) of the Company Disclosure Schedule sets forth the address or other description of each parcel of real property that the Company has valid leasehold interests in and to (the “Leased Real Property” and, together with the Fee Real Property, the “Real Property”). The Company has the right to quiet enjoyment of the real properties leased by it as tenant for the full term of the lease thereof to the extent provided in each such lease. Each lease or other contract or agreement referred to in Section 3.27(b) of the Company Disclosure Schedule is a legal, valid, binding and enforceable obligation of the Company, as applicable. There are no outstanding options or rights of any third person to acquire any such leased property or any interest therein. All leases, ground leases, subleases, licenses, options or other agreements of the Company, as applicable, as set forth in Section 3.27(b) of the Company Disclosure Schedule, are in full force and effect, and the Company, as applicable, is not in default under any such leases, ground leases, subleases, licenses, options or other agreements, and no condition exists which (with notice or lapse of time or both) would constitute a default thereunder, in each case, other than such defaults as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. With respect to each lease or contract, the other party to such lease is not an affiliate of the Company. The Company has not subleased or otherwise granted any Person the right to use or occupy any Leased Real Property. The Company has not collaterally assigned or granted any other security interest in the Leased Property or any interest therein. Except for the Permitted Encumbrances, there exist no encumbrances affecting the Leased Real Property created by, through or under the Company.

(c) Except as listed on Section 3.27(c) of the Company Disclosure Schedule, the Company has not received written notice of any outstanding violation of any applicable Laws relating to any material part of the Real Property or the operation thereof or written notice of condemnation, special assessment or like, with respect thereto.

(d) The Real Property constitutes all of the real estate assets, rights, properties and services necessary to operate the business of the Company in all material respects as it currently conducted.

SECTION 3.28 Accounts Receivable. Except as set forth in Section 3.28 of the Company Disclosure Schedule, the accounts receivable reflected on the Balance Sheet result from bona fide transactions with third parties and are reflected on the Balance Sheet consistent with past practice and collection rates with respect to such accounts receivable considered as a whole, and no material portion of such accounts receivable or other debts is currently subject to any counterclaim or set-off except to the extent of any such provision or reserve.

SECTION 3.29 Royalties. Except as set forth in Section 3.29 of the Company Disclosure Schedule and except for payments of royalties or similar fees included in the Contracts listed in Section 3.16 of the Company Disclosure Schedule , the Company has no current contractual obligation to pay royalties or similar fees to any Person (including without limitation, to Telenexus, Inc. for rugged, stationary or hand-held readers). All royalties and other payments set forth in Section 3.29 of the Company Disclosure Schedule and all royalties and other payments arising in connection with the Contracts set forth in Section 3.16 of the Company Disclosure Schedule have been reserved for on the Balance Sheet.

SECTION 3.30 Information to Shareholders. None of the information regarding the Merger distributed to the Shareholders by the Company contained any statement that was (or is) inaccurate or misleading with respect to any material fact. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to any information supplied (or to be supplied) by Parent or Sub which was included in any of the aforementioned documents.

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES OF

PARENT AND SUB

Parent and Sub hereby, jointly and severally, represent and warrant to the Company that:

SECTION 4.1 Corporate Organization. Each of Parent and Sub is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated and has the requisite corporate power and authority to carry on its business as it is now being conducted.

SECTION 4.2 Authority . Each of Parent and Sub has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by each of Parent and Sub and the consummation by each of Parent and Sub of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Parent and Sub and no other corporate proceedings on the part of Parent or Sub are necessary to authorize this Agreement or to consummate the transactions so contemplated (other than the filing of appropriate merger documents as required by the DGCL). This Agreement has been duly and validly executed and delivered by Parent and Sub and, assuming due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of each such corporation enforceable against such corporation in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered on a proceeding in equity or at law).

SECTION 4.3 No Conflict; Required Filings and Consents(a) . (a) The execution, delivery and performance of this Agreement by Parent and Sub do not and will not: (i) conflict with or violate the respective certificates of incorporation or by-laws of Parent or Sub, (ii) conflict with or violate in any material respect any law, rule, regulation, order, judgment or decree of any Governmental Body applicable to Parent or Sub or by which its or any of their respective properties are bound (assuming that all consents, approvals and authorizations contemplated by clauses (i) and (ii) of subsection (b) below have been obtained and all filings described in such clauses have been made), or (iii) result in any material breach or violation of or constitute a material default (or an event which with notice or lapse of time or both could become a material default) or result in the loss of a material benefit under, or give rise to any material right of termination, amendment, acceleration or cancellation of, or result in the creation of a material lien or encumbrance on any of the properties or assets of Parent or Sub pursuant to any contracts (written or oral), plans, undertakings, commitments or agreements, in each case that is material to Parent, to which Parent is a party or is bound as of the date of this Agreement.

(b) The execution, delivery and performance of this Agreement by Parent and Sub and the consummation of the Merger by Parent and Sub do not and will not require Parent or Sub to obtain or make any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Body, except for (i) filings required in connection with or in compliance with the provisions of the HSR Act and (ii) the filing and recordation of appropriate merger or other documents as required by the DGCL.

SECTION 4.4 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Parent or Sub other than in connection with the Financing Commitment Letter and a fairness opinion delivered to the Board of Directors of Parent and to The Feder Group, LLC.

SECTION 4.5 Financing. Parent has received a commitment letter from a certain lender (the “Financing Commitment Letter”) committing such lender to provide to Parent financing for the transactions contemplated by this Agreement in an aggregate amount of $250,000,000, subject to the terms and conditions set forth therein (such financing, the “Debt Financing”). A copy of the Financing Commitment Letter has been provided to the Company. Upon the consummation of the Debt Financing on the terms and conditions set forth in the Financing Commitment Letter (without the waiver of any terms or provisions not consented to by Parent) or Parent otherwise obtaining an amount of financing not less than the amount contemplated by the Financing Commitment Letter, Parent will have on the Closing Date sufficient cash to consummate the transactions contemplated by this Agreement.

SECTION 4.6 Absence of Litigation. Other than as disclosed in the Public Documents, there are no suits, claims, arbitrations, actions, proceedings or investigations pending or, to the Knowledge of Parent, threatened against Parent, or any properties or rights of Parent, before any court, arbitrator or administrative, governmental or regulatory authority or body, domestic or foreign that that seek to prevent, enjoin, alter or delay any of the transactions contemplated hereby. Other than as disclosed in the Public Documents, Parent and its properties are not subject to any order, writ, judgment, injunction, decree, determination or award that seeks to prevent, enjoin, alter or delay any of the transactions contemplated hereby.

SECTION 4.7 Public Documents. Parent has filed with the Securities and Exchange Commission (“SEC”) all reports, schedules, forms, statements and other documents required by the Exchange Act to be filed by Parent since March 12, 2004 (collectively, and in each case including all exhibits and schedules thereto and documents incorporated by reference therein, the “Public Documents”). At the time filed (in the case of filings under the Exchange Act) or at the time declared effective (in the case of filings under the Securities Act of 1933, as amended (the “Securities Act”)), except to the extent revised or superseded by a subsequent filing with the SEC, the Public Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and none of the Public Documents (including any and all financial statements included therein) as of such dates contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

SECTION 4.8 The Stock Incentive Plans. Parent acknowledges that, consistent with Section 2.9, prior to the Effective Time, the Board of Directors of the Company (or if appropriate, any committee thereof) shall have acted to terminate the Matrics, Inc. Stock Incentive Plan and the Matrics, Inc. Advisors and Consultants Equity Plan (collectively, the “Stock Incentive Plans”), and that to the extent any option holder asserts any rights under the Stock Incentive Plans following the Effective Time, all liability resulting from any such claims will be borne by Parent.

ARTICLE V.

CONDUCT OF BUSINESS PENDING THE MERGER

SECTION 5.1 Conduct of Business of the Company Pending the Merger. The Company covenants and agrees that, during the period from the date hereof to the Effective Time, except as specifically contemplated by this Agreement or set forth in Section 5.1 of the Company Disclosure Schedule or unless Parent shall otherwise agree in writing in advance, the businesses of the Company shall be conducted only in the ordinary course of business and in a manner consistent with past practice and in compliance with applicable laws. By way of amplification and not limitation and except as specifically contemplated by this Agreement or set forth in Section 5.1 of the Company Disclosure Schedule, the Company shall not, between the date of this Agreement and the Effective Time, directly or indirectly do, or agree, authorize or commit to do, any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld:

(a) amend its Certificate of Incorporation or By-Laws or equivalent organizational documents;

(b) enter into, amend or terminate any original equipment manufacturing or distribution Contracts, or similar arrangements, of any kind;

(c) terminate or materially amend any relationships with the following customers: Wal-Mart Stores, Inc., (ii) Clark County, Nevada (in connection with the McCarran Airport) and (iii) Airport Authority of 1 Cheong Yip Road, Hong Kong International Airport (in connection with the Hong Kong Airport);

(d) terminate or materially amend any relationships with the following suppliers: Mstar Semiconductor Inc. and National Semiconductor Corporation;

(e) hire as an employee, or extend offers of employment to, any Person who is entitled to receive $50,000 or more in compensation, annually;

(f) mortgage, pledge or subject to liens or other encumbrances any of its assets, other than Permitted Encumbrances;

(g) except in the ordinary course of business consistent with past practice: (a) any license, sale, assignment, pledge, or abandonment of any Company Owned Intellectual Property, in whole or in part, or (b) termination of any IP Licenses required to be disclosed on Section 3.16(l) of the Company Disclosure Schedule, in whole or in part;

(h) (i) split, combine or reclassify any of the Company Stock; (ii) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to any of the Company Stock; (iii) issue or sell any additional Company Stock or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any of the Company Stock or (iv) redeem, purchase or otherwise acquire directly or indirectly any of the Company Stock;

(i) assume, incur or guarantee any obligation or liability for borrowed money other than as permitted pursuant to Section 6.12;

(j) institute or change, or agree to institute or change, any bonus, stock option, profit sharing, pension, retirement or other similar arrangement or plan;

(k) increase the compensation payable or to become payable to any director, officer, employee or agent, except that such compensation may be increased if in accordance with a plan or policy of the Company effective before the date hereof and disclosed to Parent in writing before the date hereof;

(l) fail to use commercially reasonable efforts to maintain in full force and effect the existing insurance policies covering the Company and its properties, assets and businesses, except for terminations that occur in the ordinary course of business and are renewed in connection therewith;

(m) enter into any agreement or contract so as to include, or amend any agreement or contract so as to include, any of the following provisions, or amend any of the following provisions to the extent contained in any agreement or contract: (i) any provision limiting the freedom of the Company (or Parent and its subsidiaries) to engage in any line of business or compete with any person or operate at any location following the Closing Date or (ii) any “change of control” provision which would be triggered upon the Merger, any sale of the Company or similar transaction;

(n) make or rescind any material election relating to Taxes, settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or except as required by applicable law or GAAP, make any material change to any of the Company’s methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the preparation of its most recent federal income Tax Return;

(o) knowingly do any act or omit to do any act within its control which will cause a material breach of any representation, warranty or obligation contained in this Agreement;

(p) do any act that would be required to be disclosed on Section 3.8 of the Company Disclosure Schedule had such act been taken prior to the date hereof;

(q) authorize or agree to do any of the foregoing.

ARTICLE VI.

ADDITIONAL AGREEMENTS

SECTION 6.1 Access to Information; Confidentiality(a) . (a) From the date hereof to the Effective Time or the earlier termination of this Agreement, upon reasonable advance notice, the Company shall, and shall cause its subsidiaries, officers, directors, employees, auditors and other agents to, afford the officers, employees, and other agents of Parent reasonable access during normal business hours to its officers, employees, auditors (which access to such auditors shall include access for the purpose of assisting Parent in the consummation of any financing undertaken by Parent in connection with the transactions contemplated hereby), legal counsel, properties, offices and other facilities and to all books and records, and shall furnish Parent with all financial, operating and other data and information as Parent through its officers, employees or agents may from time to time reasonably request, but solely to the extent that such access and disclosure would not (i) violate the terms of any agreement to which the Company is bound (provided that upon Parent’s request, the Company will use its best efforts to have such confidentiality restrictions waived or rescinded for the benefit of Parent), (ii) violate any law, (iii) result in any loss of attorney-client or other privilege, or (iv) significantly disrupt the Company’s operations. In addition, subsequent to the date of this Agreement, Parent and/or any of its subsidiaries may initiate communications with any officer or key employee of the Company for the purpose of addressing the prospective retention of such officer or employee following the Closing.

(b) Each of the Company and Parent will hold and will cause its directors, officers, employees, agents, advisors (including, without limitation, counsel and auditors) and controlling persons to hold any such information or data which is nonpublic in confidence on the same terms and conditions as the confidentiality provisions set forth in the Non-Disclosure Agreement, dated as of October 17, 2003, as amended from time to time, between the Company and Parent (the “Confidentiality Agreement”).

(c) No investigation pursuant to this Section 6.1 shall affect any representations or warranties of the parties herein or the conditions to the obligations of the parties hereto.

SECTION 6.2 Notification of Certain Matters. The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of any failure of the Company, Parent or Sub, as the case may be, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 6.2 shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice.

SECTION 6.3 No Solicitation of Transactions. The Company agrees that neither it nor any of its officers, directors or affiliates shall, and that it shall direct and cause its employees, agents and representatives (including any investment banker, attorney or accountant retained by it) (collectively, the “Representatives”) not to, directly or indirectly, initiate, solicit or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal or offer with respect to (a) a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving it, or (b) a purchase or sale of any of the assets or any of the voting securities of it (in either case, other than the Merger or as otherwise permitted by Section 5.1) (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”). The Company further agrees that neither it nor any of its officers, directors or affiliates of it shall, and that it shall direct and cause its Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any person (other than Parent and Sub) relating to an Acquisition Proposal, or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal. In the event an Acquisition Proposal is made, the Company shall promptly notify Parent of such proposal, together with the name of such person and the material terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal, prospective financing or similar transaction or arrangement and use commercially reasonable efforts to cause any parties with whom any such activities, discussions or negotiations have taken place to return or destroy all information regarding the Company shared with any such parties in furtherance of any such activities, discussions or negotiations. The Company agrees that it will use it commercially reasonable efforts to take all necessary steps to promptly inform the individuals or entities referred to in the first sentence of this Section 6.3 of the obligations undertaken in this Section 6.3.

SECTION 6.4 Further Action. From the date hereof, upon the terms and subject to the conditions hereof, each of the parties hereto shall use all commercially reasonable efforts to take, or cause to be taken, all appropriate action, and to do or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement as soon as practicable after the date hereof, including but not limited to using all commercially reasonable efforts to make all required regulatory filings and applications and to obtain all licenses, permits, consents, approvals, authorizations, qualifications and orders of any Governmental Body and parties to contracts with the Company as are required for the consummation of the transactions contemplated by this Agreement and to fulfill the conditions to the Merger; provided that Parent shall not be required to agree to material concessions, other than as set forth in Section 6.11(c).

SECTION 6.5 Public Announcements. Parent and the Company shall consult with each other before issuing any press release or otherwise making any public statements with respect to the Merger and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by law or any listing agreement with its securities exchange. Notwithstanding the foregoing, no party to this Agreement shall publicly disclose the Purchase Price or other financial terms of the Merger, except as the disclosing party may determine in good faith may be required by law or any listing agreement with an applicable securities exchange; provided that following public announcement of the Merger by Parent, the Principal Stockholders may disclose the Merger and the Purchase Price, in a form reasonably acceptable to Parent, to their investors.

SECTION 6.6 Termination of Stock Rights. Prior to the Effective Time, in the event reasonably requested by Parent or required by the Stock Rights or applicable law, the Company shall properly and timely provide to all holders of Stock Rights all notices regarding the treatment of Stock Rights and the actions set forth in Section 2.9 hereof. The Company shall have obtained an opinion from Vinson & Elkins L.L.P., counsel to the Company, to the effect that the options granted under the Stock Incentive Plans should terminate upon the Effective Time, and the optionees under such plans should not have any enforceable claims for continued vesting with respect to those options for matters occurring after the Effective Time.

SECTION 6.7 Indemnification of Company Officers and Directors; Insurance Policies(a) . (a) For a period of five (5) years from and after the Closing Date, Parent and the Surviving Corporation will indemnify (including advancement of expenses) and hold harmless the officers and directors of the Company (who were officers and directors of the Company as of the date hereof) to the same extent such persons are indemnified by the Company as of the date of this Agreement pursuant to the Company’s Certificate of Incorporation or By-Laws, employment agreements, indemnification agreements identified on the Company Disclosure Schedule, insurance policies or under applicable law for acts or omissions which occurred at or prior to the Effective Time; provided, however, that Parent shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 250% of the premiums paid as of the dater hereof by the Company for such insurance policies, as set forth on Section 6.7(a) of the Company Disclosure Schedule, and if such premiums for such insurance would at any time exceed 250% of the Company’s current premium as set forth on Section 6.7(a) of the Company Disclosure Schedule, then Parent shall cause to be maintained policies of insurance which, in Parent’s good faith determination, provide the maximum coverage available at an annual premium equal to 250% of the Company’s current premium as set forth on Section 6.7(a) of the Company Disclosure Schedule. This indemnification shall not apply to any claim or action by any such officer or director brought against the Company or any of its predecessors, successors, assigns, officers, directors, stockholders, employees or agents in response to or in connection with any claim brought by any Indemnitee (as defined below) pursuant to Article IX of this Agreement or any other agreement contemplated by this Agreement. The Company hereby represents to Parent that no claim for indemnification has been made by any director or officer of the Company and, to the Knowledge of the Company, no basis exists for any such claim for indemnification.

(b) The provisions of this Section 6.7 are intended for the benefit of, and shall be enforceable by, the officers and directors of the Company (who were officers and directors of the Company as of the date hereof) and his or her heirs and representatives. The rights of officers and directors of the Company (who were officers and directors of the Company as of the date hereof) under this Section 6.7 are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract, applicable law or otherwise.

SECTION 6.8 Payment Schedule. Prior to the Closing Date, the Company and the Shareholder Representative shall prepare a schedule (the “Payment Schedule”) showing the amount of cash to be paid to each of the Shareholders as of the Effective Time. The Payment Schedule shall be delivered to Parent promptly after the date hereof and in no event later than two (2) business days prior to the Closing.

SECTION 6.9 Cooperation(a) . (a) The Company shall provide and shall cause its Affiliates to provide, reasonable assistance to Parent’s efforts to obtain financing, including facilitating customary due diligence and arranging for senior officers of the Company to meet with prospective lenders in customary presentations or to participate in customary road shows, in each case upon Parent’s request with reasonable prior notice and at Parent’s cost and expense. At Parent’s cost and expense, the Company shall, and shall cause its Affiliates to, use commercially reasonable efforts to cause their respective accountants and attorneys to provide customary assistance in such financing.

(b) The Company will deliver to Parent and Sub (i) the audited balance sheets of the Company as at December 31, 2002 and December 31, 2003, and audited statements of income and cash flows of the Company for the twelve months ended December 31, 2001, December 31, 2002 and December 31, 2003, together with an opinion of the Company’s independent accounting firm, PricewaterhouseCoopers LLP (“PWC”), containing no exceptions or qualifications (collectively, such financial statements of the Company, together with the notes thereto, the “Company Audited Financial Statements”) and (ii) as soon as practicable following the completion of a review by PWC as provided in statement of accounting standards No. 100 but in no event later than 15 Business Days prior to the Closing Date, an unaudited balance sheet of the Company as at March 31, 2004 and an unaudited statement of income for the three months ended March 31, 2004 (the “Company Unaudited Financial Statements” and, together with the Company Audited Financial Statements, the “Company Financial Statements”). The Company Financial Statements will be prepared in accordance with GAAP and Regulation S-X under the Securities Act.

(c) The Company will deliver to Parent and Sub, promptly upon their being prepared (and in any event no later than 45 days after the end of each calendar quarter), true and complete copies of the unaudited balance sheets and statements of income and cash flow of the Company as of each calendar quarter beginning with the calendar quarter ending on June 30, 2004 and unaudited balance sheets and statements of income and cash flow for the year-to-date period then ended along with comparative historical information for the preceding year (which shall have been reviewed by PWC as provided in statement of accounting standards No. 100 without exception or qualification, which review shall be at Parent’s expense).

SECTION 6.10 Discharge of Indebtedness. Prior to the Closing, the Company shall fully satisfy any Indebtedness for borrowed money of the Company and cause the release of all Liens in connection with such Indebtedness, and provide Parent with documentation, reasonably satisfactory to Parent, evidencing that neither of Parent nor the Company is or shall be subject to any liability or obligation with respect to such Indebtedness.

SECTION 6.11 HSR Act Review.

(a) As soon as reasonably practicable, but no later than thirty (30) days following the date of this Agreement, the parties shall make such filings as may be required by the HSR Act with respect to the transactions contemplated by this Agreement and the Transaction Documents. Thereafter, the parties shall file as promptly as practicable all reports or other documents required or requested by the U.S. Federal Trade Commission or the U.S. Department of Justice pursuant to the HSR Act or otherwise including requests for additional information concerning such transactions, so that the waiting period specified in the HSR Act will expire as soon as reasonably possible after the execution and delivery of this Agreement. Without limiting the foregoing, each of Parent and the Company shall use commercially reasonable efforts to cooperate and oppose any preliminary injunction sought by any Governmental Body preventing the consummation of the transactions contemplated by this Agreement and the Transaction Documents. Parent shall pay all application fees required in connection with any filings under the HSR Act.

(b) Parent and the Company shall each cause their respective counsel to furnish the other party such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of necessary filings or submissions under the provisions of the HSR Act. Parent and the Company shall each cause their respective counsel to supply to the other party copies of all correspondence, filings or written communications by such party or its Affiliates with any Governmental Body or staff members thereof, with respect to the transactions contemplated by this Agreement and the Transaction Documents, except for documents filed pursuant to Item 4(c) of the HSR Notification and Report Form or communications regarding the same, documents or information submitted in response to any request for additional information or documents pursuant to the HSR Act which reveal Parent’s or the Company’s negotiating objectives, strategies or purchase price expectations.

(c) Without limiting the provisions set forth above, each of Parent and the Company shall use its commercially reasonable efforts to take or cause to be taken actions necessary to obtain the termination of any waiting period under, or any consent, waiver, approval or authorization relating to, any antitrust or other regulatory laws (including the HSR Act) that is required for the consummation of the transactions contemplated hereby.

SECTION 6.12 Interim Financing Note. In the event the Company requires additional capital or financing between the date hereof and the Closing Date to fund its existing business plan, Parent agrees to lend the Company five million dollars ($5,000,000) (or any lesser amount requested by the Company), in accordance with the terms and conditions of the form of note set forth on Exhibit C hereto (the “Interim Financing Note”). In the event Parent breaches it obligations under this Section, the Company will be permitted, notwithstanding any provision of this Agreement to the contrary, to secure debt financing from third-parties up to an amount equal to five million dollars ($5,000,000) minus the amount actually loaned by Parent to the Company pursuant to this Section.

SECTION 6.13 Financial Statements and Reports. Within ten (10) days of the end of each month from the date hereof until the Closing, the Company shall provide Parent with an unaudited balance sheet of the Company as of the end of such month and the related statements of operations and cash flows for the periods then ended, each prepared in accordance with GAAP.

SECTION 6.14 Covenant Regarding IP Contested Matters. With respect to the IP Contested Matters, the Shareholders agree to hold harmless and indemnify the Company pursuant to the indemnification terms and conditions set forth in Article IX with respect to any reasonable and necessary attorneys fees and legal expenses incurred by the Company in connection with such IP Contested Matters and any Damages (including, for the avoidance of doubt, the Present Value of any ongoing royalties, license or other fees or concessions agreed to by Parent or the Company in connection with the resolution of any IP Contested Matter) that are directly or indirectly suffered or incurred by any of the Indemnitees as a result of such IP Contested Matters. “IP Contested Matters” means (a) all existing third party claims made against the Company with respect to Intellectual Property as of the date of this Agreement, which are set forth on Schedule 6.14; and (b) any third party claims made against the Company with respect to Intellectual Property owned by a third party that are pending as of the date hereof or that are asserted against the Company within one year of the Closing Date, whether or not the Company or Parent has Knowledge of such claims as of the date of this Agreement. “Present Value” means the present value for five (5) years worth of expenses to be calculated in accordance with the sales forecast presented by the Company to Parent, a copy of which is attached hereto as Exhibit D, and discounting such expenses using Parent’s weighted average cost of capital. The amount of the obligation of the Shareholders under this Section 6.14 shall be expressly limited and governed by the indemnification terms and conditions set forth in Article IX.

SECTION 6.15 Tax Matters. Immediately prior to the Closing the Company shall furnish to Parent a certification dated as of the Closing Date and in accordance with Treasury Regulation Section 1.1445-2(c), and otherwise in form and substance reasonably satisfactory to Parent, certifying that an interest in the Company is not a United States real property interest because the Company is not and has not been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

ARTICLE VII.

CONDITIONS OF MERGER

SECTION 7.1 Conditions to Obligation of Each Party to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Closing Date of the following conditions:

(a) This Agreement shall have been adopted by the requisite vote of the holders of the Company Stock as set forth in Section 3.14;

(b) No statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or Governmental Body of competent jurisdiction which prohibits, restrains, enjoins or restricts the consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted; and

(c) The waiting period under the HSR Act relating to the transactions contemplated hereby shall have expired or been earlier terminated.

SECTION 7.2 Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Closing Date of the following additional conditions:

(a) Parent and Sub shall have performed or complied with in all material respects their agreements and covenants contained in this Agreement required to be performed or complied with at or prior to the Closing Date. The Company shall have received a closing certificate signed on behalf of Parent by an authorized officer of Parent (the “Parent Officer’s Certificate”) to such effect;

(b) The representations and warranties of Parent and Sub contained in this Agreement shall be true in all respects on and as of the Closing Date with the same force and effect as if made on and as of such date (except to the extent in any case that such representations and warranties speak as of another date, in which case such representations and warranties shall be true as of that specific date); provided, however, that this condition shall be deemed to have been satisfied so long as any failure of such representations and warranties to be true and correct in all respects, would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. The Company shall have received a Parent Officer’s Certificate to such effect.

(c) Each of Parent, Sub and the Escrow Agent shall have executed the Escrow Agreement and such agreement shall be in full force and effect.

SECTION 7.3 Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Closing Date of the following additional conditions:

(a) The Company shall have performed or complied with in all material respects its agreements and covenants contained in this Agreement required to be performed or complied with at or prior to the Closing Date. Parent shall have received a closing certificate signed on behalf of the Company by an authorized officer of the Company (the “Company Officer’s Certificate”) to such effect.

(b) The representations and warranties of the Company contained in this Agreement shall be true in all respects on and as of the Closing Date with the same force and effect as if made on and as of such date (except to the extent in any case that such representations and warranties speak as of another date, in which case such representations and warranties shall be true as of that specific date); provided, however, that this condition shall be deemed to have been satisfied so long as any failure of such representations and warranties to be true and correct in all respects, would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, further, that for purposes of this Section only, a Company Material Adverse Effect shall be deemed to be triggered if any change, event or effect contemplated by the definition of Company Material Adverse Effect would, individually or in the aggregate, reasonably be expected to result in Damages equal to $10 million or more, excluding any change, event or effect relating to (i) any inaccuracy in or breach of any representation or warranty set forth in Section 3.25 or Section 3.26 hereof and (ii) any actual or threatened suit, action or proceeding by a third-party. Parent shall have received a Company Officer’s Certificate to such effect.

(c) At any time on or after the date of this Agreement there shall not have occurred and be continuing a Company Material Adverse Effect.

(d) The lender under the Financing Commitment Letter shall have consummated the Debt Financing on the terms and conditions set forth therein (without the waiver of any terms or provisions not consented to by Parent) or Parent shall have otherwise obtained an amount of financing not less than the amount contemplated by the Financing Commitment Letter;

(e) As of the Closing, at least 75% of the workforce of the Company as of the date hereof (excluding employees who have been specifically excluded by the Purchaser in a writing delivered from the Purchaser to the Company prior to the date hereof but including those who have prior to the date hereof entered into amendments to their existing nondisclosure agreements with the Company, each of which contains a noncompetition provision) shall be employed by the Company;

(f) If requested by Parent prior to the Closing, the Company shall have, effective as of the Closing, properly terminated the Company’s contracts with each of Marubeni Corporation and Hitrax Co;

(g) Parent shall have received the following agreements and documents, each of which shall be in full force and effect:

(i) the Escrow Agreement;

(ii) written documentation reasonably satisfactory to Parent evidencing the Company’s discharge of all Indebtedness for borrowed money pursuant to Section 6.10; and

(h) There shall not be pending by any Governmental Body any suit, action or proceeding, (i) challenging or seeking to enjoin or prohibit the consummation of the Merger or seeking to obtain from Parent or any of its subsidiaries any material damages in connection with the transactions contemplated hereby, (ii) seeking to enjoin or prohibit the ownership or operation by the Company, Parent or any of their respective subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective subsidiaries, to dispose of or hold separate any significant portion of the business or assets of the Company, Parent or any of their respective subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (iii) seeking to enjoin or prohibit Parent or any of its subsidiaries from controlling in any material respect the business or operations of the Company.

ARTICLE VIII.

TERMINATION, AMENDMENT AND WAIVER

SECTION 8.1 Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Closing Date (except as otherwise stated herein):

(a) By mutual written consent of Parent and the Company;

(b) By either Parent or the Company, if the Merger shall not have been consummated on or before December 31, 2004 (other than due to the failure of the party seeking to terminate this Agreement to perform its obligations under this Agreement required to be performed at or prior to the Effective Time);

(c) By either Parent or the Company if any court or other Governmental Body of competent jurisdiction shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;

(d) By the Company if prior to the Closing Date (i) there shall have been a breach of any representation or warranty on the part of Parent or Sub contained in this Agreement which would reasonably be expected to result in a closing condition not being satisfied, or (ii) there shall have been a breach of any covenant or agreement on the part of Parent or Sub contained in this Agreement which would reasonably be expected to result in a closing condition not being satisfied, which breach, in either case, shall not have been cured prior to 30 days following notice thereof; or

(e) By Parent if prior to the Closing Date (i) there shall have been a breach of any representation or warranty on the part of the Company contained in this Agreement which would reasonably be expected to result in a closing condition not being satisfied, or (ii) there shall have been a breach of any covenant or agreement on the part of the Company contained in this Agreement which would reasonably be expected to result in a closing condition not being satisfied, which breach, in either case, shall not have been cured prior to 30 days following notice thereof.

(f) By either Parent or the Company in the event that the Financing Commitment Letter is terminated in accordance with the conditions set forth in clause (b) of the eighth paragraph thereof or any of paragraphs 6, 7, 10 of Exhibit B thereto thereof and Parent fails to arrange for a new financing commitment in the same or greater principal amount prior to such termination of the Financing Commitment Letter.

(g) By either Parent or the Company in the event that the Financing Commitment Letter is terminated in accordance with the conditions set forth in clause (c) of the eight paragraph thereof.

(h) By either Parent or the Company on the day that is five business days after the condition with respect to the HSR Act set forth in Section 7.1(c) shall have been satisfied, provided that the terminating party is not then in breach of any representation, warranty, covenant or agreement contained in this Agreement which would reasonably be expected to result in a closing condition not being satisfied.

SECTION 8.2 Effect of Termination. In the event of termination of this Agreement pursuant to Section 8.1 (a), (b), (c), (f) or (g), this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto except as set forth in Sections 6.1(b) and 10.5 and Articles VII and VIII; provided, however, that nothing herein shall relieve any party from liability for any breach hereof.

SECTION 8.3 Amendment. This Agreement may be amended by the parties hereto by action taken by or on behalf of their respective Boards of Directors at any time before or after any required approval of matters presented in connection with the Merger by the Shareholders; provided, however, that after any such approval, there shall be made no amendment that by law requires further approval by such Shareholders without the further approval of such Shareholders. This Agreement may not be amended except by an instrument in writing signed by the parties hereto.

SECTION 8.4 Waiver. At any time prior to the Closing Date, any party hereto may (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions contained herein, subject to the requirements of applicable law. Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the party or parties to be bound thereby. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.

ARTICLE IX.

INDEMNIFICATION

SECTION 9.1 Survival(a) . (a) The representations and warranties made by the Company set forth in Article III shall survive the Closing and shall expire on the first anniversary of the Closing Date (the “Termination Date”) and any liability of the Company with respect to such representations and warranties shall thereupon cease, provided that if, at any time prior to the Termination Date, any Indemnitee (acting in good faith) delivers to the Shareholder Representative a written notice alleging facts and circumstances that could reasonably be expected to cause the existence of an inaccuracy in or a breach of any of the representations and warranties made by the Company set forth in Article III (and setting forth in reasonable detail the basis for such Indemnitee’s belief that such an inaccuracy or breach may exist) and asserting a claim for recovery under Section 9.2 based on such alleged inaccuracy or breach, then the claim asserted in such notice shall survive the Termination Date until such time as such claim is fully and finally resolved. All representations and warranties made by Parent and Sub shall terminate and expire as of the Closing Date, and any liability of Parent or Sub with respect to such representations and warranties shall thereupon cease. The covenants and agreements of Parent, Sub or the Company, as the case may be, shall survive until the expiration of the time period for their performance as provided herein.

(b) For purposes of this Agreement, each statement or other item of information set forth in the Company Disclosure Schedule shall be deemed to be a representation and warranty made by the Company in this Agreement.

SECTION 9.2 Indemnification(a) . (a) Subject to Section 9.4, from and after the Closing Date (but subject to Section 9.1(a)), the Shareholders (the “Indemnitors”), shall hold harmless and indemnify each of the Indemnitees from and against, and the Indemnification Escrow Amount shall be available to compensate and reimburse each of the Indemnitees for, any Damages that are suffered or incurred by any of the Indemnitees or to which any of the Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise from or as a result of: (i) any IP Contested Matters and any inaccuracy in or breach of any representation or warranty set forth in Article III (without giving effect to any Company Material Adverse Effect or other materiality qualification or any similar qualification contained or incorporated directly or indirectly in such representation or warranty), (ii) any breach of any agreement or covenant of the Company set forth in this Agreement, or (iii) any Legal Proceeding relating to any breach of the type referred to in clauses (i) or (ii) above (including any Legal Proceeding commenced by any Indemnitee for the purpose of enforcing any of its rights under this Article IX). Notwithstanding anything to the contrary, amounts to be paid by the Indemnitors in connection with their indemnification obligations shall not exceed the Indemnification Escrow Amount.

(b) The Indemnitors shall not be required to make any indemnification payment pursuant to Section 9.2 until such time as the total amount of all Damages that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds $1,000,000 in the aggregate (the “Indemnity Deductible”) and then liability for Damages in excess of the Indemnity Deductible shall be as follows: (i) the first $8,000,000 of Damages in excess of the Indemnity Deductible shall be borne 75% by the Indemnitors and 25% by the Surviving Corporation, (ii) the next $8,000,000 of Damages shall be borne 75% by the Surviving Corporation and 25% by the Indemnitors, (iii) the next $10,600,000 of Damages shall be borne 75% by the Indemnitors and 25% by the Surviving Corporation, and (iv) all additional Damages shall be borne by the Surviving Corporation. Notwithstanding anything to the contrary, in the event the matters set forth in Section 9.2(b) of the Company Disclosure Schedule (the “Schedule 9.2(b) Matters”) result in any liability for payment in excess of $100,000, up to $400,000 of such excess (the “Special Excess”) shall be paid by the Indemnitors, without being subject to the Deductible, as follows: the Special Excess shall be deemed to be paid from clause (iii) above such that the $10,600,000 set forth in clause (iii) above shall be recalculated to be an amount equal to (A) $8 million minus the Special Excess, divided by (B) 0.75, with the result of such recalculation then being borne 75% by the Indemnitors and 25% by the Surviving Corporation in accordance with clause (iii) above. In the event the Schedule 9.2(b) Matters result in any liability for payment, in the aggregate, in excess of $500,000 (such that the liability is in excess of the $100,000 and Special Excess amounts referred to in the previous sentence), all such amounts in excess of $500,000 shall be treated as Damages to be paid for in accordance with the first sentence of this Section, subject to the Indemnification Deductible and other limitations of the first sentence of this Section and the other provisions of this Article IX.

SECTION 9.3 Exclusive Remedy. WITH THE EXCEPTION OF CLAIMS BASED UPON FRAUD (IN WHICH CASE THE INDEMNITORS SHALL BE SEVERALLY BUT NOT JOINTLY LIABLE AND IN NO EVENT FOR AN AMOUNT IN EXCESS OF ANY CONSIDERATION ACTUALLY RECEIVED IN THE MERGER), FROM AND AFTER THE CLOSING, RECOURSE OF THE INDEMNITEES TO THE INDEMNIFICATION ESCROW AMOUNT PURSUANT TO THIS AGREEMENT AND THE ESCROW AGREEMENT SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF THE INDEMNITEES AGAINST THE COMPANY OR ANY OF THE COMPANY’S OFFICERS, DIRECTORS, REPRESENTATIVES OR AGENTS (WHO WERE OFFICERS, DIRECTORS, REPRESENTATIVES OR AGENTS OF THE COMPANY AS OF THE DATE HEREOF) FOR ANY DAMAGES INCURRED OR SUFFERED PURSUANT TO THIS AGREEMENT OR IN CONNECTION WITH OR ARISING OUT OF THE MERGER. ANY DISTRIBUTION OF A PORTION OF THE INDEMNIFICATION ESCROW AMOUNT TO SATISFY A CLAIM HEREUNDER SHALL BE DONE SO AS TO REDUCE THE INDEMNIFICATION ESCROW AMOUNT IN ACCORDANCE WITH THE ESCROW AGREEMENT. ANY AMOUNTS REMAINING OUT OF THE INDEMNIFICATION ESCROW AMOUNT UPON TERMINATION OF THE ESCROW AGREEMENT SHALL BE DISTRIBUTED TO THE INDEMNITORS IN ACCORDANCE WITH THE ESCROW AGREEMENT. THE AMOUNT OF INDEMNIFIABLE DAMAGES REQUIRED TO BE PAID BY THE INDEMNITORS TO THE INDEMNITEES FROM THE INDEMNIFICATION ESCROW AMOUNT SHALL BE REDUCED BY THE AMOUNT OF (OR IF ALREADY PAID TO THE INDEMNITEES, PROMPTLY REPAID TO THE INDEMNIFICATION ESCROW AMOUNT IN THE AMOUNT OF) ANY RECOVERIES ACTUALLY RECEIVED BY THE INDEMNITEES UNDER INSURANCE POLICIES OR VIA CONTRIBUTION OR OTHER RELATED PAYMENTS RECEIVED FROM THIRD PARTIES. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS ARTICLE IX SHALL BE CONSTRUED OR INTERPRETED TO REQUIRE ANY INDEMNITEE TO FIRST SEEK REIMBURSEMENT OF ANY DAMAGES INCURRED BY SUCH INDEMNITEE FROM ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION UNDER ANY INSURANCE POLICIES. THE INDEMNITEES SHALL TAKE ALL REASONABLE ACTIONS REASONABLY NECESSARY TO MITIGATE ANY INDEMNIFIABLE DAMAGES IN CONNECTION WITH AN INDEMNITY CLAIM MADE PURSUANT TO THIS ARTICLE IX.

SECTION 9.4 No Contribution. No Indemnitor shall have any right of contribution, right of indemnity or other right or remedy against the Company in connection with any indemnification obligation or any other liability to which she, he or it may become subject under or in connection with this Agreement.

SECTION 9.5 Defense of Third Party Claims. In the event of the assertion or commencement by any Person of any claim or Legal Proceeding (whether against the Company, Parent or against any other Person) with respect to which any of the Indemnitors may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Article IX, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own. If Parent so proceeds with the defense of any such claim or Legal Proceeding:

(a) all reasonable out-of-pocket expenses relating to the defense of such claim or Legal Proceeding by counsel reasonably satisfactory to the Shareholder Representative shall be borne and paid exclusively from the Escrowed Funds;

(b) subject to any confidentiality restrictions to which any Indemnitor may be subject (provided that upon Parent’s request, any such Indemnitor will use its best efforts to have such confidentiality restrictions waived or rescinded for the benefit of Parent), each Indemnitor shall make available to Parent any documents and materials in his, her or its possession or control that reasonably may be necessary to the defense of such claim or Legal Proceeding; and

(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding with the written consent of the Shareholder Representative; provided, however, that such consent shall not be unreasonably withheld.

(d) Parent shall give the Shareholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent or the Company; provided, however, that any failure on the part of Parent to so notify the Shareholder Representative shall not limit any of the obligations of the Indemnitors under this Article IX (except to the extent such failure materially prejudices the defense of such Legal Proceeding). Parent shall conduct the defense of such claim or Legal Proceeding diligently and in good faith using all reasonable means and defenses available to it or to the Company. The Shareholder Representative shall have the right, if it so notifies Parent with reasonable promptness after receipt of Parent’s claim notice, to assist at its own expense and with counsel of its choice (in each case, consistent with Section 10.2) in the defense of such claim or Legal Proceeding by Parent (or in the case of a claim or Legal Proceeding against the Company, by the Company). In such event, Parent shall afford the Shareholder Representative and its counsel a reasonable opportunity to comment and the right to object (which right shall not be unreasonably exercised) with respect to the conduct of the defense of such claim or Legal Proceeding. Parent shall keep the Shareholder Representative reasonably informed of the progress of any claim or Legal Proceeding and its defense, and shall with reasonable promptness provide the Shareholder Representative with copies of all material notices, written communications and filings (including court papers) made by or on behalf of any of the parties to the underlying claim or Legal Proceeding. Neither Parent nor any other Indemnitee may settle, adjust or compromise any claim or Legal Proceeding without the prior written consent of the Shareholder Representative (which consent may not be unreasonably withheld). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Shareholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent. In such case, Parent or such other Indemnitee will cooperate in the defense of such claim or Legal Proceeding and will provide reasonable access to documents, assets, properties, books and records reasonably requested by the Shareholder Representative and to all officers, directors and employees reasonably requested by the Shareholder Representative for investigation, depositions and trial; provided, however, that the Shareholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of the Parent (which consent may not be unreasonably withheld).

ARTICLE X.

GENERAL PROVISIONS

SECTION 10.1 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given upon delivery in person, by cable, telecopy, telegram or telex or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified by like notice):

if to Parent or Sub:

Symbol Technologies, Inc.

One Symbol Plaza

Holtsville, New York 11742

Attention: General Counsel

Fax: (631) 738-5980

with a copy to:

Latham & Watkins LLP

885 Third Avenue

New York, New York 10022

Attention: Charles Nathan, Esq.

Fax: (212) 751-4864

if to the Company:

Matrics, Inc.

7361 Calhoun Place, Suite 250

Rockville, Maryland 20855

Attention: Chief Executive Officer

Fax:

with a copy to:

Vinson & Elkins L.L.P.

666 Fifth Avenue, Floor 26

New York, New York 10103

Attention: Michael Swidler, Esq.

Fax: (212) 237-0100

SECTION 10.2 Shareholder Representative. Based on the approval and appointment set forth in the Written Consents, without any further act of any Shareholder being necessary, Mark Ein hereby accepts its appointment and agrees to act as the Shareholder Representative for the Indemnitors for purposes of all matters relating to Article IX hereof and the Escrow Agreement, including without limitation, the power to execute and deliver the Escrow Agreement on behalf of the Shareholders. The Shareholders shall be bound by all actions taken by the Shareholder Representative on all matters relating to Article IX hereof and the Escrow Agreement, and Parent shall be entitled to deal exclusively with the Shareholder Representative on all such matters and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder or Indemnitor by the Shareholder Representative with respect thereto, and on any other action taken or purported to be taken on behalf of any Shareholder or Indemnitor by the Shareholder Representative with respect thereto, as fully binding upon such Shareholder or Indemnitor. If a majority of the Principal Stockholders shall determine to remove the Shareholders’ Representative or the Shareholders’ Representative shall resign, die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Shareholders and Indemnitors, then the Shareholders shall, within ten days after such determination to remove, death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become the “Shareholder Representative” in accordance with this Section 10.2. If for any reason there is no Shareholder Representative at any time, all references herein to the Shareholder Representative shall be deemed to refer to the Shareholders. The Shareholder Representative shall be reimbursed out of the Escrowed Funds for its reasonable out-of-pocket expenses incurred in connection with serving as the Shareholder Representative under this Agreement and the Escrow Agreement. The Shareholder Representative shall at all times act in his capacity as Shareholder Representative in a manner that the Shareholder Representative believes to be in the best interest of the Indemnitors. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative except for gross negligence, bad faith or willful misconduct on the part of Shareholder Representative. The Shareholder Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Shareholder Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Shareholder Representative shall not exercise any discretion or take any action. The Shareholders shall severally (but not jointly) indemnify Shareholder Representative and hold Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of Shareholder Representative and arising out of or in connection with the acceptance or administration of Shareholder Representative’s duties hereunder and under the Escrow Agreement, including the reasonable fees and expenses of any legal counsel retained by Shareholder Representative. Notwithstanding the foregoing, in no event shall any Shareholder be liable under this Section 10.2 for any amount in excess of any consideration actually received in the Merger. This Section 10.2 shall survive the termination of this Agreement.

SECTION 10.3 Further Assurances. Each party hereto shall execute and cause to be delivered to each other party hereto such instruments and other documents, and shall take such other actions, as such other party may reasonably request (prior to, at or after the Closing) for the purpose of carrying out or evidencing any of the transactions contemplated by this Agreement, including the filing by Parent with the SEC of a Registration Statement on Form S-1.

SECTION 10.4 Fees And Expenses. Subject to Section 10.2, each party hereto shall bear its own costs, expenses and fees in connection with the Merger.

SECTION 10.5 Attorneys’ Fees. If any action or proceeding relating to this Agreement or the enforcement of any provision of this Agreement is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).

SECTION 10.6 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.

SECTION 10.7 Entire Agreement; Assignment. This Agreement, together with the Escrow Agreement, the Written Consents and the Confidentiality Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. This Agreement shall not be assigned by operation of law or otherwise, except that Parent and Sub may assign all or any of their respective rights and obligations hereunder (i) to any lender providing financing in connection with the transactions contemplated hereby and (ii) to any direct or indirect wholly owned subsidiary or subsidiaries of Parent, provided that no such assignment shall relieve the assigning party of its obligations hereunder if such assignee does not perform such obligations. Any attempted assignment which does not comply with the provisions of this Section 10.7 shall be null and void ab initio.

SECTION 10.8 Parties in Interest. Except as expressly set forth herein, this Agreement shall be binding upon and inure solely to the benefit of each party hereto and nothing in this Agreement, is intended to or shall confer upon any other person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement.

SECTION 10.9 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the principles of conflicts of laws.

SECTION 10.10 Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.

SECTION 10.11 Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

SECTION 10.12 Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof in addition to any other remedy at law or in equity.

IN WITNESS WHEREOF, Parent, Sub, the Company and, as to Article IX and Section 10.2 of the Agreement only, Mark Ein, as the Shareholder Representative have caused this Agreement to be executed by their respective officers thereunto duly authorized or have executed this Agreement, as the case may be, as of the date first written above.

SYMBOL TECHNOLOGIES, INC.
By: /s/ William Nuti

Name: William Nuti
Title: President and Chief Executive Officer

MARVIN ACQUISITION CORP.
By: /s/ Mark T. Greenquist

Name: Mark T. Greenquist
Title: President

MATRICS, INC.
By: /s/ Piyush Sodha

Name: Piyush Sodha
Title: Chief Executive Officer

SHAREHOLDER REPRESENTATIVE (only as to Article IX and Section 10.2 of this
Agreement)
By: /s/ Mark Ein

Name: Mark Ein

NY\927909.15

EXHIBIT 99.1

SYMBOL TECHNOLOGIES COMPLETES ACQUISITION OF MATRICS, INC.

HOLTSVILLE, N.Y. – September 9, 2004 – Symbol Technologies, Inc. (NYSE:SBL), The Enterprise Mobility Company™, today announced the completion of its acquisition of Matrics, Inc., a leader in EPC (electronic product code)-compliant Radio Frequency Identification (RFID) systems.

As previously announced on July 27, 2004, Symbol purchased Matrics for $230 million in cash. Symbol financed this acquisition with short-term borrowings under a new senior, unsecured bank credit facility and expects to refinance the borrowings in a capital markets equity or equity-linked transaction later this year, market conditions permitting.

“Symbol believes that in order for RFID to fulfill its potential, it needs to be deployed as a system that allows customers to capture, move and manage critical information to and from the point of business activity. Matrics, under the leadership of Chairman and Chief Executive Officer Piyush Sodha, has developed innovative EPC-compliant RFID products, which we believe will serve as the core technology enabling the transition of RFID pilots into broad, enterprise-wide deployments. The addition of Matrics’ end-to-end RFID system into Symbol Technologies’ enterprise mobility architecture will help enable Symbol Technologies to take EPC-based RFID solutions from today’s point products to scalable networked solutions,” said William Nuti, Symbol president and chief executive officer.

“Operationally, our corporate cultures are well aligned, focusing on standards-based innovation, technology leadership and cultivating an entrepreneurial spirit in how we achieve our goals,” Nuti added. “We welcome the Matrics team to the Symbol family and look forward to working together to assist our customers in realizing their goals of increased operational efficiencies and competitive advantage through deployment of enterprise mobility solutions featuring RFID.”

# # #

This press release shall not constitute an offer to sell or the solicitation of an offer to buy any of our securities.

For more information about Symbol, visit www.symbol.com.

About Symbol Technologies

Symbol Technologies, Inc., The Enterprise Mobility Company™, manufactures and services enterprise mobility systems, delivering products and solutions that capture, move and manage information in real time to and from the point of business activity. Symbol enterprise mobility solutions integrate advanced data capture products, radio frequency identification technology, mobile computing platforms, wireless infrastructure, mobility software and services programs under the Symbol Enterprise Mobility Services brand. Symbol enterprise mobility products and solutions are designed to increase workforce productivity, reduce operating costs, drive operational efficiencies and realize competitive advantages for the world’s leading companies. More information is available at www.symbol.com.

This news release contains forward-looking statements based on current expectations, forecasts and assumptions that involve risks and uncertainties that could cause actual outcomes and results to differ materially. These risks and uncertainties include price and product competition, dependence on new product development, reliance on major customers, customer demand for our products and services, control of costs and expenses, international growth, general industry and market conditions and growth rates and general domestic and international economic conditions including interest rate and currency exchange rate fluctuations. For a further list and description of such risks and uncertainties, see the reports filed by Symbol with the Securities and Exchange Commission. Symbol disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.

# # #

For Symbol Technologies:
For media information:
Patricia Hall
Symbol Technologies, Inc.

631.738.5636
hallp@symbol.com

For financial information:

Nancy Tully
Symbol Technologies, Inc.

631.738.5050
tullyn@symbol.com


Delaware	1-9802	112308681
_____________________ (State or other jurisdiction	_____________ (Commission	______________ (I.R.S. Employer
of incorporation)	File Number)	Identification No.)

One Symbol Plaza, Holtsville, NY		11742
_________________________________ (Address of principal executive offices)		___________ (Zip Code)


	Symbol Technologies, Inc. (Registrant)

September 15, 2004	By:	Mark T. Greenquist

		Name: Mark T. Greenquist
		Title: Chief Financial Officer


Exhibit No.		Description

EX-1.1		Bridge Loan Agreement, dated as of September 9, 2004
EX-1.2		Exchange Note Indenture, dated as of September 9, 2004
EX-2.1		Agreement and Plan of Merger, dated as of July 26, 2004
EX-99.1		Press Release dated September 9, 2004


SECTION 11.01. SECTION 11.02. SECTION 11.03. SECTION 11.04. SECTION 11.05. SECTION 11.06. SECTION 11.07. SECTION 11.08. SECTION 11.09. SECTION 11.10. SECTION 11.11. SECTION 11.12. SECTION 11.13. Appendix		Trust Indenture Act Controls Notices Communication by Holders with Other Holders Certificate and Opinion as to Conditions Precedent Statements Required in Certificate or Opinion When Securities Disregarded Rules by Trustee, Paying Agent and Registrar Legal Holidays Governing Law No Recourse Against Others Successors Multiple Originals Table of Contents; Headings

Exhibit A – Exhibit B – Exhibit C – Exhibit D – Exhibit E –		Form of Increasing Rate Note Form of Fixed Rate Note Registration Rights of Holders of Exchange Notes Form of Transferee Letter of Representation Form of Incumbency Certificate


Date of Report (Date of Earliest Event Reported):		September 9, 2004


Registrant’s telephone number, including area code		(631) 738-2400


SECTION 1.01. SECTION 1.02. SECTION 1.03. SECTION 1.04. SECTION 1.05.		Defined Terms Classification of Loans Terms Generally Accounting Terms; GAAP; Pro Forma Calculations Effectuation of Transfers


SECTION 2.01. SECTION 2.02. SECTION 2.03. SECTION 2.04. SECTION 2.05. SECTION 2.06. SECTION 2.07. SECTION 2.08. SECTION 2.09. SECTION 2.10. SECTION 2.11. SECTION 2.12. SECTION 2.13.		Loans [Intentionally Omitted] Procedure for Borrowing and Extension Maturity; Exchange Notes; Extension of Maturity Repayment of Loans; Evidence of Debt Optional and Mandatory Prepayments Interest and Fees Alternate Rate of Interest Increased Costs Break Funding Payments Taxes Payments Generally; Pro Rata Treatment; Sharing of Set-offs Mitigation Obligations; Replacement of Lenders


SECTION 3.01. SECTION 3.02. SECTION 3.03. SECTION 3.04. SECTION 3.05. SECTION 3.06. SECTION 3.07. SECTION 3.08. SECTION 3.09. SECTION 3.10. SECTION 3.11. SECTION 3.12. SECTION 3.13. SECTION 3.14. SECTION 3.15.		Organization; Powers Authorization; Enforceability Governmental Approvals; No Conflicts Financial Condition; No Material Adverse Change Properties Litigation and Environmental Matters Compliance with Laws and Agreements Investment and Holding Company Status Taxes ERISA Disclosure Subsidiaries and Joint Ventures Insurance Labor Matters Solvency


SECTION 5.01. SECTION 5.02. SECTION 5.03. SECTION 5.04. SECTION 5.05. SECTION 5.06. SECTION 5.07. SECTION 5.08. SECTION 5.09. SECTION 5.10. SECTION 5.11. SECTION 5.12. SECTION 5.13. SECTION 5.14. SECTION 5.15. SECTION 5.16.		Financial Statements and Other Information Notices of Material Events Existence; Conduct of Business Payment of Obligations Maintenance of Properties Insurance Books and Records; Inspection and Audit Rights Compliance with Laws Use of Proceeds Equity Offering Exchange Notes Further Assurances Compliance Certificate Future Guarantors SEC Reports Take-Out Financing


SECTION 6.01. SECTION 6.02. SECTION 6.03. SECTION 6.04. SECTION 6.05. SECTION 6.06.		Limitation on Indebtedness Limitation on Restricted Payments Limitation on Restrictions on Distributions from Restricted Subsidiaries Limitation on Sales of Assets and Subsidiary Stock Limitation on Affiliate Transactions Limitation on Line of Business


SECTION 6.08. SECTION 6.09. SECTION 6.10. SECTION 6.11. SECTION 6.12. SECTION 6.13. SECTION 6.14. SECTION 6.15. SECTION 6.16. SECTION 6.17.		Change of Control Limitation on Liens Limitation on Sale/Leaseback Transactions When Borrower May Merge or Transfer Assets Amendment of Material Documents Prohibition on Negative Pledges Leverage Ratio Fixed Charge Coverage Ratio Minimum Unrestricted Cash SAILs Debt


SECTION 7.01. SECTION 7.02.		Events of Default Prior to Initial Maturity Date Events of Default Following Initial Maturity Date


SECTION 9.01. SECTION 9.02. SECTION 9.03. SECTION 9.04. SECTION 9.05. SECTION 9.06. SECTION 9.07. SECTION 9.08. SECTION 9.09. SECTION 9.10. SECTION 9.11. SECTION 9.12. SECTION 9.13.		Notices Waivers; Amendments Expenses; Indemnity; Damage Waiver Successors and Assigns Survival Counterparts; Integration; Effectiveness Severability Right of Setoff Governing Law; Jurisdiction; Consent to Service of Process WAIVER OF JURY TRIAL Headings Confidentiality Interest Rate Limitation


TIA	Indenture
Section	Section
310(a)(1)		7.10

(a)(2)		7.10

(a)(3)		N.A.

(a)(4)		N.A.

(b)		7.08; 7.10

(c)		N.A.

311(a)		7.11

(b)		7.11

(c)		N.A.

312(a)		2.05

(b)		11.03

(c)		11.03

313(a)		7.06

(b)(1)		N.A.

(b)(2)		7.06

(c)		11.02

(d)		7.06

314(a)		4.02;

		11.02


SECTION 10.01. SECTION 10.02. SECTION 10.03. SECTION 10.04. SECTION 10.05. SECTION 10.06. SECTION 10.07.		Guaranties Limitation on Liability Successors and Assigns No Waiver Modification Release of Subsidiary Guarantor Contribution


SECTION 1.01. SECTION 1.02. SECTION 1.03. SECTION 1.04.		Definitions. Other Definitions. Incorporation by Reference of Trust Indenture Act Rules of Construction


SECTION 2.01. SECTION 2.02. SECTION 2.03. SECTION 2.04. SECTION 2.05. SECTION 2.06. SECTION 2.07. SECTION 2.08. SECTION 2.09. SECTION 2.10. SECTION 2.11. SECTION 2.12. SECTION 2.13. SECTION 2.14. SECTION 2.15. SECTION 2.16.		Principal Amount and Maturity Interest Rates Transferability Procedure for Exchange Form and Dating Execution and Authentication Registrar and Paying Agent Paying Agent To Hold Money in Trust Securityholder Lists Transfer and Exchange Replacement Securities Outstanding Securities Temporary Securities Cancellation Defaulted Interest CUSIP and ISIN Numbers


SECTION 3.01. SECTION 3.02. SECTION 3.03. SECTION 3.04. SECTION 3.05. SECTION 3.06.		Mandatory and Optional Redemption Selection of Securities to Be Redeemed Notice of Redemption Effect of Notice of Redemption Deposit of Redemption Price Securities Redeemed in Part


SECTION 4.01. SECTION 4.02. SECTION 4.03. SECTION 4.04. SECTION 4.05. SECTION 4.06. SECTION 4.07. SECTION 4.08. SECTION 4.09. SECTION 4.10. SECTION 4.11. SECTION 4.12. SECTION 4.13. SECTION 4.14. SECTION 4.15. SECTION 4.16. SECTION 4.17.		Payment of Securities SEC Reports Limitation on Indebtedness Limitation on Restricted Payments Limitation on Restrictions on Distributions from Restricted Subsidiaries Limitation on Sales of Assets and Subsidiary Stock Limitation on Affiliate Transactions Limitation on Line of Business Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries Change of Control Limitation on Liens Limitation on Sale/Leaseback Transactions Future Guarantors Compliance Certificate Further Instruments and Acts SAILS Debt Take-Out Financing


SECTION 6.01. SECTION 6.02. SECTION 6.03. SECTION 6.04. SECTION 6.05. SECTION 6.06. SECTION 6.07. SECTION 6.08. SECTION 6.09. SECTION 6.10. SECTION 6.11.		Events of Default Acceleration Other Remedies Waiver of Past Defaults Control by Majority Limitation on Suits Rights of Holders to Receive Payment Collection Suit by Trustee Trustee May File Proofs of Claim Undertaking for Costs Waiver of Stay or Extension Laws


SECTION 7.01. SECTION 7.02. SECTION 7.03. SECTION 7.04. SECTION 7.05. SECTION 7.06. SECTION 7.07. SECTION 7.08. SECTION 7.09. SECTION 7.10. SECTION 7.11.		Duties of Trustee Rights of Trustee Individual Rights of Trustee Trustee’s Disclaimer Notice of Defaults Reports by Trustee to Holders Compensation and Indemnity Replacement of Trustee Successor Trustee by Merger Eligibility; Disqualification Preferential Collection of Claims Against Company


SECTION 8.01. SECTION 8.02. SECTION 8.03. SECTION 8.04. SECTION 8.05. SECTION 8.06.		Discharge of Liability on Securities; Defeasance Conditions to Defeasance Application of Trust Money Repayment to Company Indemnity for Government Obligations Reinstatement


SECTION 9.01. SECTION 9.02. SECTION 9.03. SECTION 9.04. SECTION 9.05. SECTION 9.06. SECTION 9.07.		Without Consent of Holders With Consent of Holders Compliance with Trust Indenture Act Revocation and Effect of Consents and Waivers Notation on or Exchange of Securities Trustee To Sign Amendments Payment for Consent


	Defined in
Term	Section
{r}
“Affiliate Transaction”		4.07	(a)
“Bankruptcy Law”		6.01
“Change of Control Offer”		4.10	(b)
“covenant defeasance option”		8.01	(b)
“Custodian”		6.01
“Depositary”	Annex
“Event of Default”		6.01
“Guaranteed Obligations”		10.01
“Initial Lien”		4.11
“legal defeasance option”		8.01	(b)
“Offer”		4.06	(b)
“Offer Amount”		4.06	(c)(2)
“Offer Period”		4.06	(c)(2)
“Paying Agent”		2.03
“Purchase Date”		4.06	(c)(1)
“Registrar”		2.03
“Successor Company”		5.01	(a)(1)