(b) Each Cash Management Bank shall establish and maintain Cash Management Agreementswith Agent and the applicable Obligor, in form and substance reasonably acceptable toAgent. Each such Cash Management Agreement shall provide, among other things, that(a) the Cash Management Bank will comply with any instructions originated by Agentdirecting the disposition of the funds in such Cash Management without furtherconsent by the applicable Obligor, (b) the Cash Management Bank has no rights ofsetoff or recoupment or any other claim against the applicable Cash ManagementAccount other than for payment of its service fees and other charges directly relatedto the administration of such Cash Management Account and for returned checks orother items of payment, and (c) upon the instruction of the Agent (an “ActivationInstruction”), the Cash Management Bank will forward by daily sweep all amountsin the applicable Cash Management Account to the Agent’s Account. Agent agrees notto issue an Activation Instruction with respect to the Cash Management Accountsunless a Triggering Event has occurred and is continuing at the time such ActivationInstruction is issued. Agent agrees to use commercially reasonable efforts topromptly rescind an Activation Instruction (the “Rescission”) if: (x) theTriggering Event upon which such Activation Instruction was issued has been waived inwriting in accordance with the terms of this Agreement, and (y) no additionalTriggering Event has occurred and is continuing prior to the date of the Rescission.(c) So long as no Default or Event of Default has occurred and is continuing,Borrower may amend Schedule 2.7(a) to add or replace a Cash Management Bankor Cash Management Account; provided, however, that (i) suchprospective Cash Management Bank shall be reasonably satisfactory to Agent, and (ii)prior to the time of the opening of such Cash Management Account, the applicableObligor and such prospective Cash Management Bank shall have executed and deliveredto Agent a Cash Management Agreement, in form and substance reasonably acceptable toAgent. Parent shall and shall cause each Obligor to close any of its Cash ManagementAccounts (and establish replacement Cash Management Account accounts in accordancewith the foregoing sentence) as promptly as practicable and in any event within 60days of notice from Agent that the operating performance, funds transfer, oravailability procedures or performance of the Cash Management Account Bank withrespect to Cash Management Accounts or Agent’s liability under any Cash ManagementAgreement with such Cash Management Bank is no longer acceptable in Agent’sreasonable judgment; and(d) Each Cash Management Account shall be a cash collateral account subject to aControl Agreement.(d) Section 6.16(b) of the Credit Agreement is hereby amended in its entirety to readsas follows:(b) [Reserved](e) The following definitions in Schedule 1.1 of the Agreement are hereby amended toread as follows:“Base Rate” means, the greatest of: (i) the LIBOR Rate for a90 day Interest Period as determined on the date of determination,plus 1.0%, and (ii) the rate of interest announced, from time totime, within Wells Fargo at its principal office in San Francisco asits “prime rate”, with the understanding that the “prime rate” is oneof Wells Fargo’s base rates (not necessarily the lowest of suchrates) and serves as the basis upon which effective rates of interestare calculated for thoseloans making reference thereto and is evidenced by the recordingthereof after its announcement in such internal publications as WellsFargo may designate.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidentialinformation subject to the confidentiality request. Omissions are designated by the symbol [***].A complete version of this document has been filed separately with the Securities and Exchange Commission.
 
 

 
“Base Rate Margin” means 1.75 percentage points.“Lender Group Expenses” means, subject to the terms andprovisions of the Fee Letter, all (a) costs or expenses (includingtaxes, and insurance premiums) required to be paid by Parent or anyof its Subsidiaries under any of the Loan Documents that are paid,advanced, or incurred by the Lender Group, (b) fees or charges paidor incurred by Agent in connection with the Lender Group’stransactions with Parent or its Subsidiaries, including, fees orcharges for photocopying, notarization, couriers and messengers,telecommunication, public record searches (including tax lien,litigation, and UCC searches and including searches with the patentand trademark office, the copyright office, or the department ofmotor vehicles), filing, recording, publication, appraisal (includingperiodic collateral appraisals or business valuations), real estatesurveys, real estate title policies and endorsements, andenvironmental audits, (c) costs and expenses incurred by Agent in thedisbursement of funds to Borrowers or other members of the LenderGroup (by wire transfer or otherwise), (d) charges paid or incurredby Agent resulting from the dishonor of checks, (e) reasonable costsand expenses paid or incurred by the Lender Group to correct anydefault or enforce any provision of the Loan Documents, or after theoccurrence of any Default or Event of Default in gaining possessionof, maintaining, handling, preserving, storing, shipping, selling,preparing for sale, or advertising to sell the Collateral, or anyportion thereof, irrespective of whether a sale is consummated, (f)audit fees and expenses of Agent related to any inspections or auditsto the extent of the fees and charges (and up to the amount of anylimitation) contained in the Agreement or the Fee Letter, (g)reasonable costs and expenses of third party claims or any other suitpaid or incurred by the Lender Group in enforcing or defending theLoan Documents or third party claims or any other suit in connectionwith the transactions contemplated by the Loan Documents or theLender Group’s relationship with Parent or any Subsidiary of Parent,(h) Agent’s reasonable costs and expenses (including attorneys fees)incurred in advising, structuring, drafting, reviewing,administering, syndicating, or amending the Loan Documents, (i)Agent’s and each Lender’s reasonable costs and expenses (includingattorneys, accountants, consultants, and other advisors fees andexpenses) incurred in terminating, enforcing (including attorneys,accountants, consultants, and other advisors fees and expensesincurred in connection with a “workout,” a “restructuring,” or anInsolvency Proceeding concerning Parent or any Subsidiary of Parentor in exercising rights or remedies under the Loan Documents), ordefending the Loan Documents, irrespective of whether suit isbrought, or in taking any Remedial Action concerning the Collateral,and (j) customary and standard usage charges, charges, fees, costsand expenses for amendments, renewals, extensions, transfers, ordrawings from time to time imposed by Underlying Issuer or incurredby the Issuing Lender in respect of Letters of Credit andout-of-pocket charges, fees, costs and expenses paid or incurred bythe Underlying Issuer or Issuing Lender in connection with theissuance, amendment, renewal, extension, or transfer of, or drawingunder, any Letter of Credit or any demand for payment thereunder.“LIBOR Rate” means, for each Interest Period for each LIBORRate Loan, the rate per annum determined by Agent by *dividing*(a) theBase LIBOR Rate for such Interest Period, by (b) 100% *minus*theReserve Percentage. The LIBOR Rate shall be adjusted on and as ofthe effective day of any change in the Reserve Percentage.“LIBOR Rate Margin” means 2.75 percentage points.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidentialinformation subject to the confidentiality request. Omissions are designated by the symbol [***].A complete version of this document has been filed separately with the Securities and Exchange Commission.
 
 

 
(f) The following definitions are hereby added to Schedule 1.1 of the Agreement:“Minimum Liquidity Amount” means $30,000,000.“Triggering Event” means, as of any date of determination, that (a) an Eventof Default has occurred and is continuing, or (b) the sum of Excess Availability andQualified Cash on the last day of any calendar month (and based upon an average ofthe weekly Excess Availability and weekly Qualified Cash amouts for weeks endingduring such month, which amounts will be based upon availability and cash balancereports delivered to Agent in accordance with the terms of this Agreement) is lessthan the Minimum Liquidity Amount.(g) Schedule 5.2 to the Agreement is hereby deleted and replaced with Schedule 5.2 attachedhereto.3. **[***]**4. **REPRESENTATIONS AND WARRANTIES**. Parent and each Borrower hereby affirms to Agent andLenders that, after giving effect to the consents and waivers herein, all of such itsrepresentations and warranties set forth in the Credit Agreement are true, complete and accurate inall respects as of the date hereof.5. **NO DEFAULTS**. Parent and Borrowers hereby affirm to the Lender Group that no Event ofDefault has occurred and is continuing as of the date hereof.6. **CONDITION PRECEDENT**. The effectiveness of this Amendment is expressly conditioned uponreceipt by Agent of a fully executed copy of this Amendment.7. **COSTS AND EXPENSES**. Borrowers shall pay to Agent all of Agent’s out-of-pocket costs andreasonable expenses (including, without limitation, the fees and expenses of its counsel, whichcounsel may include any local counsel deemed necessary, search fees, filing and recording fees,documentation fees, appraisal fees, travel expenses, and other fees) arising in connection with thepreparation, execution, and delivery of this Amendment and all related documents.8. **LIMITED EFFECT**. In the event of a conflict between the terms and provisions of thisAmendment and the terms and provisions of the Credit Agreement, the terms and provisions of thisAmendment shall govern. In all other respects, the Credit Agreement, as amended and supplementedhereby, shall remain in full force and effect.9. **COUNTERPARTS; EFFECTIVENESS**. This Amendment may be executed in any number ofcounterparts and by different parties on separate counterparts, each of which when so executed anddelivered shall be deemed to be an original. All such counterparts, taken together, shallconstitute but one and the same Amendment. This Amendment shall become effective upon theexecution of a counterpart of this Amendment by each of the parties hereto.[Signatures on next page]Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidentialinformation subject to the confidentiality request. Omissions are designated by the symbol [***].A complete version of this document has been filed separately with the Securities and Exchange Commission.
 
 

 
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first setforth above.      **WELLS FARGO CAPITAL FINANCE, INC.,**