EX-10.7



 







Exhibit 10.7



 




CREDIT AGREEMENT




Dated as of July 23, 2007




among




PZENA INVESTMENT MANAGEMENT, LLC

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent

and

L/C Issuer,




and




The Other Lenders Party Hereto



 




 









 









TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	22	 
	1.03 Accounting Terms
	 	 	23	 
	1.04 Rounding
	 	 	24	 
	1.05 Times of Day
	 	 	24	 
	1.06 Letter of Credit Amounts
	 	 	24	 
	1.07 Exchange Rates; Currency Equivalents
	 	 	24	 
	1.08 Additional Alternative Currencies
	 	 	24	 
	1.09 Change of Currency
	 	 	25	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	26	 
	 
	 	 	 	 
	2.01 Term Loan
	 	 	26	 
	2.02 Revolving Loans
	 	 	26	 
	2.03 Borrowings, Conversions and Continuations of Loans
	 	 	27	 
	2.04 Letters of Credit
	 	 	29	 
	2.05 Prepayments
	 	 	38	 
	2.06 Termination or Reduction of Commitments
	 	 	38	 
	2.07 Repayment of Loans
	 	 	39	 
	2.08 Interest
	 	 	39	 
	2.09 Fees
	 	 	40	 
	2.10 Computation of Interest and Fees
	 	 	40	 
	2.11 Evidence of Debt
	 	 	40	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	41	 
	2.13 Sharing of Payments by Lenders
	 	 	43	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	44	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	44	 
	3.02 Illegality
	 	 	46	 
	3.03 Inability to Determine Rates
	 	 	46	 
	3.04 Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	47	 
	3.05 Compensation for Losses
	 	 	48	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	49	 
	3.07 Survival
	 	 	49	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	50	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension
	 	 	50	 
	4.02 Conditions to all Credit Extensions
	 	 	51	 






i









 







	 	 	 	 	 
	Section	 	Page	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	52	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power
	 	 	52	 
	5.02 Authorization; No Contravention
	 	 	52	 
	5.03 Governmental Authorization; Other Consents
	 	 	52	 
	5.04 Binding Effect
	 	 	53	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	53	 
	5.06 Litigation
	 	 	53	 
	5.07 No Default
	 	 	53	 
	5.08 Ownership of Property; Liens
	 	 	54	 
	5.09 Insurance
	 	 	54	 
	5.10 Taxes
	 	 	54	 
	5.11 ERISA Compliance
	 	 	54	 
	5.12 Subsidiaries
	 	 	55	 
	5.13 Margin Regulations; Investment Company Act
	 	 	55	 
	5.14 Disclosure
	 	 	55	 
	5.15 Compliance with Laws
	 	 	55	 
	5.16 Taxpayer Identification Number
	 	 	55	 
	5.17 Intellectual Property; Licenses, Etc
	 	 	56	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	56	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	56	 
	6.02 Certificates; Other Information
	 	 	58	 
	6.03 Notices
	 	 	60	 
	6.04 Payment of Taxes
	 	 	60	 
	6.05 Preservation of Existence, Etc
	 	 	60	 
	6.06 Maintenance of Properties
	 	 	60	 
	6.07 Maintenance of Insurance
	 	 	60	 
	6.08 Compliance with Laws
	 	 	61	 
	6.09 Books and Records
	 	 	61	 
	6.10 Inspection Rights
	 	 	61	 
	6.11 Use of Proceeds
	 	 	61	 
	6.12 Additional Guarantors
	 	 	61	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	62	 
	 
	 	 	 	 
	7.01 Liens
	 	 	62	 
	7.02 Indebtedness
	 	 	63	 
	7.03 Fundamental Changes
	 	 	64	 
	7.04 Dispositions
	 	 	64	 
	7.05 Restricted Payments
	 	 	65	 
	7.06 Change in Nature of Business
	 	 	65	 
	7.07 Transactions with Affiliates
	 	 	66	 
	7.08 Burdensome Agreements
	 	 	66	 
	7.09 Use of Proceeds
	 	 	66	 






ii









 







	 	 	 	 	 
	Section	 	Page	 
	7.10 Financial Covenants
	 	 	67	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	67	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	67	 
	8.02 Remedies Upon Event of Default
	 	 	69	 
	8.03 Application of Funds
	 	 	69	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	70	 
	 
	 	 	 	 
	9.01 Appointment and Authority
	 	 	70	 
	9.02 Rights as a Lender
	 	 	70	 
	9.03 Exculpatory Provisions
	 	 	71	 
	9.04 Reliance by Administrative Agent
	 	 	71	 
	9.05 Delegation of Duties
	 	 	72	 
	9.06 Resignation of Administrative Agent
	 	 	72	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	73	 
	9.08 Administrative Agent May File Proofs of Claim
	 	 	73	 
	9.09 Guaranty Matters
	 	 	74	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	74	 
	 
	 	 	 	 
	10.01 Amendments, Etc
	 	 	74	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	76	 
	10.03 No Waiver; Cumulative Remedies
	 	 	78	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	78	 
	10.05 Payments Set Aside
	 	 	80	 
	10.06 Successors and Assigns
	 	 	80	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	84	 
	10.08 Right of Setoff
	 	 	85	 
	10.09 Interest Rate Limitation
	 	 	85	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	86	 
	10.11 Survival of Representations and Warranties
	 	 	86	 
	10.12 Severability
	 	 	86	 
	10.13 Replacement of Lenders
	 	 	86	 
	10.14 Governing Law; Jurisdiction; Etc
	 	 	87	 
	10.15 Waiver of Jury Trial
	 	 	88	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	88	 
	10.17 USA PATRIOT Act Notice
	 	 	89	 
	10.18 Judgment Currency
	 	 	89	 
	 
	SIGNATURES
	 	 	S-1	 






iii









 









	 	 	 	 	 	 
	SCHEDULES	 	 	 	 
	 
	1.01
	 Consolidated EBITDA for pre-Closing Period
	 	 	 	 
	2.01
	 Commitments and Pro Rata Shares
	 	 	 	 
	5.05
	 Supplement to Interim Financial Statements
	 	 	 	 
	5.12
	 Subsidiaries
	 	 	 	 
	7.01
	 Existing Liens
	 	 	 	 
	7.02
	 Existing Indebtedness
	 	 	 	 
	10.02
	 Administrative Agent’s Office; Certain Addresses for Notices
	 	 	 	 
	  
	  
	 	 	 	 
	EXHIBITS	 	 	 	 
	  
	  
	 	 	 	 
	 	Form of
	 	 	 	 
	 
	A-1
	 Revolving Loan Notice
	 	 	 	 
	A-2
	 Term Loan Interest Rate Selection Notice
	 	 	 	 
	B-1
	 Term Loan Note
	 	 	 	 
	B-2
	 Revolving Loan Note
	 	 	 	 
	C
	 Compliance Certificate
	 	 	 	 
	D
	 Assignment and Assumption
	 	 	 	 
	E
	 Guaranty
	 	 	 	 
	F
	 Opinion Matters
	 	 	 	 







iv









 








CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of July 23, 2007, among PZENA
INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company (the “Borrower”), each
lender from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer.



     The Borrower has requested that the Lenders provide a revolving credit facility and a term
loan facility, and the Lenders are willing to do so on the terms and conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means, with respect to any currency, the
Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02
with respect to such currency, or such other address or account with respect to such currency as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



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



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



     “Aggregate Commitments” means, as at any date of determination thereof, the sum of (a)
the Aggregate Revolving Credit Commitments at such date, plus (b) the Outstanding Amount
with respect to the Term Loan Facility at such date.



     “Aggregate Revolving Credit Commitments” means, as at any date of determination
thereof, the sum of all Revolving Credit Commitments of all Lenders at such date.



     “Agreement” means this Credit Agreement.



     “Alternative Currency” means each of Euro, Hong Kong Dollars, Sterling, Yen and each
other currency (other than US Dollars) that is approved in accordance with Section 1.08.



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     “Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in US Dollars, the equivalent amount thereof in the applicable Alternative Currency as
reasonably determined by the Administrative Agent or the L/C Issuer, as the case may be, at such
time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase of such Alternative Currency with US Dollars.



     “Applicable Rate” means a per annum rate equal to:



          (a) with respect to Base Rate Loans, 0.00%;




          (b) with respect to Eurodollar Rate Loans and Letter of Credit Fees, 1.00%; and




          (c) with respect to the Commitment Fee, 0.20%.




     “Applicable Time” means, with respect to any Letters of Credit and payments in any
Alternative Currency, the local time in the place of settlement for such Alternative Currency as
may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be
necessary for timely settlement on the relevant date in accordance with normal banking procedures
in the place of payment.



     “Approved Fund” means any Fund 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.



     “Assets Under Management” means all assets subject to a Management Agreement in which
a Loan Party, directly or indirectly, earns Management Fees.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



     “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
10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
D or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its subsidiaries as determined in accordance with GAAP as of December 31, 2006, and
the related consolidated statements of income or operations, shareholders’ equity and cash flows
for the fiscal year ended December 31, 2006 of the Borrower and its Subsidiaries as determined in
accordance with GAAP, including the notes thereto.



2









 





     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Revolving Credit Maturity Date, (b) the date of termination of the Aggregate
Revolving Credit Commitments pursuant to Section 2.06, and (c) the date of termination of
the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C
Credit Extensions pursuant to Section 8.02.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a
rate set by Bank of America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.



     “Base Rate Loan” means a Loan (including a Segment) that bears interest based on the
Base Rate.



     “Base Rate Revolving Loan” means a Revolving Loan that is a Base Rate Loan.



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means any of (a) the advance of the Term Loan pursuant to Section
2.01 or (b) a Revolving Borrowing, as the context may require.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located with respect to Obligations denominated in US
Dollars and:




     (a) if such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in deposits in US Dollars are conducted by and between banks in the London
interbank eurodollar market;




     (b) if such day relates to any interest rate settings, fundings, disbursements,
settlements and payments in Euro in respect of any Letter of Credit denominated in Euro, or
any other dealings in Euro to be carried out pursuant to this Agreement in respect of any
such Letter of Credit, means a TARGET Day;




     (c) if such day relates to any interest rate settings as to a Letter of Credit
denominated in a currency other than US Dollars or Euro, means any such day on which
dealings in deposits in the relevant currency are conducted by and between banks in the
London or other applicable offshore interbank market for such currency; and



3









 





     (d) if such day relates to any fundings, disbursements, settlements and payments in a currency
other than US Dollars or Euro in respect of a Letter of Credit denominated in a currency other than
US Dollars or Euro, or any other dealings in any currency other than US Dollars or Euro to be
carried out pursuant to this Agreement in respect of any such Letter of Credit (other than any
interest rate settings), means any such day on which banks are open for foreign exchange business
in the principal financial center of the country of such currency.



     “Capital Lease” means, as applied to any Person, any lease of any Property by that
Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease
on the balance sheet of that person.



     “Cash Collateral” and “Cash Collateralize” have the meanings specified in
Section 2.04(g).



     “Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements.



     “Cash Management Bank” means any Person that, (a) at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender or (b) at the time it (or its
Affiliate) becomes a Lender, is a party to a Cash Management Agreement, in each case in its
capacity as a party to such Cash Management Agreement.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any guideline or directive
(whether or not having the force of law) by any Governmental Authority.



     “Change of Voting Control” means an event or series of events by which:



          (a) after the completion of the IPO,





     (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, but excluding any employee benefit plan of
such person or its subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan) other than the
current officers (including Richard S. Pzena) and other employees of the Borrower
(together with any trust or other estate planning vehicle of which the beneficiaries
are the immediate family members of such officers or employees) becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934), directly or indirectly, of 35% or more of the aggregate
voting rights of all classes of equity securities of the Parent entitled to vote for
members of the board of directors of the Parent on a fully-diluted basis; and




     (ii) the Parent ceases to be the managing member of Borrower.



4









 






     (b) prior to completion of the IPO, current officers and other employees of the
Borrower (together with any trust or other estate planning vehicle of which the
beneficiaries are the immediate family members of such officers or employees) at any time
control less than 51% of the membership units of the Borrower that are entitled to vote for
the managing member of the Borrower on a fully-diluted basis.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986.



     “Commitment Fee” has the meaning specified in Section 2.09.



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



     “Consolidated EBITDA” means, for any period, for the Borrower and its subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus




     (a) the following to the extent deducted in calculating such Consolidated Net Income:




     (i) Consolidated Interest Charges for such period,




     (ii) the provision for Federal, state, local and foreign income taxes payable
by the Borrower and its subsidiaries for such period,




     (iii) depreciation and amortization expense,




     (iv) other non-recurring non-cash items of the Borrower and its Subsidiaries
reducing such Consolidated Net Income;




     (v) compensation expenses of the Borrower and its Subsidiaries reducing such
Consolidated Net Income which do not represent a cash payment in such period or any
future period;




     (vi) compensation expenses associated with distributions on membership units;




     (vii) Interest on Mandatorily Redeemable Units (as set forth in the Borrower’s
income statement); and




     (viii) equity in the losses of Affiliates; and minus




     (b) the following to the extent included in calculating such Consolidated Net Income:




     (i) Federal, state, local and foreign income tax credits of the Borrower and
its Subsidiaries for such period;



5









 






     (ii) all non-recurring, non-cash items increasing Consolidated Net Income for
such period; and




     (iii) equity in the earnings of Affiliates;


provided, however, Consolidated EBITDA for the fiscal quarters preceding Closing
shall be as set forth on Schedule 1.01.




     “Consolidated Interest Charges” means, for any period, for the Borrower and its
subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount,
fees, charges and related expenses of the Borrower and its subsidiaries in connection with borrowed
money (including capitalized interest) or in connection with the deferred purchase price of assets,
in each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent
expense of the Borrower and its subsidiaries with respect to such period under capital leases that
is treated as interest in accordance with GAAP.



     “Consolidated Net Income” means, for any period, for the Borrower and its subsidiaries
on a consolidated basis, the net income of the Borrower and its subsidiaries (excluding
extraordinary gains and extraordinary losses) for that period.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto. A Person shall be deemed to be controlled by another Person if
such other Person possesses, directly or indirectly, 10% or more of the voting power for the
election of directors, managing members or the equivalent.



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if
any, applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest
rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan
plus 2% per annum, and (b)



6









 







when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate
plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Loans or participations in L/C Obligations required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder unless such failure has been cured,
(b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute or unless such failure has been cured, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person.



     “Distribution” means any dividend or distribution (whether in cash, securities or
other Property) with respect to the Equity Interests of a Loan Party or any subsidiary.



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



     “Drawn Amount” has the meaning specified in Section 2.04(c)(i).



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)).



     “EMU” means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.



     “EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and



7









 







Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.



     “Euro” and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.



     “Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for US Dollar deposits
(for delivery on the first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the “Eurodollar Rate” for
such Interest Period shall be the rate per annum determined by the Administrative Agent to be the
rate at which deposits in US Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted
by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar market at their request
at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such
Interest Period.



     “Eurodollar Rate Loan” means a Loan (including a Segment) that bears interest at a
rate based on the Eurodollar Rate. All Eurodollar Rate Loans shall be denominated in US Dollars.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Subsidiary” means (a) any Subsidiary that is prohibited by applicable Law or
a Governmental Authority from guaranteeing the Obligations and (b) any Subsidiary which requires
consent from a Person (other than the Borrower or another Subsidiary, or any Lender which does
grant such consent) in order to guarantee the Obligations.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the



8









 







Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or in which it is deemed by such jurisdiction to be doing
business (other than such determination resulting in whole or in part from its having executed,
delivered or performed its obligations under, or enforced, this Agreement or any other Loan
Document) 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 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 10.13), any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with Section
3.01(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 3.01(a).



     “Facility Termination Date” means the date as of which all of the following shall have
occurred: (a) the Aggregate Commitments have terminated, and (b) all Obligations have been paid in
full (other than (x) contingent indemnification obligations and (y) obligations and liabilities
under Cash Management Agreements and Hedge Agreements as to which arrangements reasonably
satisfactory to the applicable Cash Management Bank or Hedge Bank have been made), and (c) all
Letters of Credit have terminated or expired (other than Letters of Credit as to which other
arrangements with respect thereto satisfactory to the Administrative Agent and the L/C Issuer shall
have been made).



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



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



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



9









 






     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.



     “Funded Indebtedness” means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or liabilities in
accordance with GAAP:



     (a) all obligations for borrowed money, whether current or long-term (including the
Obligations) and all obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;



     (b) all purchase money Indebtedness;



     (c) the principal portion of all obligations under conditional sale or other title retention
agreements relating to Property purchased by any Borrower or any Subsidiary (other than customary
reservations or retentions of title under agreements with suppliers entered into in the ordinary
course of business);



     (d) all obligations arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments;



     (e) all obligations in respect of the deferred purchase price of property or services (other
than trade accounts payable in the ordinary course of business and, in each case, not past due for
more than 90 days);



     (f) the Attributable Indebtedness of Capital Leases, Synthetic Leases and Securitization
Transactions;



     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interests in such Person or any other Person, valued, in the case
of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and



     (h) all Funded Indebtedness of others secured by (or for which the holder of such Funded
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed.



For purposes hereof, the amount of any direct obligation arising under letters of credit (including
standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments shall be the maximum amount available to be drawn thereunder.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board, that are applicable to the circumstances as of the date of determination,
consistently applied.



10









 





     “Governmental Authority” means the government of the United States or any other
nation, or of 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 (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable
by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and
including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to
purchase or lease property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness
or other obligation, (iii) to maintain working capital, equity capital or any other financial
statement condition or liquidity or level of income or cash flow of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other
obligation of the payment or performance thereof or to protect such obligee against loss in respect
thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any
Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such
Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or portion thereof,
in respect of which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in
good faith. The term “Guarantee” as a verb has a corresponding meaning.



     “Guaranteed Parties” means, collectively, with respect to the Guaranty, the
Administrative Agent, the Lenders, and each Affiliate of any Lender, which Affiliate is party to a
Cash Management Agreement or Hedge Agreement.



     “Guarantors” means, collectively, each Subsidiary of the Borrower party to or that
becomes party to the Guaranty Agreement.



     “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative
Agent and the Lenders, substantially in the form of Exhibit E, as supplemented from time to
time by the execution and delivery of a Guaranty Joinder Agreement pursuant to Section
6.12, as from time to time amended, amended and restated, replaced, supplemented or otherwise
modified.



     “Guaranty Joinder Agreement” means each Guaranty Joinder Agreement, substantially in
the form thereof attached to the Guaranty, executed and delivered by a Guarantor to the
Administrative Agent pursuant to Section 6.12, as amended, supplemented or otherwise
modified from time to time.



     “Hedge Agreement” means any Swap Contract permitted under Article VII that is
entered into by and between any Loan Party and any Hedge Bank.



11









 





     “Hedge Bank” means any Person that, (a) at the time it enters into a Hedge Agreement,
is a Lender or an Affiliate of a Lender or (b) at the time it (or its Affiliate) becomes a Lender,
is a party to a Hedge Agreement, in each case in its capacity as a party to such Hedge Agreement.



     “Hong Kong Dollar” and “HK$” mean lawful money of Hong Kong, China.



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:



     (a) all Funded Indebtedness;



     (b) the Swap Termination Value of any Swap Contract;



     (c) all Guarantees with respect to outstanding Indebtedness of the types specified in clauses
(a) and (b) above of any other Person; and



     (d) all Indebtedness of the types referred to in clauses (a) through (c) above of any
partnership or joint venture (other than a joint venture that is itself a corporation of limited
liability company) in which such Person is a general partner or joint venturer, except to the
extent that (i) such Funded Indebtedness is recourse to such Person solely as a result of such
Person being a general partner of another Person and such Funded Indebtedness is non-recourse to
any Loan Party or any other Subsidiary or (ii) such Indebtedness is expressly made non-recourse to
such Person.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Revolving Credit Maturity Date or
Term Loan Maturity Date, as applicable; provided, however, that if any Interest
Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as
to any Base Rate Loan, the last Business Day of each March, June, September and December and the
Revolving Credit Maturity Date or Term Loan Maturity Date, as applicable.



     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its
Revolving Loan Notice or Term Loan Interest Rate Selection Notice or such other period that is
twelve months or less requested by the Borrower and available to all the affected Lenders;
provided that:




     (i) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such



12









 






Business Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Business Day;




     (ii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and




     (iii) no Interest Period shall extend beyond (a) with respect to Revolving Loans, the
Revolving Credit Maturity Date, and (b) with respect to the Term Loan, the Term Loan
Maturity Date.



     “IP Rights” has the meaning specified in Section 5.17.



     “IPO” means, collectively, (1) the organization of the Parent, (2) the sale of shares
of Class A common stock of the Parent to the public for cash pursuant to and as contemplated by the
Parent’s registration statement on Form S-1 (No. 333-143660), (3) the Parent’s use of the cash
proceeds of such sale to acquire certain currently outstanding membership units of the Borrower as
contemplated by such registration statement, and (4) the amendment and restatement of the operating
agreement of the Borrower, such that, among other things, the Parent is appointed as the sole
managing member of the Borrower.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of
Credit.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Revolving Share. All L/C
Advances shall be denominated in US Dollars.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Revolving
Borrowing.



13









 





     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Drawn Amounts, including all L/C Borrowings. For purposes of computing the amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



     “Lender” has the meaning specified in the introductory paragraph hereto.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “Letter of Credit” means any standby letter of credit issued hereunder. Letters of
Credit may be issued in US Dollars or in an Alternative Currency.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Revolving Credit Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.04(i).



     “Letter of Credit Sublimit” means an amount equal to US$5,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Revolving Loan or a Term Loan, including any Segment.



     “Loan Documents” means this Agreement, each Note, each Issuer Document, any Fee
Letter, and the Guaranty.



14









 





     “Loan Parties” means, collectively, the Borrower and each Guarantor.



     “Management Agreement” means each management or other similar agreement among one or
more Loan Parties and other Persons, wherein such Loan Parties agree to provide investment
management or other similar services to such Persons.



     “Management Fees” means the investment management, performance and other similar fees
earned by a Loan Party, directly or indirectly, under a Management Agreement.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the business, assets, liabilities (actual or contingent), or financial
condition of the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
rights and remedies of the Lenders or the Administrative Agent under any Loan Document, or of the
ability of any Loan Party to perform its obligations under any Loan Document to which it is a
party; or (c) a material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a party;
provided, however, in no event shall the non-recurring non-cash charge relating to
the Borrower’s units taken in the first quarter of 2007 as set forth on Schedule 1.01
constitute a Material Adverse Effect.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Non-Consenting Lender” has the meaning specified in Section 10.01.



     “Note” means, collectively, the Revolving Loan Notes and the Term Loan Notes.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, Cash Management Agreement or Hedge Agreement, in each case whether direct or
indirect (including those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



15









 





     “Outstanding Amount” means (a) with respect to the Term Loan on any date, the
aggregate outstanding principal amount thereof after giving effect to the Borrowing of the Term
Loan on the Closing Date, and any prepayments or repayments of the Term Loan (or any Segment)
occurring on such date, (b) with respect to Revolving Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any Revolving Borrowings and any prepayments or
repayments of Revolving Loans occurring on such date; and (c) with respect to any L/C Obligations
on any date, the US Dollar Equivalent of the aggregate outstanding amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date, including as a result of
any reimbursements by the Borrower of Drawn Amounts.



     “Overnight Rate” means, for any day, (a) with respect to any amount denominated in US
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent or the L/C Issuer, as the case may be, in accordance with banking industry
rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative
Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative
Currency, in an amount approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of Bank of America in the
applicable offshore interbank market for such currency to major banks in such interbank market.



     “Parent” means Pzena Investment Management, Inc., which, simultaneously with the IPO,
will own all of the class A membership units in the Borrower.



     “Participant” has the meaning specified in Section 10.06(d).



     “Participating Member State” means each state so described in any EMU Legislation.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permitted Tax Distributions” has the meaning specified in Section 7.05(e).



     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.



16









 





     “Presumed Tax Rate” means for a Loan Party or Subsidiary the highest combined Federal,
and applicable state and local income tax rate applicable to such Loan Party or Subsidiary (taking
into account the character of the income and after giving effect to the Federal income tax
deduction for such state and local income taxes).



     “Pro Rata Revolving Share” means, with respect to each Revolving Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of
which is the amount of the Revolving Credit Commitment of such Revolving Lender at such time and
the denominator of which is the amount of the Aggregate Revolving Credit Commitments at such time;
provided that if the Aggregate Revolving Credit Commitments have been terminated at such time, then
the Pro Rata Revolving Share of each Revolving Lender shall be the Pro Rata Revolving Share of such
Revolving Lender immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to Section 10.06. The initial Pro Rata Revolving Share of each
Revolving Lender is set forth opposite the name of such Revolving Lender on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Revolving Lender becomes a party hereto,
as applicable.



     “Pro Rata Term Share” means, with respect to each Term Loan Lender at any time, the
percentage (carried out to the ninth decimal place) of the principal amount of the Term Loan funded
by such Term Loan Lender, and outstanding at such time, or the principal amount of the Term Loan
assigned to such Term Loan Lender, as applicable. The initial Pro Rata Term Share of each Term
Loan Lender is set forth opposite the name of such Term Loan Lender on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Term Loan Lender becomes a party hereto, as
applicable.



     “Property” means any interest of any kind in any property or asset, whether real,
personal or mixed, or tangible or intangible.



     “Public Lender” has the meaning specified in Section 6.02.



     “Register” has the meaning specified in Section 10.06(c).



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



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolving Loans, a Revolving Loan Notice, (b) with respect to the initial advance
of the Term Loan or a conversion or continuation of Segments, a Term Loan Interest Rate Selection
Notice, and (c) with respect to an L/C Credit Extension, a Letter of Credit Application.



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to



17









 




Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations being deemed “held” by such Lender for purposes of this definition); provided
that the Aggregate Commitment of, and the portion of the Total Outstandings held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.




     “Required Revolving Lenders” means, as of any date of determination, Revolving Lenders
having more than 50% of the Aggregate Revolving Credit Commitments or, if the Revolving Credit
Commitment of each Revolving Lender to make Revolving Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions hereunder have been terminated pursuant to Section 8.02,
Revolving Lenders holding in the aggregate more than 50% of the Outstanding Amount under the
Revolving Credit Facility (with the aggregate amount of each Revolving Lender’s risk participation
and funded participation in L/C Obligations being deemed “held” by such Revolving Lender for
purposes of this definition); provided that the Revolving Credit Commitment of, and
the portion of the Outstanding Amount (including risk participations in Letters of Credit) under
the Revolving Credit Facility held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Revolving Lenders.



     “Required Term Loan Lenders” means, as of any date of determination, Term Loan Lenders
having more than 50% of the Outstanding Amount of the Term Loan; provided that the
Outstanding Amount of the Term Loan held or deemed held by any Defaulting Lender shall be excluded
for purposes of making a determination of Required Term Loan Lenders.



     “Responsible Officer” means the chief executive officer, any president that is also a
member of the executive management committee, chief financial officer, director, finance &
accounting or treasurer of a Loan Party or the Parent, as applicable. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party or the Parent shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party or the Parent and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party or the Parent.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Borrower’s stockholders, partners or members (or the
equivalent Person thereof).



     “Revaluation Date” means, with respect to any Letter of Credit, each of the following:
(i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each
date of an amendment of any such Letter of Credit having the effect of increasing the amount
thereof (solely with respect to the increased amount), (iii) each date of any payment by the L/C
Issuer under any Letter of Credit denominated in an Alternative Currency, and (iv) such additional
dates as the Administrative Agent or the L/C Issuer shall determine.



18









 





     “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period, made by
each of the Revolving Lenders pursuant to Section 2.02.



     “Revolving Credit Commitment” means, as to each Revolving Lender, its obligation to
(a) make Revolving Loans to the Borrower pursuant to Section 2.02, and (b) purchase
participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not
to exceed the amount set forth opposite such Revolving Lender’s name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this Agreement.



     “Revolving Credit Facility” means the facility described in Sections 2.02 and
2.04 providing for Revolving Loans and Letters of Credit to or for the benefit of the
Borrower by the Revolving Lenders and L/C Issuer, as the case may be, in the maximum aggregate
principal amount at any time outstanding of US$20,000,000, as adjusted from time to time pursuant
to the terms of this Agreement.



     “Revolving Credit Maturity Date” means (a) July 23, 2010 or (b) such earlier date upon
which the Aggregate Revolving Credit Commitments have been terminated in full and the Outstanding
Amounts under the Revolving Credit Facility, including all accrued and unpaid interest, are paid in
full in accordance with the terms hereof.



     “Revolving Lender” means each Lender that has a Revolving Credit Commitment or,
following termination of the Revolving Credit Commitments, has Revolving Loans outstanding or
participations in an outstanding Letter of Credit.



     “Revolving Loan” means a Base Rate Loan or a Eurodollar Rate Loan made to the Borrower
by a Revolving Lender in accordance with its Pro Rata Revolving Share pursuant to Section
2.02, except as otherwise provided herein.



     “Revolving Loan Note” means a promissory note made by the Borrower in favor of a
Revolving Lender evidencing Revolving Loans made by such Revolving Lender, substantially in the
form of Exhibit B-2.



     “Revolving Loan Notice” means a notice of (a) a Revolving Borrowing, (b) a conversion
of Revolving Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.03(a), which, if in writing, shall be substantially in the form of
Exhibit A-1.



     “Same Day Funds” means (a) with respect to disbursements and payments in US Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Administrative Agent or the L/C
Issuer, as the case may be, to be customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant Alternative Currency.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



19









 





     “Securitization Transaction” means, with respect to any Person, any financing
transaction or series of financing transactions (including a factoring arrangements) pursuant to
which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant
a security interest in, accounts, payments, receivables, rights to future lease payments or
residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.



     “Segment” means a portion of any Term Loan (or all thereof) with respect to which a
particular interest rate is (or is proposed to be) applicable.



     “Specified Dividend” has the meaning specified in Section 6.11.



     “Spot Rate” for a currency means the rate determined by the Administrative Agent or
the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the
spot rate for the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days
prior to the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution
designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does
not have as of the date of determination a spot buying rate for any such currency; and
provided further that the L/C Issuer may use such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of any Letter of Credit denominated
in an Alternative Currency.



     “Sterling” and “£” mean the lawful currency of the United Kingdom.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned by such Person; provided, however, that
notwithstanding the foregoing, no Person which is an investment fund shall be treated as a
Subsidiary for purposes of this Agreement. Unless otherwise specified, all references herein to a
“Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules,



20









 







a “Master Agreement”), including any such obligations or liabilities under any Master
Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



     “Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement
is considered borrowed money indebtedness for tax purposes but is classified as an operating lease
or does not otherwise appear on a balance sheet under GAAP.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “TARGET Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (“TARGET”) payment system (or, if such payment system ceases to
be operative, such other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.



     “Tax Receivable Agreement” means a Tax Receivable Agreement to be entered into in
connection with the IPO among the Borrower and certain of its members as contemplated by the
Parent’s registration statement on Form S-1 (No. 333-143660).



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



     “Term Loan” means the loans made pursuant to the Term Loan Facility in accordance with
Section 2.01.



     “Term Loan Facility” means the facility described in Section 2.01 providing
for an advance of the Term Loan to the Borrower by the Term Loan Lenders in the original principal
amount of US$60,000,000, subject to adjustments as herein provided.



     “Term Loan Interest Rate Selection Notice” means the written notice delivered by a
Responsible Officer of the Borrower in connection with the election of any Interest Period for any
Eurodollar Rate Segment or the conversion of any Eurodollar Rate Segment into a Base Rate Segment
or the conversion of any Base Rate Segment into a Eurodollar Rate Segment, which, if in writing,
shall be substantially in the form of Exhibit A-2.



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     “Term Loan Lender” means each Lender that has a portion of the Term Loan outstanding
under the Term Loan Facility.



     “Term Loan Maturity Date” means (a) July 23, 2010, or (b) such earlier date upon which
the Outstanding Amounts under the Term Loan Facility, including all accrued and unpaid interest,
are paid in full in accordance with the terms hereof.



     “Term Loan Note” means a promissory note made by the Borrower in favor of a Term Loan
Lender evidencing the portion of the Term Loan made by such Term Loan Lender, substantially in the
form of Exhibit B-1.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



     “Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving
Loans and L/C Obligations.



     “Type” means, with respect to a Revolving Loan or a Segment, its character as a Base
Rate Loan or a Eurodollar Rate Loan.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



     “United States” and “U.S.” mean the United States of America.



     “US Dollar” and “US$” mean lawful money of the United States.



     “US Dollar Equivalent” means, at any time, (a) with respect to any amount denominated
in US Dollars, such amount, and (b) with respect to any amount denominated in any Alternative
Currency, the equivalent amount thereof in US Dollars as determined by the Administrative Agent or
the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in
respect of the most recent Revaluation Date) for the purchase of US Dollars with such Alternative
Currency.



     “Yen” and “¥” mean the lawful currency of Japan.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



     (a) 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, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be construed as referring
to such



22









 







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 or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time, and (vi) 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.



     (b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and
including.”



     (c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations
of such ratio or requirement made before and after giving effect to such change in GAAP.



     (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the determination of
any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be deemed to include each variable interest entity that the Borrower is
required to



23









 








consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest
Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity
were a Subsidiary as defined herein.



     (d) Financial Statements and Financial Covenants. For the avoidance of doubt, all
financial statements referred to in Section 5.05 and to be prepared and delivered pursuant
to Section 6.01 shall include certain investment funds on a consolidated basis with the
Parent or Borrower and their respective subsidiaries, as applicable, notwithstanding the definition
of “Subsidiary” or any other terms herein to the contrary. However, calculation of the financial
covenants set forth in Section 7.10 and application of the definitions used therefor shall
exclude all such investment funds and be determined solely with respect to the Borrower and
its Subsidiaries.



     1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



     1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).



     1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the US Dollar Equivalent of the stated amount of such
Letter of Credit in effect at such time; provided, however, that with respect to
any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto,
provides for one or more automatic increases in the stated amount thereof, the amount of such
Letter of Credit shall be deemed to be the US Dollar Equivalent of the maximum stated amount of
such Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.



     1.07 Exchange Rates; Currency Equivalents. (a) The Administrative Agent or the L/C Issuer, as
applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating
the US Dollar Equivalent amounts of L/C Credit Extensions denominated in Alternative Currencies.
Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between the applicable currencies until the next Revaluation
Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or
calculating financial covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency (other than US Dollars) for purposes of the Loan Documents shall be such US
Dollar Equivalent amount as so determined by the Administrative Agent or the L/C Issuer, as
applicable.



     (b) Wherever in this Agreement in connection with the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in US
Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be
the relevant Alternative Currency Equivalent of such US Dollar amount



24









 




(rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded
upward), as determined by the Administrative Agent or the L/C Issuer, as the case may be.




     1.08 Additional Alternative Currencies. (a) The Borrower may from time to time request that
Letters of Credit be issued in a currency other than those specifically listed in the definition of
“Alternative Currency;” provided that such requested currency is a lawful currency (other
than US Dollars) that is readily available and freely transferable and convertible into US Dollars.
In the case of any such request with respect to the issuance of Letters of Credit, such request
shall be subject to the approval of the Administrative Agent and the L/C Issuer.



     (b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m.,
twenty (20) Business Days prior to the date of the desired L/C Credit Extension (or such other time
or date as may be agreed by the Administrative Agent and the L/C Issuer, in their sole discretion).
In the case of any such request pertaining to Letters of Credit, the Administrative Agent shall
promptly notify the L/C Issuer thereof. The L/C Issuer shall notify the Administrative Agent, not
later than 11:00 a.m., ten (10) Business Days after receipt of such request whether it consents, in
its sole discretion, to the issuance of Letters of Credit in such requested currency.



     (c) Any failure by the L/C Issuer to respond to such request within the time period specified
in the preceding sentence shall be deemed to be a refusal by the L/C Issuer to permit Letters of
Credit to be issued in such requested currency. If the Administrative Agent and the L/C Issuer
consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent
shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the
Administrative Agent shall fail to obtain consent to any request for an additional currency under
this Section 1.08, the Administrative Agent shall promptly so notify the Borrower.



     1.09 Change of Currency. (a) Each obligation of the Borrower to make a payment denominated in
the national currency unit of any member state of the European Union that adopts the Euro as its
lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption
(in accordance with the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect of that currency
shall be inconsistent with any convention or practice in the London interbank market for the basis
of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such
convention or practice with effect from the date on which such member state adopts the Euro as its
lawful currency.



     (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any relevant market
conventions or practices relating to the Euro.



     (c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to



25









 







reflect a change in currency of any other country and any relevant market conventions or
practices relating to the change in currency.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Term Loan.



     (a) Subject to the terms and conditions of this Agreement, each Term Loan Lender severally
agrees to make an advance of its Pro Rata Term Share of the Term Loan in US Dollars to the Borrower
on the Closing Date, and from the Closing Date to the Term Loan Maturity Date, convert and continue
Segments from time to time in accordance with the terms hereof. The principal amount of each
Segment of the Term Loan outstanding hereunder from time to time shall bear interest and the Term
Loan shall be repayable as herein provided. No amount of the Term Loan repaid or prepaid by the
Borrower may be reborrowed hereunder, and no subsequent advance under the Term Loan Facility shall
be allowed after the initial such advance of the Term Loan on the Closing Date. Segments of the
Term Loan may be Base Rate Segments or Eurodollar Rate Segments at the Borrower’s election, as
provided herein.



     (b) Not later than 1:00 p.m. on the Closing Date, each Term Loan Lender shall, pursuant to the
terms and subject to the conditions of this Agreement, make the amount of its Pro Rata Term Share
of the Term Loan available by wire transfer to the Administrative Agent. Such wire transfer shall
be directed to the Administrative Agent at the Administrative Agent’s Office and shall be in the
form of same day funds in US Dollars. The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, including without limitation the
satisfaction of all applicable conditions in Sections 4.01 and 4.02, be made
available to the Borrower by delivery of the proceeds thereof as shall be directed by a Responsible
Officer of the Borrower and reasonably acceptable to the Administrative Agent. The initial
Borrowing of the Term Loan may be a Eurodollar Rate Segment, a Base Rate Segment, or both;
provided that if the Borrower desires that any portion of the initial Borrowing of
the Term Loan is advanced as a Eurodollar Rate Segment, the Administrative Agent shall make such
Borrowing as a Eurodollar Rate Segment only if, not later than three Business Days prior to the
date that is then anticipated to be the Closing Date, the Administrative Agent has received from
the Borrower a Term Loan Interest Rate Selection Notice with respect thereto, together with the
Borrower’s written acknowledgement in form and substance satisfactory to the Administrative Agent
that the provisions of Section 3.05 hereof shall apply to any failure by the Borrower to
borrow on the date set forth in such Term Loan Interest Rate Selection Notice any or all of the
amounts specified in such Term Loan Interest Rate Selection Notice.



     2.02 Revolving Loans. Subject to the terms and conditions set forth herein, each Revolving
Lender severally agrees to make, convert and continue Revolving Loans in US Dollars to the Borrower
from time to time, on any Business Day during the Availability Period, in an aggregate amount not
to exceed at any time outstanding the amount of such Revolving Lender’s Revolving Credit
Commitment; provided, however, that after giving effect to any Revolving Borrowing,
(i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Credit Commitments,
and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender,
plus such Lender’s Pro Rata Revolving Share of the



26









 







Outstanding Amount of all L/C Obligations shall not exceed such Lender’s Revolving Credit
Commitment. Within the limits of each Lender’s Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.02, prepay under
Section 2.05, and reborrow under this Section 2.02. Revolving Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein.



     2.03 Borrowings, Conversions and Continuations of Loans.



     (a) Each Revolving Borrowing, each conversion of Revolving Loans or Segments of the Term Loan
from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each
such notice must be received by the Administrative Agent not later than noon (i) three Business
Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar
Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Loans; provided, however, that if the
Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than one, two,
three or six months in duration as provided in the definition of “Interest Period”, the
applicable notice must be received by the Administrative Agent not later than noon four Business
Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the
Administrative Agent shall give prompt notice to the Revolving Lenders or Term Loan Lenders, as
applicable, of such request and determine whether the requested Interest Period is available to all
of them. Not later than 11:00 a.m., three Business Days before the requested date of such
Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which
notice may be by telephone) whether or not the requested Interest Period has been consented to by
all the Lenders. Each telephonic notice by the Borrower pursuant to this Section 2.03(a)
must be confirmed promptly by delivery to the Administrative Agent of a written Revolving Loan
Notice (as to Revolving Borrowings) or Term Loan Interest Rate Selection Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of US$500,000 or a whole
multiple of US$250,000 in excess thereof. Except as provided in Sections 2.04(c) and
2.05(b), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount
of US$250,000 or a whole multiple of US$50,000 in excess thereof.



     Each Revolving Loan Notice and Term Loan Interest Rate Selection Notice (whether telephonic or
written) shall specify, as applicable, (i) whether the Borrower is requesting a Revolving
Borrowing, a conversion of Revolving Loans from one Type to the other, a conversion of Term Loan
Segments from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested
date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business
Day), (iii) the principal amount of Revolving Loans to be borrowed, or the principal amount of
Revolving Loans or Term Loan Segments to be converted or continued, (iv) the Type of Revolving
Loans to be borrowed or the Type of Revolving Loans or Term Loan Segments to which existing
Revolving Loans or Term Loan Segments are to be converted, and (v) if applicable, the duration of
the Interest Period with respect thereto. Revolving Loans may not be converted to Term Loan
Segments, and Term Loan Segments may not be converted to Revolving Loans. Each written Revolving
Loan Notice shall be substantially in the form of Exhibit A-1 attached hereto, and each
written Term Loan Interest Rate Selection



27









 







Notice shall be substantially in the form of Exhibit A-2 attached hereto. If the
Borrower fails to specify a Type of Revolving Loan in a Revolving Loan Notice or a Type of Term
Loan Segment in a Term Loan Interest Rate Selection Notice, then the applicable Loans shall be made
as Base Rate Loans. If the Borrower fails to give a timely notice requesting a continuation of
Eurodollar Rate Loans, then the applicable Eurodollar Rate Loans shall be continued as Eurodollar
Rate Loans with an Interest Period of one month. If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Revolving Loan Notice or Term
Loan Interest Rate Selection Notice, but fails to specify an Interest Period, it will also be
deemed to have specified an Interest Period of one month.



     (b) Following receipt of a Revolving Loan Notice, the Administrative Agent shall promptly
notify each Revolving Lender of its Pro Rata Revolving Share of the applicable Revolving Loans, and
if no timely notice of a continuation of a Eurodollar Rate Loan is provided by the Borrower, the
Administrative Agent shall notify each Revolving Lender of the details of any automatic
continuation of Eurodollar Rate Loans described in the preceding subsection. Following receipt of
a Term Loan Interest Rate Selection Notice, the Administrative Agent shall promptly notify each
Term Loan Lender of the details of any conversion or continuation, and if no timely notice of a
continuation of a Eurodollar Rate Loan is provided by the Borrower, the Administrative Agent shall
notify each Term Loan Lender of the details of any automatic continuation of Eurodollar Rate Loans
described in the preceding subsection. In the case of a Revolving Borrowing, each applicable
Lender shall make the amount of its Revolving Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the
Business Day specified in the applicable Revolving Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial
Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date the Revolving Loan Notice with respect to such Borrowing is
given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing,
first, shall be applied to the payment in full of any such L/C Borrowings, and
second, shall be made available to the Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the Required Revolving Lenders or the Required Term Loan Lenders, as applicable, having agreed to
such treatment.



     (d) The Administrative Agent shall promptly notify the Borrower and the applicable Lenders of
the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s
prime rate used in determining the Base Rate promptly following the public announcement of such
change.



28









 





     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not at any time be more than
(a) seven Interest Periods in effect with respect to the Term Loan and (b) seven Interest Periods
in effect with respect to the Revolving Credit Facility.



     2.04 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Revolving Lenders set forth in this Section
2.04, (1) from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in US
Dollars or in one or more Alternative Currencies for the account of the Borrower, and to
amend or extend Letters of Credit previously issued by it, in accordance with subsection
(b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving
Lenders severally agree to participate in Letters of Credit issued for the account of the
Borrower and any drawings thereunder; provided that after giving effect to any L/C
Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Credit Commitments, (y) the Outstanding Amount of
the Revolving Loans of any Revolving Lender, plus such Revolving Lender’s Pro Rata Revolving
Share of the Outstanding Amount of all L/C Obligations, shall not exceed such Revolving
Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed
the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment
of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C
Credit Extension so requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon and reimbursed.




     (ii) The L/C Issuer shall not issue any Letter of Credit if:




     (A) Subject to Section 2.04(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Required Revolving Lenders have approved such expiry
date; or




     (B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Revolving Lenders have approved
such expiry date.




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from



29









 






issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any
request or directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the
L/C Issuer refrain from, the issuance of letters of credit generally or such Letter
of Credit in particular or shall impose upon the L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the L/C Issuer in good faith deems
material to it;




     (B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer applicable to letters of credit generally;




     (C) except as otherwise agreed to by the Administrative Agent and the L/C
Issuer, such Letter of Credit is in an initial stated amount less than US$100,000;




     (D) such Letter of Credit is to be denominated in a currency other than US
Dollars or an Alternative Currency;




     (E) if the Letter of Credit is denominated in a currency other than US Dollars,
the L/C Issuer does not as of the issuance date of such requested Letter of Credit
issue Letters of Credit in the requested currency; or




     (F) a default of any Revolving Lender’s obligations to fund under Section
2.04(c) exists or any Revolving Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the
Borrower or such Revolving Lender to eliminate the L/C Issuer’s risk with respect to
such Lender.




     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.




     (vi) The L/C Issuer shall act on behalf of the Revolving Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer
shall have all of the benefits and immunities (A) provided to the Administrative Agent in
Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in Article IX included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C Issuer.



30









 





     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than noon at least two Business
Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree
in a particular instance in their sole discretion) prior to the proposed issuance date or
date of amendment, as the case may be. In the case of a request for an initial issuance of
a Letter of Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the
purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C
Issuer may reasonably require. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may reasonably require.
Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may
reasonably require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Revolving Lender, the Administrative Agent
or any Loan Party, at least one Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable conditions
contained in Article IV shall not then be satisfied, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for
the account of the Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer’s usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to the product of
such Revolving Lender’s Pro Rata Revolving Share times the amount of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit



31









 






that has automatic extension provisions (each, an “Auto-Extension Letter of
Credit”); provided that any such Auto-Extension Letter of Credit must permit the
L/C Issuer to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in
each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of
Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may
not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to
an expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such extension if (A) the L/C
Issuer has determined that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of clause (ii) or (iii) of Section 2.04(a) or
otherwise), or (B) it has received notice (which may be by telephone or in writing) on or
before the day that is seven Business Days before the Non-Extension Notice Date from the
Administrative Agent, any Revolving Lender or the Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, and in each
such case directing the L/C Issuer not to permit such extension.




     (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof.




Not later than 12:00 noon on the date of any payment by the L/C Issuer under a Letter of
Credit to be reimbursed in US Dollars, or the Applicable Time on the date of any payment by
the L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each
such date, an “Honor Date”), the Administrative Agent shall promptly notify each
Revolving Lender of the Honor Date, the amount of the drawing (expressed in US Dollars in
the amount of the US Dollar Equivalent thereof in the case of a Letter of Credit denominated
in an Alternative Currency) (the “Drawn Amount”), and the amount of such Revolving
Lender’s Pro Rata Revolving Share thereof. In such event, the Borrower shall be deemed to
have requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Drawn Amount, without regard to the minimum and multiples specified in
Section 2.03 for the principal amount of Base Rate Loans, but subject to the amount
of the unutilized portion of the Aggregate Revolving Credit Commitments and the conditions
set forth in Section 4.02 (other than the delivery of a Revolving Loan Notice). Any
notice given by the L/C Issuer or the Administrative Agent pursuant to this Section
2.04(c)(i) may be given by telephone if



32









 






immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.




     (ii) Each Revolving Lender shall upon any notice pursuant to Section 2.04(c)(i)
make funds available to the Administrative Agent for the account of the L/C Issuer, in US
Dollars at the Administrative Agent’s Office for US-Dollar-denominated payments in an amount
equal to its Pro Rata Revolving Share of the Drawn Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.04(c)(iii), each Revolving Lender that so makes funds
available shall be deemed to have made a Base Rate Revolving Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.




     (iii) With respect to any Drawn Amount that is not fully refinanced by a Revolving
Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot
be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Drawn Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together with interest) and shall
bear interest at the Default Rate. In such event, each Revolving Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section
2.04(c)(ii) shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Revolving Lender in satisfaction of
its participation obligation under this Section 2.04.




     (iv) Until each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to
this Section 2.04(c) to reimburse the L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Revolving Lender’s Pro Rata Revolving Share of
such amount shall be solely for the account of the L/C Issuer.




     (v) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.04(c), shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Revolving Lender may have against the L/C Issuer, the Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Lender’s obligation to make Revolving
Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by the Borrower of a Revolving Loan Notice). No
such making of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.




     (vi) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the L/C Issuer any amount required to be paid by such Revolving Lender
pursuant to the foregoing provisions of this Section 2.04(c) by the time



33









 






specified in Section 2.04(c)(ii), the L/C Issuer shall be entitled to recover
from such Revolving Lender (acting through the Administrative Agent), on demand, such amount
with interest thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the L/C Issuer at a rate per annum equal to
the applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection with the
foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid),
the amount so paid shall constitute such Revolving Lender’s Revolving Loan included in the
relevant Revolving Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the
case may be. A certificate of the L/C Issuer submitted to any Revolving Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall
be conclusive absent manifest error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Revolving Lender such Revolving Lender’s L/C Advance in respect of
such payment in accordance with Section 2.04(c), if the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the related Drawn
Amount or interest thereon (whether directly from the Borrower or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Revolving Lender its Pro Rata Revolving Share thereof in the
same funds as those received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.04(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Revolving Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata Revolving Share thereof
on demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Revolving Lender, at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. The obligations of the Revolving
Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



     (e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any



34









 






such transferee may be acting), the L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law;




     (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Borrower or in the relevant currency markets generally;
or




     (vi) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.



     The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The
Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.



     (f) Role of L/C Issuer. Each Revolving Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Revolving Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the Revolving Lenders or the
Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Issuer Document.
The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under any other



35









 







agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.04(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer
may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused
by the L/C Issuer’s bad faith, willful misconduct or gross negligence or the L/C Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents
that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.



     (g) Cash Collateral.




     (i) Upon the request of the Administrative Agent, if, as of the Letter of Credit
Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall,
in each case, (A) immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations or (B) provide to the Administrative Agent, for the benefit of the L/C Issuer
and the Revolving Lenders, a back-to-back Letter of Credit in a stated amount equal to the
then Outstanding Amount of all L/C Obligations issued by an institution, and in form,
reasonably satisfactory to the L/C Issuer.




     (ii) In addition, if the Administrative Agent notifies the Borrower at any time that
the Outstanding Amount of all L/C Obligations at such time exceeds 105% of the Letter of
Credit Sublimit then in effect, then, within two Business Days after receipt of such notice,
the Company shall (A) immediately Cash Collateralize the L/C Obligations in an amount equal
to the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of
Credit Sublimit or (B) provide to the Administrative Agent, for the benefit of the L/C
Issuer and the Revolving Lenders, a back-to-back Letter of Credit in a stated amount equal
to the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of
Credit Sublimit issued by an institution, and in form, reasonably satisfactory to the L/C
Issuer.




     (iii) The Administrative Agent may, at any time and from time to time after the initial
deposit of Cash Collateral, request that additional Cash Collateral or other satisfactory
arrangements be provided in order to protect against the results of exchange rate
fluctuations. At such time Cash Collateral is no longer required by Section
2.04(g)(i) or 2.04(g)(ii), the Administrative Agent shall release such Cash
Collateral.




     (iv) Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this Section
2.04, Section 2.05 and Section 8.02(c), “Cash Collateralize”
means to pledge and deposit with or deliver to the



36









 






Administrative Agent, for the benefit of the L/C Issuer and the Revolving Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance reasonably satisfactory to the Administrative Agent and
the L/C Issuer (which documents are hereby consented to by the Revolving Lenders).
Derivatives of such term, including “Cash Collateral,” have corresponding meanings.
The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuer
and the Revolving Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.



     (h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of
Credit.



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Lender in accordance with its Pro Rata Revolving Share a Letter of Credit
fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the US Dollar Equivalent of the daily amount available to be drawn under such Letter of
Credit. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.06. Letter of Credit Fees shall be (i) due and payable on the last Business Day of each
March, June, September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand
and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate
during any quarter, the daily amount available to be drawn under each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period during such quarter that
such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein,
upon the request of the Required Revolving Lenders, while any Event of Default described in
Section 8.01(a) or 8.01(f) exists, all Letter of Credit Fees shall accrue at the
Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. At all
times at which there is more than one Lender, the Borrower shall pay directly to the L/C Issuer for
its own account a fronting fee with respect to each Letter of Credit, at the rate per annum of one
eighth of one percent (0.125), computed on the US Dollar Equivalent of the daily amount available
to be drawn under such Letter of Credit and on a quarterly basis in arrears. Such fronting fee
shall be due and payable on the tenth Business Day after the end of each March, June, September and
December in respect of the most recently-ended quarterly period (or portion thereof, in the case of
the first payment), commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. In addition, the
Borrower shall pay directly to the L/C Issuer for its own account, in US Dollars, the customary
issuance, presentation, amendment and other processing fees, and other standard costs and charges,
of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are nonrefundable.



37









 





     (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



     2.05 Prepayments.



     (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Loans under either the Revolving Credit Facility or the Term Loan Facility
or a combination thereof in whole or in part without premium or penalty; provided that (i)
such notice must be received by the Administrative Agent not later than noon (A) three Business
Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of
Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of
US$500,000 or a whole multiple of US$250,000 in excess thereof; and (iii) any prepayment of Base
Rate Loans shall be in a principal amount of US$250,000 or a whole multiple of US$50,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such
notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid
and, if Eurodollar Rate Loans are to be repaid, the Interest Period(s) of such Loans. Prepayments
of the Term Loan shall be applied to the remaining installments of principal in the direct order of
maturity. The Administrative Agent will promptly notify each applicable Lender of its receipt of
each such notice, and of the amount of such Lender’s ratable share of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. Any prepayment of
a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Loans of the Lenders in accordance with their Pro Rata Revolving Shares and Pro
Rata Term Shares, as applicable.



     (b) If for any reason the Total Revolving Outstandings at any time exceed an amount equal to
105% of the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately
prepay Revolving Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount
sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed
100% of the Aggregate Commitments then in effect; provided, however, that the
Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05(b) unless after the prepayment in full of the Revolving Loans the Total
Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The
Administrative Agent may, at any time and from time to time after the initial deposit of such Cash
Collateral, request that additional Cash Collateral or other satisfactory arrangements be provided
in order to protect against the results of further exchange rate fluctuations. At such time Cash
Collateral is no longer required by this Section 2.05(b), the Administrative Agent shall
release such Cash Collateral.



     2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Revolving Credit Commitments, or from time to time
permanently reduce the Aggregate Revolving Credit Commitments; provided that (i) any such
notice shall be received by the Administrative Agent not later than noon five Business Days prior
to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate
amount of US$2,500,000 or any whole multiple of US$1,000,000 in excess thereof,



38









 





(iii) the Borrower shall not terminate or reduce the Aggregate Revolving Credit Commitments
if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving
Outstandings would exceed the Aggregate Revolving Credit Commitments, and (iv) if, after giving
effect to any reduction of the Aggregate Revolving Credit Commitments or the Letter of Credit
Sublimit exceeds the amount of the Aggregate Revolving Credit Commitments, such Sublimit shall be
automatically reduced by the amount of such excess. The Administrative Agent will promptly notify
the Revolving Lenders of any such notice of termination or reduction of the Aggregate Revolving
Credit Commitments. Any reduction of the Aggregate Revolving Credit Commitments shall be applied
to the Revolving Credit Commitment of each Revolving Lender according to its Pro Rata Revolving
Share. All fees accrued until the effective date of any termination of the Aggregate Revolving
Credit Commitments shall be paid on the effective date of such termination.




     2.07 Repayment of Loans.



     (a) The Borrower shall repay to the Revolving Lenders on the Revolving Credit Maturity Date
the aggregate principal amount of Revolving Loans outstanding on such date.



     (b) The Borrower shall repay to the Term Loan Lenders on the Term Loan Maturity Date the
aggregate principal amount of the Term Loan outstanding on such date.



     2.08 Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and
(ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate.




(b) (i) If any amount (including principal of any Loan, interest on any Loan, or any fees
due hereunder) is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, or while any Event of Default
described in Section 8.01(f) exists, the principal amount of all outstanding
Obligations shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (ii) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



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     2.09 Fees. In addition to certain fees described in subsections (i) and (j) of Section
2.04:



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Lender in accordance with its Pro Rata Revolving Share, a commitment fee
in US Dollars (the “Commitment Fee”) equal to the Applicable Rate times the actual
daily amount by which the Aggregate Revolving Credit Commitments exceed the sum of (i) the
Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C Obligations. The
commitment fee shall accrue at all times during the Availability Period, including at any time
during which one or more of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the last day of the
Availability Period. The commitment fee shall be calculated quarterly in arrears.



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by Bank of America’s “prime rate” and all computations of the
Commitment Fee shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made on the basis of a
360-day year and actual days elapsed (which results in more fees or interest, as applicable, being
paid than if computed on the basis of a 365-day year), or, in the case of interest in respect of
Letters of Credit denominated in Alternative Currencies as to which market practice differs from
the foregoing, in accordance with such market practice. Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day
on which the Loan or such portion is paid, provided that any Loan that is repaid on the
same day on which it is made shall, subject to Section 2.12(a), bear interest for one day.
Each determination by the Administrative Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.



     2.11 Evidence of Debt.



     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note,
which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may
attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.



40









 





     (b) In addition to the accounts and records referred to in subsection (a), each Revolving
Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts
or records evidencing the purchases and sales by such Revolving Lender of participations in Letters
of Credit. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.



     2.12 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in US Dollars and in immediately available funds not later than 2:00 p.m. on the
date specified herein. The Administrative Agent will promptly distribute to each Lender its
ratable share (or other applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender’s Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day
and any applicable interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.




(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent
may assume that such Lender has made such share available on such date in accordance with
Section 2.03 (or, in the case of a Borrowing of Base Rate Loans, that such Lender
has made such share available in accordance with and at the time required by Section
2.03) and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable Lender and
the Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by
such Lender, the Overnight Rate, plus any administrative processing or similar fees
customarily charged by the Administrative Agent in connection with the foregoing, and (B)
in the case of a payment to be made by the Borrower, the interest rate applicable to Base
Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent shall promptly remit
to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays its share of the applicable Borrowing to the Administrative Agent, then the
amount so paid shall



41









 








constitute such Lender’s Revolving Loan or Pro Rata Term Share of the Term Loan, as
applicable included in such Borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have failed to make
such payment to the Administrative Agent.




     (ii) Payments by Borrower; Presumptions by Administrative Agent. 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 Revolving Lenders, any
Term Loan Lenders or the L/C Issuer 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 Revolving
Lenders, any Term Loan Lenders or the L/C Issuer, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the Lenders or
the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in
immediately available funds 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 Overnight Rate.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder, as
applicable, to make Revolving Loans, to fund their respective Pro Rata Term Share of the Term Loan,
to fund participations in Letters of Credit and to make payments pursuant to Section
10.04(c) are several and not joint. The failure of any Lender to make any Revolving Loan, to
fund their respective Pro Rata Term Share of the Term Loan, to fund any such participation or to
make any payment under Section 10.04(c) on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Revolving Loan, to fund its Pro Rata
Term Share of the Term Loan, to purchase its participation or to make its payment under Section
10.04(c).



     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.




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     2.13 Sharing of Payments by Lenders.



     (a) Sharing of Payments by Revolving Lenders. If any Revolving Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Revolving Loans made by it or the participations in L/C
Obligations held by it resulting in such Revolving Lender’s receiving payment of a proportion of
the aggregate amount of such Revolving Loans or participations and accrued interest thereon greater
than its Pro Rata Revolving Share thereof as provided herein, then the Revolving Lender receiving
such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase
(for cash at face value) participations in the Revolving Loans and subparticipations in L/C
Obligations of the other Revolving Lenders, or make such other adjustments as shall be equitable,
so that the benefit of all such payments shall be shared by the Revolving Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective
Revolving Loans and other amounts owing them, provided that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this subsection shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express terms of this
Agreement or (y) any payment obtained by a Revolving Lender as consideration for the
assignment of or sale of a participation in any of its Revolving Loans or subparticipations
in L/C Obligations to any assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this subsection shall apply).



     (b) Sharing of Payments by Term Loan Lenders. If any Term Loan Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any portion of the Term Loan made by it resulting in such Term Loan
Lender’s receiving payment of a proportion of the aggregate amount of such portion of the Term Loan
and accrued interest thereon greater than its Pro Rata Term Share thereof as provided herein, then
the Term Loan Lender receiving such greater proportion shall (a) notify the Administrative Agent of
such fact, and (b) purchase (for cash at face value) participations in the portions of the Term
Loan of the other Term Loan Lenders, or make such other adjustments as shall be equitable, so that
the benefit of all such payments shall be shared by the Term Loan Lenders ratably in accordance
with the aggregate amount of principal of and accrued interest on their respective portion of the
Term Loan and other amounts owing them, provided that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this subsection shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express terms of



43









 








this
Agreement or (y) any payment obtained by a Term Loan Lender as consideration for the
assignment of or sale of a participation in any of its portion of the Term Loan to any
assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which
the provisions of this subsection shall apply).



     (c) The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Revolving Lender or Term Loan Lender, as the case may be, acquiring
a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of
setoff 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.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes, provided that if the Borrower
shall be required by applicable law to deduct any Indemnified 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, Lender or L/C Issuer, 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 timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.



     (b) [Reserved.]




     (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and the L/C Issuer, within 10 days after demand therefor, for the full amount of
any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified 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 the L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or
the L/C Issuer, shall be conclusive absent manifest error.



     (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
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.



44









 





     (e) Status of Lenders. 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 resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.



     Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.



     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund of any 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, it shall pay to the Borrower an amount equal to such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under
this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental Authority



45









 







with respect to such refund), provided that the Borrower, upon the request of the
Administrative Agent, such Lender or the L/C Issuer, 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, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other Person.



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, US Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base
Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of
such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted.



     3.03 Inability to Determine Rates.




     (a) If the Required Revolving Lenders determine that for any reason in connection with any
request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) US Dollar
deposits are not being offered to banks in the London interbank eurodollar market for the
applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurodollar Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the
cost to such Revolving Lenders of funding such Revolving Loan, the Administrative Agent will
promptly so notify the Borrower and each Revolving Lender. Thereafter, the obligation of the
Revolving Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Revolving Lenders) revokes such notice.
Upon receipt of such notice, the Borrower may revoke any pending request for a Revolving Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Revolving Borrowing of Base Rate Loans in the amount
specified therein.



     (b) If the Required Term Loan Lenders determine that for any reason in connection with any
request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) US Dollar
deposits are not being offered to banks in the London interbank eurodollar market



46









 







for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Term Loan Lenders of funding such Term Loan Segments, the Administrative
Agent will promptly so notify the Borrower and each Term Loan Lender. Thereafter, the obligation
of the Term Loan Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Term Loan Lenders) revokes such notice.
Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans under the Term Loan Facility or, failing
that, will be deemed to have converted such request into a request for a Borrowing of Base Rate
Loans under the Term Loan Facility in the amount specified therein.



     3.04 Increased Costs; Reserves on Eurodollar Rate Loans.



     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e)) or the L/C Issuer; or




     (ii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s



47









 







holding company with respect to capital adequacy), then from time to time the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for
any such reduction suffered.



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



     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than six months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long
as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the Borrower shall have
received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and payable 10 days from
receipt of such notice.



     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower; or



48









 







     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.13;



including any foreign exchange loss and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the
deposits from which such funds were obtained or from performance of any foreign exchange contract.
The Borrower shall also pay any customary administrative fees charged by such Lender in connection
with the foregoing.



     For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London
interbank eurodollar market for a comparable amount and for a comparable period, whether or not
such Eurodollar Rate Loan was in fact so funded.



     3.06 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or 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 3.01, or if
any Lender gives a notice pursuant to Section 3.02, 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 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, 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) Replacement of Lenders. If any Lender requests compensation under Section
3.04, 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 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.



     3.07 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender
to make its initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly



49









 







executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or,
in the case of certificates of governmental officials, a recent date before the Closing Date) and
each in form and substance reasonably satisfactory to the Administrative Agent:




     (i) executed counterparts of this Agreement and the Guaranty;




     (ii) (A) Revolving Loan Notes executed by the Borrower in favor of each Revolving
Lender requesting a Note and (B) Term Loan Notes executed by a Borrower in favor of each
Term Loan Lender requesting such a Note;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may require evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;




     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that the Borrower
and each other Loan Party is validly existing and in good standing in its jurisdiction of
organization;




     (v) a favorable opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the
Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set
forth in Exhibit F and such other matters concerning the Loan Parties and the Loan
Documents as the Administrative Agent may reasonably request;




     (vi) a certificate of a Responsible Officer of each Loan Party stating that no
consents, licenses or approvals are required in connection with the execution, delivery and
performance by such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party;




     (vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied,
and (B) that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect;




     (viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter
ended on March 31, 2007, signed by a Responsible Officer of the Borrower;




     (ix) evidence of all insurance maintained by the Borrower and its subsidiaries;




     (x) an initial Revolving Loan Notice, if any; and




     (xi) an initial Term Loan Interest Rate Selection Notice, if any.



     (b) Any expenses required to be reimbursed on or before the Closing Date shall have been paid.



50









 





     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by
the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of such fees, charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude a final settling of
accounts between the Borrower and the Administrative Agent).



     (d) The Closing Date shall have occurred on or before September 30, 2007.



     Without limiting the generality of the provisions of the last paragraph of Section
9.03, for purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.



     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request
for Credit Extension (other than a Revolving Loan Notice or a Term Loan Interest Rate Selection
Notice requesting only a conversion of the applicable Loans or Segments of one Type to the other
Type, or a continuation of Eurodollar Rate Loans or Eurodollar Rate Segments, as applicable) is
subject to the following conditions precedent:



     (a) The representations and warranties of the Borrower and each other Loan Party contained in
Article V or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct in all material
respects on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date, and except that for purposes of
this Section 4.02, the representations and warranties contained in subsections (a) and (b)
of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant
to clauses (a) and (b), respectively, of Section 6.01.



     (b) No Default shall exist, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.



     (c) The Administrative Agent and, if applicable, the L/C Issuer shall have received a Request
for Credit Extension in accordance with the requirements hereof.



     (d) In the case of an L/C Credit Extension to be denominated in an Alternative Currency, there
shall not have occurred any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent or the L/C Issuer would make it impracticable for such L/C Credit Extension
to be denominated in the relevant Alternative Currency.



     Each Request for Credit Extension (other than a Revolving Loan Notice or a Term Loan Interest
Rate Selection Notice requesting only a conversion of Revolving Loans or Segments, as



51









 







applicable, to the other Type or a continuation of Eurodollar Rate Loans or Eurodollar Rate
Segments, as applicable) submitted by the Borrower shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power. Each Loan Party and each Subsidiary thereof (a) is
duly organized or formed, validly existing and, as applicable, in good standing under the Laws of
the jurisdiction of its incorporation or organization, (b) has all requisite power and authority
and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease
its assets and carry on its business and (ii) execute, deliver and perform its obligations under
the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as
applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such qualification or license;
except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to be made under (i)
any Contractual Obligation to which such Person is a party or affecting such Person or the
properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree
of any Governmental Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law; except in each case referred to in clause (b) and clause (c), as
could not reasonably be expected to have a Material Adverse Effect.



     5.03 Governmental Authorization; Other Consents. No material approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Party of this Agreement or any other Loan Document.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms subject to and as limited by the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general
application affecting the rights and remedies of creditors and by equitable principles relating to
enforcement to the extent applicable.



52









 





     5.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present in all material respects the financial condition of the Borrower and its
subsidiaries as of the date thereof and their results of operations for the period covered thereby
in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness.



     (b) The unaudited consolidated balance sheet of the Borrower and its subsidiaries dated March
31, 2007, and the related consolidated and consolidating (without including investment funds)
statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter
ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all
material respects the financial condition of the Borrower and its subsidiaries as of the date
thereof and their results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
Schedule 5.05 sets forth all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its consolidated subsidiaries as of the date of such financial
statements, including liabilities for taxes, material commitments and Indebtedness which are not
set forth in such financial statements.



     (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Borrower, threatened, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby, or (b) which has a reasonable
possibility of being adversely determined and if adversely determined could reasonably be expected
to have a Material Adverse Effect.



     5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is in default under or
with respect to any Contractual Obligation that could reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from the consummation of
the transactions contemplated by this Agreement or any other Loan Document.



     5.08 Ownership of Property; Liens. Each of the Borrower and each Subsidiary has good title
to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of
its business, except for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The property of the Borrower and its
Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.



53









 





     5.09 Insurance. The properties of the Borrower and its Subsidiaries are adequately insured
with insurance companies that are not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks, as the Loan Parties believe are adequate.



     5.10 Taxes. The Borrower and its Subsidiaries have filed all material Federal, state and
other material tax returns and reports required to be filed, and have paid all Federal, state and
other material taxes, assessments, fees and other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect. Other than the
Tax Receivable Agreement, neither any Loan Party nor any Subsidiary thereof is party to any tax
sharing agreement.



     5.11 ERISA Compliance.



     (a) Except for non-compliance which could not reasonably be expected to have a Material
Adverse Effect, each Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of,
such qualification. The Borrower and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has been made with respect
to any Plan.



     (b) There are no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability in excess of US$10,000,000; (iii) neither the Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA
with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.



     5.12 Subsidiaries. The Borrower has no Subsidiaries other than those specifically disclosed
in Schedule 5.12.



54









 





     5.13 Margin Regulations; Investment Company Act.



     (a) The Borrower will not use the proceeds of any Credit Extension to purchase or carry margin
stock (within the meaning of Regulation U issued by the FRB).



     (b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of 1940.



     5.14 Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries
is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished (in writing) by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each
case, as modified or supplemented by other information so furnished) contains 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.



     5.15 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance in
all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.



     5.16 Taxpayer Identification Number. The Borrower’s true and correct U.S. taxpayer
identification number is set forth on Schedule 10.02.



     5.17 Intellectual Property; Licenses, Etc. Except for such failure to own or possess the
legal title to use that could not reasonably be expected to have Material Adverse Effect, the
Borrower and its Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights (collectively, “IP Rights”) that are necessary to the operation of their
respective businesses, without conflict with the rights of any other Person. Except for such
claims and infringements that could not reasonably be expected to have a Material Adverse Effect,
to the best knowledge of the Borrower, no slogan or other advertising device, product, process,
method, substance, part or other material now employed, or now contemplated to be employed, by the
Borrower or any Subsidiary infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrower,
threatened, which, either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.



55









 






ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Revolving Lender shall have any Revolving Credit Commitment hereunder, any Loan
or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in
Sections 6.01, 6.02, and 6.03) cause each Subsidiary to:



     6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) prior to effectiveness of the IPO,





     (i) as soon as available, but in any event within 90 days after the end of each fiscal
year of the Borrower (commencing with the fiscal year ended December 31, 2007), both
consolidated and consolidating (without including investment funds) balance sheets of the
Borrower and its subsidiaries as at the end of such fiscal year, and the related
consolidated and consolidating (without including investment funds) statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in reasonable detail
and prepared in accordance with GAAP, such consolidated statements to be audited and
accompanied by a report and opinion of Ernst & Young LLP or such other independent certified
public accountant of nationally recognized standing reasonably acceptable to the
Administrative Agent, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any “going concern” or
like qualification or exception or any qualification or exception as to the scope of such
audit and such consolidating statements to be certified by a Responsible Officer of the
Borrower to the effect that such statements are fairly stated in all material respects when
considered in relation to the consolidated financial statements of the Borrower and its
subsidiaries; and




     (ii) as soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal
quarter ended June 30, 2007), a consolidated and consolidating (without including investment
funds) balance sheet of the Borrower and its subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal
year then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, all in reasonable detail, such consolidated statements to be
certified by a Responsible Officer of the Borrower as fairly presenting the financial
condition, results of operations, shareholders’ equity and cash flows of the Borrower and
its subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments
and the absence of footnotes and such consolidating statements to be certified by a
Responsible Officer of the Borrower to the effect that such statements are fairly stated in
all material respects when considered in relation to the consolidated financial statements
of the Borrower and its subsidiaries.



56









 





     (b) following effectiveness of the IPO,




     (i) as soon as available, but in any event within 90 days (or such earlier time as
required by the SEC) after the end of each fiscal year of the Parent (commencing with the
fiscal year ended December 31, 2007), both consolidated and consolidating (without including
investment funds) balance sheets of the Parent and its subsidiaries as at the end of such
fiscal year, and the related consolidated and consolidating (without including investment
funds) statements of income or operations, shareholders’ equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP, such
consolidated statements to be audited and accompanied by a report and opinion of Ernst &
Young LLP or such other independent certified public accountant of nationally recognized
standing reasonably acceptable to the Administrative Agent, which report and opinion shall
be prepared in accordance with generally accepted auditing standards and shall not be
subject to any “going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit and such consolidating statements to be certified by
a Responsible Officer of the Parent to the effect that such statements are fairly stated in
all material respects when considered in relation to the consolidated financial statements
of the Parent and its subsidiaries; and




     (ii) as soon as available, but in any event within 45 days (or such earlier time as
required by the SEC) after the end of each of the first three fiscal quarters of each fiscal
year of the Parent (commencing with the fiscal quarter ended June 30, 2007), a consolidated
and consolidating (without including investment funds) balance sheet of the Parent and its
subsidiaries as at the end of such fiscal quarter, and the related consolidated statements
of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for
the portion of the Parent’s fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the previous fiscal
year and the corresponding portion of the previous fiscal year, all in reasonable detail,
such consolidated statements to be certified by a Responsible Officer of the Parent as
fairly presenting the financial condition, results of operations, shareholders’ equity and
cash flows of the Parent and its subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes and such consolidating
statements to be certified by a Responsible Officer of the Parent to the effect that such
statements are fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Parent and its subsidiaries.



     (c) As to any information contained in materials furnished pursuant to Section
6.02(d), the Borrower shall not be separately required to furnish such information under clause
(a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Borrower to
furnish the information and materials described in clauses (a) and (b) above at the times specified
therein.



     6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in
form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:



57









 





     (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a)(i) and 6.01(b)(i), a certificate of its independent certified public accounts
certifying such financial statements and stating that in making the examination necessary therefor
no knowledge was obtained of any Default under the financial covenants set forth herein or, if any
such Default shall exist, stating the nature and status of such event;



     (b) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b) (commencing with the delivery of the financial statements for the
fiscal quarter ended June 30, 2007), a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower and notice of any material change in accounting policies or
financial reporting practices by the Borrower or any Subsidiary;



     (c) following effectiveness of the IPO, promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or communication sent to the
stockholders of the Parent, and copies of all annual, regular, periodic and special reports and
registration statements which the Parent may file or be required to file with the SEC under Section
13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto; and



     (d) promptly, and in any event within five Business Days after receipt thereof by any Loan
Party, the Parent or any subsidiary of any thereof, copies of each notice or other correspondence
received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any
material investigation or possible material investigation or other material inquiry by such agency
regarding financial or other operational results of any Loan Party, the Parent or any subsidiary of
any thereof; and



     (e) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower, the Parent or any subsidiary of either thereof, or compliance with the
terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower or the Parent posts such documents, or provides a
link thereto on the Borrower’s or the Parent’s website on the Internet at the website address
listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s or
the Parent’s behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that: (i) the Borrower or the Parent, as applicable,
shall deliver paper copies of such documents to the Administrative Agent or any Lender that
requests the Borrower or the Parent, as applicable, to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower or the Parent, as applicable, shall notify the Administrative Agent and each
Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance the Borrower shall be
required to provide paper



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copies of the Compliance Certificates required by Section 6.02(b) to the
Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have
no obligation to request the delivery or to maintain copies of the documents referred to above, and
in any event shall have no responsibility to monitor compliance by the Borrower or the Parent with
any such request for delivery, and each Lender shall be solely responsible for requesting delivery
to it or maintaining its copies of such documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the
Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower
hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material
non-public information with respect to the Borrower or its Affiliates, or the respective securities
of any of the foregoing, and who may be engaged in investment and other market-related activities
with respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower
Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked
“PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to
have authorized the Administrative Agent, the L/C Issuer and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to the Borrower or its
securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Investor”; and
(z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked
“PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public
Investor”.



     6.03 Notices. Promptly notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default;




     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or proceeding affecting
the Borrower or any Subsidiary; and



     (c) of the occurrence of any ERISA Event.



     Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and
stating what action the Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 6.03(a) shall describe with particularity any and all provisions of
this Agreement and any other Loan Document that have been breached.



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     6.04 Payment of Taxes. Pay and discharge as the same shall become due and payable, all its
material tax liabilities, assessments and governmental charges or levies upon it or its properties
or assets, unless the same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower or
such Subsidiary.



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing (except to the extent the failure to maintain good
standing could not reasonably be expected to have a Material Adverse Effect) under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section 7.03 or
7.04; (b) take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of its business, except to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals
and replacements thereof except where the failure to do so could not reasonably be expected to have
a Material Adverse Effect.



     6.07 Maintenance of Insurance. Maintain adequate insurance with insurance companies not
Affiliates of the Borrower, of such types and in such amounts as Borrower believes to be adequate
and providing for not less than 30 days’ (or, in the case of non-payment, 10 days’) prior notice to
the Administrative Agent of termination, lapse or cancellation of such insurance.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.



     6.09 Books and Records. (a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Borrower or such Subsidiary, as
the case may be; and (b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory jurisdiction over the
Borrower or such Subsidiary, as the case may be.



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     6.10 Inspection Rights.



     Permit representatives and independent contractors of the Administrative Agent and each Lender
to visit and inspect any of its Properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants (and the Loan Parties
shall be afforded the opportunity to participate in any discussions with such directors, officers,
and independent public accountants), at such reasonable times during normal business hours but not
more frequently than twice each fiscal year, upon reasonable advance notice to the Borrower;
provided that absent an Event of Default the Borrower shall not be required to pay the
expenses related thereto more frequently than once each fiscal year; and provided
further that during the existence of an Event of Default the Administrative Agent (or any
of its representatives) may do any of the foregoing at the expense of the Borrower at any time
during normal business hours, without advance notice and as often as may be reasonably desired.



     6.11 Use of Proceeds. Use the proceeds of (i) the Revolving Credit Facility for general
corporate purposes not in contravention of any Law or of any Loan Document and (ii) the Term Loan
Facility to make a cash dividend to the members of the Borrower on or after the Closing Date (the
“Specified Dividend”).



     6.12 Additional Guarantors. Notify the Administrative Agent at the time that any Person
becomes a Domestic Subsidiary, and promptly thereafter (and in any event within 30 days), cause
such Person (other than Excluded Subsidiaries) to (a) become a Guarantor by executing and
delivering to the Administrative Agent a counterpart of the Guaranty, a Guaranty Joinder Agreement
or such other document as the Administrative Agent shall deem appropriate for such purpose and (b)
deliver to the Administrative Agent documents of the types referred to in clauses (iii) and (iv) of
Section 4.01(a) and, if requested by Administrative Agent, favorable opinions of counsel to
such Person (which shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (a)), all in form, content and scope
reasonably satisfactory to the Administrative Agent. For avoidance of doubt, only operating
Subsidiaries of the Borrower will be required to become Guarantors as described in this Section
6.12, and in no case will Subsidiaries which are investment funds be required to become
Guarantors.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Revolving Lender shall have any Revolving Credit Commitment hereunder, any Loan
or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall not, nor shall it permit any Subsidiary to, directly or
indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:



     (a) Liens pursuant to any Loan Document;



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     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the
amount secured or benefited thereby is not increased except as contemplated by Section
7.02(b), and (iii) any renewal or extension of the obligations secured or benefited thereby is
permitted by Section 7.02(b);



     (c) Liens for taxes, assessments or government charges or levies not yet due or which are
being contested in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable Person in accordance
with GAAP;



     (d) statutory Liens of landlords and carriers’, warehousemen’s, mechanics’, materialmen’s,
suppliers’, repairmen’s or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person;



     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;



     (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;



     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;



     (h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.01(h);



     (i) leases or subleases granted to others not interfering in any material respect with the
business of the Borrower or its subsidiaries;



     (j) Liens securing Indebtedness permitted under Section 7.02(e); provided that
such Liens do not at any time encumber any property other than the property financed by such
Indebtedness;



     (k) normal and customary rights of setoff upon deposits of cash in favor of banks or other
depository institutions;



     (l) UCC financing statements filed for notice purposes only and not to perfect any Lien
(unless such Lien is otherwise permitted under this Section 7.01); and



     (m) Liens securing Indebtedness in an amount not to exceed US$5,000,000.



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     7.02 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any
refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of
such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder and (ii) the terms relating to principal amount,
amortization, maturity, collateral (if any) and subordination (if any), and other material terms
taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of
any agreement entered into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Loan Parties or the Lenders than the terms of any
agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended
and the interest rate applicable to any such refinancing, refunding, renewing or extending
Indebtedness does not exceed the then applicable market interest rate;



     (c) Guarantees of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted
hereunder of the Borrower or any other Guarantor;



     (d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under any Swap Contract, provided that (i) such obligations are (or were) entered
into by such Person for the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by such Person, or
changes in the value of securities issued by such Person, and not for purposes of speculation or
taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the
non-defaulting party from its obligation to make payments on outstanding transactions to the
defaulting party;



     (e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in Section
7.01(i); provided, however, that the aggregate amount of all such Indebtedness
at any one time outstanding shall not exceed US$2,500,000;



     (f) Indebtedness in an aggregate principal amount not to exceed US$10,000,000 at any time
outstanding;



     (g) Funded Indebtedness of the type described in paragraph (g) of the definition of Funded
Indebtedness to the extent such Funded Indebtedness is an obligation to make any payment not
prohibited as a Restricted Payment under Section 7.05; and



     (h) Indebtedness owing to the Borrower or any Guarantor.



     7.03 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that:



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     (a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall
be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any Guarantor is merging with another Subsidiary, the Guarantor shall be the continuing
or surviving Person;



     (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the
transferor in such a transaction is a Guarantor, then the transferee must either be the Borrower or
a Guarantor; and



     (c) any Subsidiary may Dispose of all or substantially all of its assets to or in favor of any
Person in one transaction or in a series of transactions, provided that such Disposition or
Dispositions satisfy the requirements of Section 7.04(f).



     7.04 Dispositions. Make any Disposition, except:



     (a) Dispositions of obsolete or worn out property or property no longer used or usable in the
business of the Borrower, whether now owned or hereafter acquired, in the ordinary course of
business;



     (b) Dispositions of inventory and investments in the ordinary course of business;




     (c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;



     (d) Dispositions of property by Borrower or any Subsidiary to the Borrower or to a Subsidiary;
provided that if the transferor of such property is the Borrower or a Guarantor, the
transferee thereof must either be the Borrower or a Guarantor;



     (e) Dispositions permitted by Section 7.03; and




     (f) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this
Section 7.04; provided that the aggregate book value of all property Disposed of in
reliance on this clause (f) in any fiscal year shall not exceed US$5,000,000.



     7.05 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:



     (a) each Subsidiary may make Restricted Payments to the Borrower, the Guarantors and any other
Person that owns an Equity Interest in such Subsidiary, ratably according to their respective
holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;



     (b) the Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such Person;



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     (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity
Interests issued by it with the proceeds received from the substantially concurrent issue of new
shares of its common stock or other common Equity Interests;



     (d) the Borrower may make the Specified Dividend;




     (e) the Loan Parties may, for any period, make other Restricted Payments in the form of
Distributions for the payment of taxes in an amount equal to taxes that would be owed (including
estimated taxes), as determined by the Borrowers in their reasonable discretion (using reasonable
consistent assumptions), by any Person as a result of its direct or indirect ownership of a Loan
Party or Subsidiary; provided that such Distributions for such period pursuant to this
clause (e) shall not exceed an amount equal to the product of the Presumed Tax Rate and the taxable
income of the Loan Parties and their Subsidiaries for such period, less any prior Distributions for
estimated taxes (collectively, “Permitted Tax Distributions ”); and



     (f) the Borrower may (i) declare cash dividends to the holders of its Equity Interests, so
long as no Event of Default shall have occurred and be continuing at the time of such declaration
or would result therefrom; (ii) pay cash dividends to the holders of its Equity Interests, so long
as no Event of Default described in Section 8.01(a) or (f) or resulting from a
violation of Section 7.10 shall have occurred and be continuing at the time of such payment
or would result therefrom; and (iii) purchase, redeem or otherwise acquire for cash Equity
Interests issued by it, so long as no Event of Default shall have occurred and be continuing at the
time of such purchase, redemption or other acquisition.



     7.06 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Borrower and its Subsidiaries on the date
hereof or any business substantially related, ancillary or incidental thereto.



     7.07 Transactions with Affiliates. Enter into any transaction of any kind with any officer,
director or Affiliate of any Loan Party, whether or not in the ordinary course of business, other
than



     (a) on terms substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than such an officer, director or Affiliate;



     (b) Loans and advances to officers and directors of any Loan Party in the ordinary course of
business in an aggregate principal amount at any time outstanding not greater than US$1,000,000;



     (c) transactions expressly permitted under this Agreement;




     (d) reasonable compensation and reimbursement of expenses of officers and directors of any
Loan Party and the granting of Equity Interests to any such Persons;



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     (e) investments by officers, directors and Affiliates of any Loan Party in investment funds
maintained by any Loan Party without the payment of normal fees or charges related thereto;



     (f) transactions with any investment fund maintained by any Loan Party in the ordinary course
of business; and



     (g) payments to the Parent as necessary for its operating expenses in the ordinary course of
business.



     7.08 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that limits the ability (i) of any Subsidiary to make Restricted
Payments to the Borrower or any Guarantor, (ii) to transfer property to the Borrower or any
Guarantor, (iii) of any Subsidiary to Guarantee the Indebtedness of the Borrower or (iv) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such
Person; provided, however, that this Section 7.08 shall not prohibit (a)
any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under
Section 7.02(e) solely to the extent any such negative pledge relates to the property
financed by or the subject of such Indebtedness, (b) any restrictions consisting of customary
provisions restricting assignment, subletting or other transfers contained in leases, licenses or
other agreements in the ordinary course of business so long as such restrictions do not extend to
assets other than those that are the subject of such lease, license or other agreements, (c)
restrictions with respect to any asset pending the close of the sale of such asset, or (d) exists
in any agreement in effect at the time such Subsidiary becomes a Subsidiary of Borrower, so long as
such agreement was not entered into in contemplation of such person becoming a Subsidiary.



     7.09 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



     7.10 Financial Covenants.



     (a) Minimum Assets Under Management. Permit Assets Under Management at any time to be
less than US$20,000,000,000.



     (b) Consolidated EBITDA. Permit Consolidated EBITDA as of the end of any consecutive
four fiscal quarter period of the Borrower to be less than US$60,000,000.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii)



66









 







within three Business Days after the same becomes due, any interest on any Loan or on any L/C
Obligation, or any fee due hereunder, or (iii) within ten Business Days after the same becomes due,
any other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.03, 6.05(a), 6.10, 6.11
or 6.12 or Article VII; or



     (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for 30 days; or



     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect when made or deemed made; or



     (e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated credit arrangement)
of more than US$10,000,000, and such failure shall continue after the applicable grace period, or
(B) fails to observe or perform any other agreement or condition relating to any such Indebtedness
or contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to
be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the Borrower or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event
(as so defined) under such Swap Contract as to which the Borrower or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such
Subsidiary as a result thereof is greater than US$10,000,000; or



     (f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any material part
of its



67









 







property is instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) The Borrower or any Subsidiary becomes
unable or admits in writing its inability or fails generally to pay its debts as they become due,
or (ii) any writ or warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is not released, vacated or
fully bonded within 30 days after its issue or levy; or



     (h) Judgments. There is entered against the Borrower or any Subsidiary (i) one or
more final judgments or orders for the payment of money in an aggregate amount (as to all such
judgments or orders) exceeding US$10,000,000 (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) one or more non-monetary
final judgments that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case and have not been stayed, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of
30 consecutive days during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the US$10,000,000, or (ii) the Borrower or any ERISA Affiliate fails to pay when due,
after the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of US$10,000,000; or



     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan
Party or any other Person contests in any manner the validity or enforceability of any Loan
Document; or any Loan Party denies that it has any or further liability or obligation under any
Loan Document, or purports to revoke, terminate or rescind any Loan Document; or



     (k) Change of Voting Control. There occurs any Change of Voting Control.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;



68









 






     (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and



     (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer under the Loan Documents;



provided, however, that upon the occurrence of Event of Default under Section
8.01(f), the obligation of each Lender to make Loans and any obligation of the L/C Issuer to
make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall automatically become due
and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act of the
Administrative Agent or any Lender.



     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall be applied by
the Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees and amounts payable
under Hedge Agreements and Cash Management Agreements) payable to the Lenders and the L/C Issuer
(including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer)
and amounts payable under Article III), ratably among them in proportion to the respective
amounts described in this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts described in this
clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans, L/C Borrowings and Obligations arising under Hedge Agreements and Cash Management
Agreements, ratably among the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management
Banks in proportion to the respective amounts described in this clause Fourth held by them;



     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit; and



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     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.


Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.




ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents 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 hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of any of such
provisions.



     9.02 Rights as a Lender. The Person 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 the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



     9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable law;
and



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     (c) shall not, except as expressly set forth herein and in the other Loan Documents, 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 Affiliates that is communicated to or obtained by the Person serving as
the 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 (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



     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 this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     9.04 Reliance by 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 (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated 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 have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. 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.



     9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document 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 of its duties and exercise its rights and powers by or through
their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any



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such sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities as Administrative
Agent.



     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, with the consent of the
Borrower, to appoint a successor, which shall be a bank with an office in the United States and be
organized under the laws of the United States of America or any state thereof, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders, consented to by the Borrower, 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 and the L/C Issuer, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that if
the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). 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 retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.04 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 the retiring Administrative Agent was acting as
Administrative Agent.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring L/C Issuer, (b) the retiring L/C Issuer
shall be discharged from all of their respective duties and obligations hereunder or under the
other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit.



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     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties 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 and the L/C Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties 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 Loan
Document or any related agreement or any document furnished hereunder or thereunder.



     9.08 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.04(i) and (j),
2.09 and 10.04) allowed in such judicial proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.



     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer in any such proceeding.



     9.09 Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize the
Administrative Agent to release any Guarantor from its obligations under the Guaranty if such
Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.



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     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release any Guarantor from its obligations under
the Guaranty pursuant to this Section 9.09.



ARTICLE X.

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the Borrower or the
applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:



     (a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;



     (b) extend or increase (i) the Revolving Credit Commitment of any Revolving Lender (or
reinstate any Revolving Credit Commitment terminated pursuant to Section 8.02) without the
written consent of such Revolving Lender, or (ii) the obligation of any Term Loan Lender to make
any portion of the Term Loan without the written consent of such Term Loan Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayments of principal, interest, fees or other amounts due to the Lenders (or any of
them), including the Term Loan Maturity Date and the Revolving Credit Maturity Date, in each case
without the written consent of each Lender directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iii) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or
to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default
Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if
the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing
or to reduce any fee payable hereunder;



     (e) change Section 2.13 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



     (f) amend Section 1.08 or the definition of “Alternative Currency” without the written
consent of the L/C Issuer;



     (g) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend,



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waive or otherwise modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender;



     (h) change any provision of the definition of “Required Revolving Lenders” or any other
provision hereof specifying the number or percentage of Revolving Lenders required to amend, waive
or otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Revolving Lender;



     (i) change any provision of the definition of “Required Term Loan Lenders” or any other
provision hereof specifying the number or percentage of Term Loan Lenders required to amend, waive
or otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Term Loan Lender; or



     (j) release all or substantially all of the value of the Guaranty without the written consent
of each Lender, except to the extent the release of any Guarantor is permitted pursuant to
Section 9.09 (in which case such release may be made by the Administrative Agent acting
alone);


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required above, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iii) no
Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by
the parties thereto and (iv) no amendment, waiver or consent which has the effect of enabling the
Borrower to satisfy any condition to a Borrowing contained in subsection 4.02 hereof which,
but for such amendment, waiver or consent would not be satisfied, shall be effective to require the
Revolving Lenders or the L/C Issuer to make any additional Revolving Loan, or to issue any
additional or renew any existing Letter of Credit, unless and until the Required Revolving Lenders
(or, if applicable, all Revolving Lenders) shall have approved such amendment, waiver or consent.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Revolving Credit
Commitment of such Lender may not be increased or extended without the consent of such Lender.




     If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document (each such Lender, a “Non-Consenting Lender”) that requires
the consent of each Lender and that has been approved by the Required Lenders, the Borrower may
replace such Non-Consenting Lender in accordance with subsection 10.13; provided
that such amendment, waiver, consent or release can be effected as a result of the assignment
contemplated by such Section (together with all other such assignments required by the Borrower to
be made pursuant to this paragraph).




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     10.02 Notices; Effectiveness; Electronic Communication.



     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (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 telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:




     (i) if to the Borrower, the Administrative Agent or the L/C Issuer, to the address,
telecopier number, electronic mail address or telephone number specified for such Person on
Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.



     Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection (b).



     (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. 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.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE



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ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In
no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to the Borrower, any Lender, the L/C Issuer or any other Person
for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or
otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower
Materials through the Internet, except to the extent that such losses, claims, damages, liabilities
or expenses are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Agent Party;
provided, however, that in no event shall any Agent Party have any liability to the
Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).



     (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, and the
L/C Issuer may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other Lender may change its
address, telecopier or telephone number for notices and other communications hereunder by notice to
the Borrower, the Administrative Agent and the L/C Issuer. In addition, each Lender agrees to
notify the Administrative Agent from time to time to ensure that the Administrative Agent has on
record (i) an effective address, contact name, telephone number, telecopier number and electronic
mail address to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one
individual at or on behalf of such Public Lender to at all times have selected the “Private Side
Information” or similar designation on the content declaration screen of the Platform in order to
enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable Law, including United States Federal and state securities Laws, to make
reference to Borrower Materials that are not made available through the “Public Side Information”
portion of the Platform and that may contain material non-public information with respect to the
Borrower or its securities for purposes of United States Federal or state securities laws.



     (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Revolving Loan Notices and Term Loan Interest Rate Selection Notices) given by or on
behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice given by or on behalf of the Borrower. All telephonic
notices to and other telephonic communications with the



77









 







Administrative Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.



     10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.



     10.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable documented
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection
with the preparation, negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable documented out-of-pocket expenses incurred by the L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all documented out-of-pocket expenses incurred by the Administrative Agent or
the L/C Issuer (including the reasonable fees, charges and disbursements of any counsel for the
Administrative Agent or the L/C Issuer) in connection with the enforcement or protection of its
rights (A) in connection with this Agreement and the other Loan Documents, including its rights
under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, 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 documented fees, charges and disbursements of any counsel for
any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party
or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder, the consummation of the transactions contemplated
hereby or thereby or, in the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of
Credit), or (iii) any actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or



78









 







any other theory, whether brought by a third party or by the Borrower or any other Loan Party,
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 (x) are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the bad faith, gross negligence or willful
misconduct of such Indemnitee or (y) do not involve a direct act or omission of the Borrower or its
Subsidiaries and are brought by an Indemnitee against any other Indemnitee.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s ratable 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 (or any such sub-agent) or the L/C Issuer in its capacity as such, or against
any Related Party of any of the foregoing acting for the Administrative Agent (or any such
sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, none of the Borrower, the Administrative Agent or any of the Lenders shall assert,
and each of them 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, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby,
any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed to such unintended recipients by such Indemnitee
through telecommunications, electronic or other information transmission systems in connection with
this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other
than for direct or actual damages resulting from the gross negligence or willful misconduct of such
Indemnitee as determined by a final and nonappealable judgment of a court of competent
jurisdiction.



     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent and the L/C Issuer, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such



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payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had not occurred, and (b)
each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the date such payment
is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this Agreement.



     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. 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 the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). 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
subsection (d) of this Section and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time 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 Revolving Credit Commitment and its Revolving Loans (including for purposes of this
subsection (b), participations in L/C Obligations) or of its Pro Rata Term Share of the Term Loan
at the time owing to it (such Lender’s portion of Loans, commitments and risk participations with
respect to each of the Revolving Credit Facility and the Term Loan Facility (each, an
“Applicable Facility”) being referred to in this Section 10.06 as its “Applicable
Share”)) at the time owing to it); provided that any such assignment shall be subject to the
following conditions:




     (i) Minimum Amounts. Except in the case of an assignment of the entire
remaining amount of the assigning Lender’s Applicable Share of the Applicable Facility at
the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender
or an Approved Fund with respect to a Lender, the aggregate amount of the Applicable Share
(which for this purpose includes Loans outstanding thereunder) with



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respect to each Applicable Facility, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than US$5,000,000 or an integral multiple of US$1,000,000 in excess thereof with
respect to the Revolving Credit Facility or the Term Loan Facility, unless in either case
each of the Administrative Agent and, so long as no Event of Default under Section
8.01(a) or 8.01(f) has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed; provided,
however, that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or to an
Eligible Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met.




     (ii) Proportionate Amounts. 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 with respect to the Applicable Facility, except that this clause (ii)
shall not prohibit any Lender from assigning all or a portion of its rights and obligations
among the Applicable Facilities on a non-pro rata basis.




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i) of this Section and, in addition:




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default under Section
8.01(a) or 8.01(f) has occurred and is continuing at the time of such
assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(1) any Revolving Credit Commitment or Revolving Loan if such assignment is to be a
Person that is not a Lender, an Affiliate of a Lender or an Approved Fund or (2) any
Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved
Fund;




     (C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding).




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of US$3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.



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     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.



     Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement 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 3.01, 3.04, 3.05,
and 10.04 with respect to facts and circumstances occurring prior to the effective date of
such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to
the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection 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
subsection (d) of this Section.



     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office 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 Revolving Credit Commitments of Revolving Lenders and principal amounts of the
Loans and L/C Obligations 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 shall 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.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment, if applicable, and/or the
Loans (including such Lender’s participations in L/C Obligations, if applicable) owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement.



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     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, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.13 as
though it were a Lender. In the event that any Lender sells a participation pursuant to this
Section 10.06(d), such Lender shall maintain with respect to such participation, acting
solely for this purpose as an agent of the Borrower, a register comparable to the Register (the
“Participant Register”). Interests in the rights and/or obligations of a Lender under this
Agreement may be participated in whole or in part only by registration of such participation on
such Participant Register. If requested by the Administrative Agent or the Borrower, such Lender
shall make the Participant Register available to Administrative Agent or the Borrower upon either
(i) the exercise by a Participant of remedies hereunder or (ii) a request for the Register by the
IRS.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 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 3.01 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 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     (h) Resignation as L/C Issuer after Assignment. Notwithstanding anything to the
contrary contained herein, if at any time Bank of America assigns all of its Revolving Credit



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Commitment and Revolving Loans pursuant to subsection (b) above, Bank of America may, upon 30
days’ notice to the Borrower and the Lenders, resign as L/C Issuer. In the event of any such
resignation as L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders a
successor L/C Issuer hereunder; provided, however, that no failure by the Borrower
to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer. If
Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and
duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Revolving Lenders to make Base Rate Revolving Loans or fund
risk participations in Drawn Amounts pursuant to Section 2.04(c)). Upon the appointment of
a successor L/C Issuer, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer, and (b) the successor L/C Issuer
shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such successor or make other arrangements satisfactory to Bank of America to effectively
assume the obligations of Bank of America with respect to such Letters of Credit.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below) and to not use the Information for any purpose except in connection with the Loan
Documents, except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, advisors and
representatives (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 purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other 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 and its obligations, (g) with the prior written consent of the Borrower or (h) to the
extent such Information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than the Borrower.



     For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary. 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.



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     Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including United States Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower now or hereafter existing under this Agreement or any
other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or
office of such Lender or the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender
and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall not affect
the validity of such setoff and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement and the other Loan Documents
may be executed in counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement and the other Loan Documents 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 and the other Loan Documents shall become effective when they
shall have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature



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page of this Agreement and any other Loan Document by telecopy or electronic format (including   .pdf) shall be effective as delivery of a manually executed counterpart of this Agreement and the
other Loan Documents.



     10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
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 3.01, if any Lender is a
Defaulting Lender or if any Lender is a Non-Consenting Lender, 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, and consents required by, Section 10.06), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:



     (a) the Borrower or the assignee shall have paid to the Administrative Agent the assignment
fee specified in Section 10.06(b);



     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
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);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



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     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or 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.



     10.14 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. EACH LOAN PARTY, EACH LENDER, THE L/C ISSUER AND THE
ADMINISTRATIVE AGENT IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF
THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE 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 IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C
ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     (c) WAIVER OF VENUE. EACH LOAN PARTY, EACH LENDER, THE L/C ISSUER AND THE
ADMINISTRATIVE AGENT IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY
COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY



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PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent are arm’s-length commercial
transactions between the Borrower and its Affiliates, on the one hand, and the Administrative
Agent, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and
tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of
evaluating, and understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent is and has
been acting solely as a principal and, except as expressly agreed in writing by the relevant
parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the
Borrower or any of its Affiliates or any other Person and (B) the Administrative Agent and no
obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan Documents and
(iii) the Administrative Agent and its Affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Borrower and it Affiliates, and the
Administrative Agent has no obligation to disclose any of such interests to the Borrower or its
Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any
claims that it may have against the Administrative Agent with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.



     10.17 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined)
and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name



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and address of the Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower in accordance with the Act.



     10.18 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day on which final judgment is given. The obligation of the Borrower in respect of
any such sum due from it to the Administrative Agent, the L/C Issuer or any Lender hereunder or
under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent
that on the Business Day following receipt by the Administrative Agent, the L/C Issuer or such
Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent, the L/C Issuer or such Lender, as the case may be, may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent, the L/C Issuer or any Lender from the Borrower in the Agreement Currency, the
Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent, the L/C Issuer or such Lender, as the case may be, against such loss. If the
amount of the Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent, the L/C Issuer or any Lender in such currency, the Administrative Agent or
such Lender, as the case may be, agrees to return the amount of any excess to the Borrower.



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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 	 	 
	 	 	PZENA INVESTMENT MANAGEMENT, LLC
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Wayne Palladino
 

Wayne Palladino
	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 






 









 







	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as

Administrative Agent
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Joshua A. Podietz
 

Joshua A. Podietz
	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 





	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender and L/C Issuer
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Joshua A. Podietz
 

Joshua A. Podietz
	 	 
	 

	 	Title:
	 	Vice President