exv10w1






Exhibit 10.1







 

 








PUBLISHED CUSIP NO. (REVOLVING FACILITY) 19259TAD6

PUBLISHED CUSIP NO. (TERM FACILITY) [                    ]




AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of November 20, 2007 and Amended and Restated as of April 29, 2009




among




COINSTAR, INC.,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,




and




The Other Lenders Party Hereto




JPMORGAN CHASE BANK, N.A.,

as Syndication Agent

for the Revolving Facility




KEYBANK NATIONAL ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION

and

WELLS FARGO BANK, N.A.,

as Co-Documentation Agents

for the Revolving Facility




BANC OF AMERICA SECURITIES LLC

and

J.P. MORGAN SECURITIES INC.,

as Joint Lead Arrangers and Joint Book Managers

for the Revolving Facility




BANC OF AMERICA SECURITIES LLC

and

WELLS FARGO BANK, N.A.,

as Joint Lead Arrangers and Joint Book Managers

for the Term Facility




 

 









 









 








TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	25	 
	1.03 Accounting Terms
	 	 	26	 
	1.04 Rounding
	 	 	26	 
	1.05 Times of Day
	 	 	26	 
	1.06 Letter of Credit Amounts
	 	 	27	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	27	 
	2.01 Committed Loans
	 	 	27	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	27	 
	2.03 Letters of Credit
	 	 	29	 
	2.04 Swing Line Loans
	 	 	39	 
	2.05 Prepayments
	 	 	42	 
	2.06 Termination or Reduction of Commitments
	 	 	43	 
	2.07 Repayment of Loans
	 	 	43	 
	2.08 Interest
	 	 	43	 
	2.09 Fees
	 	 	44	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	45	 
	2.11 Evidence of Debt
	 	 	45	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	46	 
	2.13 Sharing of Payments by Lenders
	 	 	48	 
	2.14 Increase in Term Commitments
	 	 	48	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	49	 
	3.01 Taxes
	 	 	49	 
	3.02 Illegality
	 	 	51	 
	3.03 Inability to Determine Rates
	 	 	52	 
	3.04 Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	52	 
	3.05 Compensation for Losses
	 	 	54	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	54	 
	3.07 Survival
	 	 	55	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	55	 
	4.01 Conditions of Initial Credit Extension
	 	 	55	 
	4.02 Conditions to all Credit Extensions
	 	 	55	 
	4.03 Effectiveness of Amendment and Restatement
	 	 	55	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	56	 
	5.01 Existence, Qualification and Power
	 	 	56	 
	5.02 Authorization; No Contravention
	 	 	56	 
	5.03 Governmental Authorization; Other Consents
	 	 	56	 
	5.04 Binding Effect
	 	 	57	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	57	 
	5.06 Litigation
	 	 	57	 
	5.07 No Default
	 	 	57	 
	5.08 Ownership of Property; Liens
	 	 	58	 






i 









 






	 	 	 	 	 
	Section	 	Page
	5.09 Environmental Compliance
	 	 	58	 
	5.10 Insurance
	 	 	58	 
	5.11 Taxes
	 	 	58	 
	5.12 ERISA Compliance
	 	 	58	 
	5.13 Subsidiaries; Equity Interests
	 	 	59	 
	5.14 Margin Regulations; Investment Company Act
	 	 	59	 
	5.15 Disclosure
	 	 	59	 
	5.16 Compliance with Laws
	 	 	60	 
	5.17 Taxpayer Identification Number
	 	 	60	 
	5.18 Intellectual Property; Licenses, Etc
	 	 	60	 
	5.19 Solvency
	 	 	60	 
	5.20 Automatic Coin Counting Machines
	 	 	60	 
	5.21 Collateral Documents
	 	 	61	 
	5.22 GroupEx Acquisition
	 	 	61	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	61	 
	6.01 Financial Statements
	 	 	61	 
	6.02 Certificates; Other Information
	 	 	62	 
	6.03 Notices
	 	 	64	 
	6.04 Payment of Obligations
	 	 	64	 
	6.05 Preservation of Existence, Etc
	 	 	64	 
	6.06 Maintenance of Properties
	 	 	65	 
	6.07 Maintenance of Insurance
	 	 	65	 
	6.08 Compliance with Laws
	 	 	65	 
	6.09 Books and Records
	 	 	65	 
	6.10 Inspection Rights
	 	 	65	 
	6.11 Use of Proceeds
	 	 	65	 
	6.12 Covenant to Guarantee Obligations and Give Security
	 	 	66	 
	6.13 Further Assurances
	 	 	67	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	68	 
	7.01 Liens
	 	 	68	 
	7.02 Investments
	 	 	69	 
	7.03 Indebtedness
	 	 	70	 
	7.04 Fundamental Changes
	 	 	72	 
	7.05 Dispositions
	 	 	72	 
	7.06 Restricted Payments
	 	 	73	 
	7.07 Change in Nature of Business
	 	 	74	 
	7.08 Transactions with Affiliates
	 	 	74	 
	7.09 Burdensome Agreements
	 	 	74	 
	7.10 Use of Proceeds
	 	 	74	 
	7.11 Optional Payments of other Indebtedness
	 	 	75	 
	7.12 Financial Covenants
	 	 	75	 
	7.13 Capital Expenditures
	 	 	75	 
	7.14 GroupEx Acquisition
	 	 	75	 
	7.15 Amendment of Certain Agreements
	 	 	76	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	76	 
	8.01 Events of Default
	 	 	76	 
	8.02 Remedies Upon Event of Default
	 	 	78	 
	8.03 Application of Funds
	 	 	78	 






ii 









 






	 	 	 	 	 
	Section	 	Page
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	79	 
	9.01 Appointment and Authority
	 	 	79	 
	9.02 Rights as a Lender
	 	 	80	 
	9.03 Exculpatory Provisions
	 	 	80	 
	9.04 Reliance by Administrative Agent
	 	 	81	 
	9.05 Delegation of Duties
	 	 	81	 
	9.06 Resignation of Administrative Agent
	 	 	82	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	82	 
	9.08 No Other Duties, Etc
	 	 	83	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	83	 
	9.10 Collateral and Guaranty Matters
	 	 	83	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	84	 
	10.01 Amendments, Etc
	 	 	84	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	86	 
	10.03 No Waiver; Cumulative Remedies
	 	 	88	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	88	 
	10.05 Payments Set Aside
	 	 	90	 
	10.06 Successors and Assigns
	 	 	90	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	94	 
	10.08 Right of Setoff
	 	 	95	 
	10.09 Interest Rate Limitation
	 	 	95	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	96	 
	10.11 Survival of Representations and Warranties
	 	 	96	 
	10.12 Severability
	 	 	96	 
	10.13 Replacement of Lenders
	 	 	96	 
	10.14 Governing Law; Jurisdiction; Etc
	 	 	97	 
	10.15 Waiver of Jury Trial
	 	 	98	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	98	 
	10.17 USA PATRIOT Act Notice
	 	 	99	 
	10.18 Joinder
	 	 	99	 
	10.19 ENTIRE AGREEMENT
	 	 	99	 
	 
	 	 	 	 
	SIGNATURES
	 	 	S-1	 





iii




 









 








SCHEDULES




	 	 	 
	1.01

	 	Existing Letters of Credit
	2.01(a)

	 	Revolving Commitments and Applicable Percentages
	2.01(b)

	 	Term Commitments
	5.06

	 	Litigation
	5.09

	 	Environmental Matters
	5.13

	 	Subsidiaries; Other Equity Investments
	5.18

	 	Intellectual Property Matters
	7.01

	 	Existing Liens
	7.02

	 	Existing Investments
	7.03

	 	Existing Indebtedness
	10.02

	 	Administrative Agent’s Office; Certain Addresses for Notices






EXHIBITS




	 	 	 
	 

	 	Form of
	 
	 	 
	A-1

	 	Committed Revolving Loan Notice
	A-2

	 	Committed Term Loan Notice
	B

	 	Swing Line Loan Notice
	C-1

	 	Revolving Note
	C-2

	 	Term Note
	D

	 	Compliance Certificate
	E

	 	Assignment and Assumption
	F

	 	Guarantee and Collateral Agreement
	G

	 	Opinion Matters





iv





 









 








AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of April
29, 2009, among COINSTAR, INC., a Delaware corporation (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, Swing Line Lender and L/C
Issuer.



     The Borrower, certain of the Lenders, the L/C Issuer, the Swing Line Lender, and the
Administrative Agent have heretofore entered into that certain Credit Agreement dated as of
November 20, 2007 (as heretofore amended or modified, the “Original Agreement”), pursuant
to which certain of the Lenders provide revolving credit loans, the Swing Line Lender provides
swing line loans, and the L/C Issuer issues (and the Lenders purchase participations in) letters of
credit from time to time.



     The Borrower has requested that the Original Agreement be amended in certain respects and, in
order to do so, that the Original Agreement be amended and restated in its entirety, and the
Lenders, the Swing Line Lender, the L/C Issuer, and the Administrative Agent 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 that the Original Agreement is amended, restated, ratified and confirmed to read
in its entirety 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 Fee Letter” means the Fee Letter dated October 4, 2007 between
the Borrower and the Administrative Agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account 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.



1









 





     “Aggregate Commitments” means the Aggregate Revolving Commitments and Aggregate Term
Commitments.



     “Aggregate Revolving Commitments” means the Commitments of the Revolving Lenders.



     “Aggregate Term Commitments” means the Commitments of the Term Lenders.



     “Agreement” means this Credit Agreement.



     “Amendment and Restatement Effective Date” means April 29, 2009.



     “Applicable Percentage” means with respect to any Revolving Lender at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Revolving Commitments
represented by such Revolving Lender’s Revolving Commitment at such time. If the commitment of
each Revolving Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate
Revolving Commitments have expired, then the Applicable Percentage of each Revolving Lender shall
be determined based on the Applicable Percentage of such Revolving Lender most recently in effect,
giving effect to any subsequent assignments. The initial Applicable Percentage of each Revolving
Lender is set forth opposite the name of such Revolving Lender on Schedule 2.01(a) or in
the Assignment and Assumption pursuant to which such Revolving Lender becomes a party hereto, as
applicable.



     “Applicable Rate” means (a) in respect of the Revolving Facility, the following
percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):



Applicable Rate




	 	 	 	 	 	 	 	 	 	 	 
	Pricing	 	Consolidated	 	Commitment	 	Eurodollar	 	Letter of	 	Base Rate
	Level	 	Leverage Ratio	 	Fee	 	Rate +	 	Credit Fee	 	+
	1
	 	£1.50 to 1.00
	 	0.50
	 	2.50
	 	2.50
	 	1.50
	2
	 	>1.50 to 1.00
but
 £2.00 to
1.00
	 	0.50
	 	2.75
	 	2.75
	 	1.75
	3
	 	>2.00 to 1.00
but
 £2.50 to
1.00
	 	0.50
	 	3.00
	 	3.00
	 	2.00
	4
	 	>2.50 to 1.00
but
 £3.00 to
1.00
	 	0.50
	 	3.25
	 	3.25
	 	2.25
	5
	 	>3.00 to 1.00
	 	0.50
	 	3.50
	 	3.50
	 	2.50






     and (b) in respect of the Term Facility, the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(b):



2









 





	 	 	 	 	 	 	 
	Pricing	 	Consolidated	 	Eurodollar	 	Base Rate
	Level	 	Leverage Ratio	 	Rate +	 	+
	1
	 	£1.50 to 1.00
	 	3.75
	 	2.75
	2
	 	>1.50 to 1.00 but
 £2.00 to
1.00
	 	4.00
	 	3.00
	3
	 	>2.00 to 1.00 but
 £2.50 to
1.00
	 	4.25
	 	3.25
	4
	 	>2.50 to 1.00 but
 £3.00 to
1.00
	 	4.50
	 	3.50
	5
	 	>3.00 to 1.00
	 	4.75
	 	3.75






     Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(b); provided that, if
a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing
Level 5 shall apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered until the first Business Day immediately following
the date such Compliance Certificate is delivered (provided that, the foregoing shall not
operate as a waiver of any Default or Event of Default that may exist as a result of the failure to
timely deliver such Compliance Certificate); and provided, further, that,
notwithstanding the Consolidated Leverage Ratio that may be set forth in any Compliance Certificate
delivered prior to such time, (x) in respect of the Revolving Facility, Pricing Level 1 or 2 shall
not apply from the Closing Date until the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(b) for the fiscal quarter
ended March 31, 2008, (y) in respect of the Revolving Facility, Pricing Level 5 shall apply from
February 12, 2009 until the first Business Day immediately following the date a Compliance
Certificate is delivered pursuant to Section 6.02(b) for the fiscal quarter ended March 31,
2009, and (z) in respect of the Term Facility, Pricing Level 4 shall apply from April 29, 2009
until the first Business Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 6.02(b) for the fiscal quarter ended March 31, 2009. Notwithstanding
anything to the contrary contained in this definition, the determination of the Applicable Rate for
any period shall be subject to the provisions of Section 2.10(b).



     “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.



     “Arrangers” means Banc of America Securities LLC and J.P. Morgan Securities Inc., in
their capacities as joint lead arrangers and joint book managers.



     “Arrangers’ Fee Letter” means the Fee Letter dated October 4, 2007 among the Borrower
and the Arrangers.



     “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.



3









 





     “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
E 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 for the fiscal year ended December 31, 2008, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date with respect to the Revolving Facility, (b) the date of
termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and (c) the
date of termination of the commitment of each Revolving Lender to make Revolving 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
highest of (a) the Federal Funds Rate plus 1/2 of 1%, (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” and (c) the
Eurodollar Rate that would be in effect for a one-month Interest Period if such Interest Period
began and was in effect on such day (or if such day is not a Business Day, the immediately
preceding Business Day) plus 1%. 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 Committed Loan” means a Committed Loan that is a Base Rate Loan.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



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



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



     “Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.



4









 





     “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 and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.



     “Capital Lease Obligations” means, as to any Person, the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes
of this Agreement, the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer,
automated clearinghouse and other cash management arrangements made or entered into at any time, or
in effect at any time, whether directly or indirectly, and whether as a result of assignment or
transfer or otherwise, between the Borrower or any Subsidiary and any Cash Management Bank.



     “Cash Management Bank” means a Lender or Affiliate of a Lender that is a party to a
Cash Management Agreement, in its capacity as party to such Cash Management Agreement;
provided, however that if such Person ceases to be a Lender or an Affiliate of a Lender,
such Person shall no longer be a “Cash Management Bank.”



     “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 request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



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




     (a) 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) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire, whether such right is exercisable immediately or only after
the passage of time (such right, an “option right”)), directly or indirectly, of
more than 35% of the equity securities of the Borrower entitled to vote for members of the
board of directors or equivalent governing body of the Borrower on a fully-diluted basis
(and taking into account all such securities that such person or group has the right to
acquire pursuant to any option right);



5









 






     (b) during any period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Borrower cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body; or




     (c) a “Change of Control” (or any other defined term having a similar purpose) as
defined in any agreement pursuant to which Indebtedness permitted by Section 7.03(h)
in a principal amount of at least $50,000,000 may be issued.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 were satisfied or waived in accordance with Section 10.01, which was November 20,
2007.



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



     “Coinstar Installation Agreements” means any and all contracts, agreements or other
arrangements of the Borrower or any Subsidiary concerning the placement or operation of automated
coin counting machines in a supermarket or other retail location of a third party and the payments
to such third party in connection therewith.



     “Collateral” means all of the “Collateral” and “Mortgaged Property”
referred to in the Collateral Documents and all of the other property that is or is intended under
the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent
for the benefit of the Secured Parties.



     “Collateral Documents” means, collectively, the Guarantee and Collateral Agreement,
any Mortgages, each of the documents delivered to the Administrative Agent pursuant to Section
6.12, and each of the other agreements, instruments or documents that creates or purports to
create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.



     “Commitment” means a Term Commitment or a Revolving Commitment, as the context may
require.



     “Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by
the applicable Lenders pursuant to Section 2.01(a) or 2.01(b), as applicable.



     “Committed Loan” means a Committed Revolving Loan or Committed Term Loan, as the
context may require.



     “Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar



6









 







Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially
in the form of Exhibit A-1 or A-2, as applicable.



     “Committed Revolving Loan” has the meaning specified in Section 2.01(a).



     “Committed Term Loan” has the meaning specified in Section 2.01(b).



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



     “Consolidated EBITDA” means, for any period, Consolidated Net Income for such period
plus, without duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense,
amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and
other fees and charges associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense (including, but not limited to, those with respect to any Placement Fee), (d)
amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e)
non-cash expenses resulting from the grant of stock options to employees of the Borrower or any of
its Subsidiaries pursuant to the required treatment of such stock options under GAAP, (f) any
non-cash expenses or losses (including, without limitation, any non-consolidated, non-cash equity
interest losses in joint ventures) and (g) any extraordinary losses under GAAP (including, whether
or not otherwise includable as a separate item in the statement of such Consolidated Net Income for
such period, losses on the sales of assets outside of the ordinary course of business) and
minus, without duplication (a) to the extent included in the statement of such Consolidated
Net Income for such period, the sum of (i) interest income, (ii) any extraordinary income or gains
under GAAP (including, whether or not otherwise includable as a separate item in the statement of
such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary
course of business) and (iii) income tax credits (to the extent not netted from income tax expense)
and (b) any cash payments made during such period in respect of items described in clause (f) above
subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were reflected
as a charge in the statement of Consolidated Net Income, all as determined on a consolidated basis.
For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal
quarters (each, a “Reference Period”) pursuant to any determination of the Consolidated
Leverage Ratio, (i) if at any time during such Reference Period the Borrower or any Subsidiary
shall have made any Material Disposition, the Consolidated EBITDA for such Reference Period shall
be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property
that is the subject of such Material Disposition for such Reference Period or increased by an
amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference
Period and (ii) notwithstanding anything to the contrary contained in clause (a) of the definition
of Consolidated Net Income, if during such Reference Period the Borrower or any Subsidiary shall
have made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated
after giving pro forma effect thereto as if such Material Acquisition occurred on
the first day of such Reference Period. As used in this definition, “Material Acquisition” means
any acquisition of property or series of related acquisitions of property that (a) constitutes
assets comprising all or substantially all of an operating unit of a business or constitutes all or
substantially all of the common stock of a Person and (b) involves the payment of consideration by
the Borrower and its Subsidiaries in excess of the Threshold Amount; and “Material Disposition”
means any



7









 







Disposition of property or series of related Dispositions of property that yields gross
proceeds to the Borrower or any of its Subsidiaries in excess of $10,000,000.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such
date to (b) Consolidated Interest Expense for such period.



     “Consolidated Interest Expense” means, for any period, total cash interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and its Subsidiaries for
such period with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries
(including all commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financing and net costs under Swap Contracts (excluding any costs
and payments necessary in order to terminate any Swap Contract) in respect of interest rates to the
extent such net costs are allocable to such period in accordance with GAAP).



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Total Debt as of such date to (b) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended.



     “Consolidated Net Income” means, for any period, the consolidated net income (or loss)
of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the Borrower or such
Subsidiary in the form of cash dividends or similar cash distributions and (c) the undistributed
earnings of any Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of
any Contractual Obligation (other than under any Loan Document) or Law applicable to such
Subsidiary.



     “Consolidated Total Debt” means, at any date, the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries at such date, determined on a consolidated basis
in accordance with GAAP, but in any event, excluding obligations for undrawn amounts under
outstanding letters of credit and contingent reimbursement obligations under surety bonds.



     “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.



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



8









 





     “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) 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
Committed Loans, participations in L/C Obligations or participations in Swing Line Loans 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, or other disposition
(including any sale and leaseback transaction, but excluding any license or operating lease) of any
property by any Person, including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims associated therewith.



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



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



     “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)).



     “Eligible Cash Equivalents” means any of the following types of Investments:




     (a) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof having maturities
of not more than 360 days from the date of acquisition thereof; provided that the
full faith and credit of the United States of America is pledged in support thereof;



9









 






     (b) time deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i)(A) is a Lender or (B) is organized under the laws of the United
States of America, any state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the United States of
America, any state thereof or the District of Columbia, and is a member of the Federal
Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as
described in clause (c) of this definition and (iii) has combined capital and
surplus of at least $1,000,000,000, in each case with maturities of not more than 90 days
from the date of acquisition thereof;




     (c) commercial paper issued by any Person organized under the laws of any state of the
United States of America and rated at least “Prime-1” (or the then equivalent grade) by
Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with
maturities of not more than 180 days from the date of acquisition thereof; and




     (d) Investments, classified in accordance with GAAP as current assets of the Borrower
or any of its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial institutions that have
the highest rating obtainable from either Moody’s Investors Service, Inc. or Standard &
Poors Ratings Group, and the portfolios of which are limited solely to Investments of the
character, quality and maturity described in clauses (a), (b) and
(c) of this definition.



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



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



     “Equity 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



10









 







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, as amended and in
effect from time to time.



     “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
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 within the
meaning of Section 4241 of ERISA; (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.



     “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 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 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 Committed Loan that bears interest at a rate based on
the Eurodollar Rate.



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



11









 





     “Excluded Foreign Subsidiary” means any Foreign Subsidiary in respect of which either
(a) the pledge of all of the Equity Interests of such Subsidiary as Collateral or (b) the
guaranteeing by such Subsidiary of the Obligations could reasonably be expected to result in
adverse tax consequences to the Borrower.



     “Excluded Property” means (a) money not in the possession of the Administrative Agent
(other than proceeds of any of the Collateral) and (b) Equity Interests of any Loan Party in a
Subsidiary that is not wholly-owned by Loan Parties.



     “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
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 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).



     “Existing Credit Agreement” means that certain Credit Agreement dated as of July 7,
2004, among the Borrower, JPMorgan Chase Bank, N.A., as administrative agent, and a syndicate of
lenders, as amended.



     “Existing Letters of Credit” means the Letters of Credit issued under the Existing
Credit Agreement (if any) described on Schedule 1.01.



     “Facility” means the Term Facility or the Revolving Facility, as the context may
require.



     “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.



12









 





     “Fee Letters” means, collectively, the Administrative Agent’s Fee Letter and the
Arrangers’ Fee Letter.



     “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.



     “Foreign Subsidiary” means any Subsidiary of the Borrower that is not a Domestic
Subsidiary.



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



     “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.



     “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 or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “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).



     “GroupEx” means GroupEx Financial Corporation, a Delaware corporation.



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable 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



13









 







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 outstanding
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.



     “Guarantee and Collateral Agreement” means the Guarantee and Collateral Agreement made
by Borrower and the Guarantors in favor of the Administrative Agent and the Secured Parties,
substantially in the form of Exhibit F.



     “Guarantors” means, collectively, all material wholly-owned Subsidiaries (other than
Excluded Foreign Subsidiaries) of the Borrower that are parties to the Guarantee and Collateral
Agreement.



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



     “Impacted Lender” means a Defaulting Lender or a Lender (a) as to which an entity that
controls such Lender has become insolvent or become subject to a bankruptcy or other similar
proceeding or (b) which has defaulted in fulfilling, and continues to remain in default in
fulfilling, its obligations under one or more other credit facilities.



     “Increase Effective Date” has the meaning specified in Section 2.14.



     “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 of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;




     (c) net obligations of such Person under all Swap Contracts;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under



14









 







conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;




     (f) capital leases and Synthetic Lease Obligations;




     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest 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 Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
general partnership or limited partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which such Person is a general partner or a
joint venturer, unless such Indebtedness is non-recourse to such Person by contract or operation of
law. The amount of any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in
respect thereof as of such date.



     “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 applicable Maturity Date;
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 (including a
Swing Line Loan), the last Business Day of each March, June, September and December and the
applicable Maturity Date.



     “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
Committed Loan Notice; 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 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



15









 







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 the applicable Maturity Date.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.



     “IP Rights” has the meaning specified in Section 5.18.



     “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 Revolving Lender, such Revolving Lender’s
funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.



     “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 Committed
Borrowing.



     “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.



16









 





     “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; provided that another Lender may
be the issuer of a particular Letter of Credit under the circumstances set forth in Section
2.02(a)(iii)(B).



     “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
Unreimbursed 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 and, as the
context requires, means or includes a Revolving Lender, a Term Lender or the Swing Line Lender.



     “Lender Swap Contracts” means all Swap Contracts made or entered into at any time, or
in effect at any time, whether directly or indirectly, and whether as a result of assignment or
transfer or otherwise, between the Borrower or any Subsidiary and any Lender Swap Provider.



     “Lender Swap Provider” means any Lender or Affiliate of a Lender that is a party to a
Swap Contract with the Borrower or any Subsidiary, in its capacity as party to such Swap Contract;
provided, however, that in the event that such Person ceases to be a Lender or an
Affiliate of a Lender, such Person shall no longer be a “Lender Swap Provider.”



     “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 and shall
include the Existing Letters of Credit.



     “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
Maturity Date then in effect for the Revolving Facility (or, if such day is not a Business Day, the
next preceding Business Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(i).



     “Letter of Credit Sublimit” means an amount equal to $50,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or



17









 







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 Committed Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, each Note, each Issuer Document, each Fee
Letter, the Guarantee and Collateral Agreement, and each other Collateral Document.



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



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, properties, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries taken as a whole; (b)
a material impairment of the ability of any Loan Party to perform its obligations under any Loan
Document to which it is a party (other than an adverse change in the financial condition of one or
more Guarantors so long as there has been no material adverse effect upon the financial condition
of the Borrower or the Borrower and its Subsidiaries taken as a whole); 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.



     “Material Subsidiary” means a Subsidiary (other than an Excluded Foreign Subsidiary)
whose consolidated assets or revenues as of the end of the most recently ended fiscal year or for
such fiscal year, as the case may be, exceeded 10% of the consolidated assets or revenues of the
Borrower as of the end of such fiscal year or for such fiscal year, as the case may be.



     “Maturity Date” means (a) with respect to the Revolving Facility, November 20, 2012
and (b) with respect to the Term Facility, April 29, 2011.



     “Mortgage” means each of the mortgages and deeds of trust made by any Loan Party in
favor of, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties,
substantially in a form which is reasonably acceptable to the Administrative Agent (with such
changes thereto as shall be advisable under the law of the jurisdiction in which such mortgage or
deed of trust is to be recorded).



     “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.



     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit C-1 or C-2, as
applicable.



     “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, whether direct or indirect (including those acquired by assumption),



18









 







absolute or contingent, due or to become due, now existing or hereafter arising;
provided, that all references to the “Obligations” in the Collateral
Documents shall, in addition to the foregoing, also include all present and future indebtedness,
liabilities and obligations of the Borrower or any Subsidiary pursuant to any Lender Swap Contract
or any Cash Management Agreement; in each case 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.



     “Original Agreement” has the meaning specified in the Preamble hereto.



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



     “Outstanding Amount” means (i) with respect to Committed Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any date, the 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 Unreimbursed Amounts.



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



     “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.



19









 





     “Permitted Acquisition” means an acquisition of all or substantially all of the assets
or of the assets constituting a line of business or greater than 50% of the Equity Interests of any
Person where (a) no Default or Event of Default shall have occurred and be continuing on the date
such Permitted Acquisition is consummated, before or after giving effect thereto, (b) the business
acquired (or Person acquired) is principally engaged in the same line of business (or a business
reasonably incidental or complementary thereto) as the Borrower, (c) for any acquisition for which
the fair market value of the consideration to be paid (including the amount of any Indebtedness or
other obligations or liabilities assumed or acquired, but excluding any Equity Interests of the
Borrower issued in connection therewith (other than any Equity Interests that any Loan Party is or,
upon the passage of time or the occurrence of any event, may become obligated to redeem, purchase,
retire, defease or otherwise make any payment in respect thereof)) exceeds the Threshold Amount,
the Borrower shall have demonstrated to the Administrative Agent compliance with the covenants set
forth in Section 7.12 (i) on a pro forma basis (calculated for the relevant
period set forth in Section 7.12 as of the date of such acquisition as if such acquisition
had occurred on the first day of the relevant period), for the most recent full fiscal quarter
immediately preceding such consummation date for which the relevant financial information has been
delivered pursuant to Section 6.01 and (ii) on a projected basis, for each of the four
fiscal quarters following the quarter referred to in the preceding clause (i), (d) for any
acquisition for which the fair market value of the consideration to be paid (including the amount
of any Indebtedness or other obligations or liabilities assumed or acquired, but excluding any
Equity Interests of the Borrower issued in connection therewith (other than any Equity Interests
that any Loan Party is or, upon the passage of time or the occurrence of any event, may become
obligated to redeem, purchase, retire, defease or otherwise make any payment in respect thereof))
exceeds the Threshold Amount, the Borrower shall have delivered to the Administrative Agent for
itself and for distribution to each Lender copies of the most recent audited financial statements
(or if unavailable, the most recent unaudited financial statements) of the acquired Person together
with such other information that the Administrative Agent may reasonably request, (e) the fair
market value of the consideration paid (including the amount of any Indebtedness or other
obligations or liabilities assumed or acquired, but excluding any Equity Interests of the Borrower
issued in connection therewith (other than any Equity Interests that any Loan Party is or, upon the
passage of time or the occurrence of any event, may become obligated to redeem, purchase, retire,
defease or otherwise make any payment in respect thereof)) in connection with such Permitted
Acquisition together with that for other Permitted Acquisitions during the same fiscal year of the
Borrower (excluding the acquisition of GroupEx), shall not be in excess of 50% of Consolidated
EBITDA for the previous four fiscal quarters (the “Annual Permitted Acquisitions Amount”);
provided that, for any acquisition for which the fair market value of the consideration to
be paid (including the amount of any Indebtedness or other obligations or liabilities assumed or
acquired, but excluding any Equity Interests of the Borrower issued in connection therewith (other
than any Equity Interests that any Loan Party is or, upon the passage of time or the occurrence of
any event, may become obligated to redeem, purchase, retire, defease or otherwise make any payment
in respect thereof)) exceeds the Threshold Amount, a Responsible Officer of the Borrower shall have
delivered to the Administrative Agent a Pro Forma Compliance Certificate; provided,
further, that the acquisition of GroupEx shall be deemed to be a Permitted Acquisition but shall
not otherwise be subject to the requirements and limitations of this definition; provided,
further, that for the Borrower’s 2009 fiscal year, an acquisition, or acquisitions, of all or
substantially all of the assets or of the assets constituting a



20









 







line of business or of greater than 50% of the Equity Interests of any Person shall be deemed
to be a Permitted Acquisition even if clauses (c), (d), and/or (e) above
are not satisfied, so long as the fair market value of the consideration to be paid in connection
with all such acquisitions (including the amount of any Indebtedness or other obligations or
liabilities assumed or acquired, but excluding any Equity Interests of the Borrower issued in
connection therewith (other than any Equity Interests that any Loan Party is or, upon the passage
of time or the occurrence of any event, may become obligated to redeem, purchase, retire, defease
or otherwise make any payment in respect thereof)) does not exceed $15,000,000 in the aggregate.
“Pro Forma Compliance Certificate” means a certificate to the Administrative Agent certifying as to
the accuracy of clauses (a) through (e) above and providing a detailed computation
of compliance with clause (c) above.



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



     “Placement Fees” means the upfront fees paid by the Borrower to certain vendors in
consideration for the placement of its coin-operated amusement vending equipment at the retail
locations owned or operated by such vendors.



     “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.



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



     “Redbox” means Redbox Automated Retail, LLC, a Delaware limited liability company.



     “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 Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.



     “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
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



21









 







Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the 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.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of a Loan Party. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such
Loan Party.



     “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).



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



     “Revolving Facility” means, at any time, the aggregate amount of the Revolving
Lenders’ Revolving Commitments at such time or, if the Revolving Lenders’ Revolving Commitments
have been terminated pursuant to Section 8.02, the Total Outstandings under the Revolving
Facility at such time.



     “Revolving Lender” means, at any time, any Lender that has a Revolving Commitment at
such time or, if such Revolving Commitment has been terminated pursuant to Section 8.02,
any Lender that holds Total Outstandings under the Revolving Facility (with such Lender’s risk
participations and funded participations in L/C Obligations and Swing Line Loans being deemed
“held” by such Lender for purposes of this definition).



     “Risk Participation Cash Collateral” means, with respect to any Letter of Credit, the
pledge and deposit with or delivery to the Administrative Agent of, for the benefit of the L/C
Issuer, as collateral, cash or deposit account balances in an amount equal to (a) the Applicable
Percentage of each Impacted Lender times (b) the amount available to be drawn under such Letter of
Credit, 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 Lenders).



22









 





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



     “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C
Issuer, the Lender Swap Providers, the Cash Management Banks and the other Persons the Obligations
owing to which are or are purported to be secured by the Collateral under the terms of the
Collateral Documents.



     “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such Person’s property would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent obligations and other commitments as
they mature in the ordinary course of business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an actual or matured
liability, taking into account rights of contribution, subrogation and reimbursement with respect
to such contingent liabilities.



     “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, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. 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,



23









 







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).



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $25,000,000 and (b)
the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to,
the Aggregate Revolving Commitments.



     “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).



     “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 Commitment” means, as to each Term Lender, its obligation to make a Committed
Term Loan to the Borrower pursuant to Section 2.01(b) in a principal amount not to exceed
the amount set forth opposite such Term Lender’s name on Schedule 2.01(b) under the caption
“Term Commitment”, as such amount may be adjusted from time to time in accordance with this
Agreement.



     “Term Facility” means, at any time, (a) on or prior to the Amendment and Restatement
Effective Date, the aggregate amount of the Term Commitments at such time and (b) thereafter, the
aggregate principal amount of the Committed Term Loans of all Term Lenders outstanding at such
time.



24










 





     “Term Lender” means (a) at any time on or prior to the Amendment and Restatement
Effective Date, any Lender that has a Term Commitment at such time and (b) at any time after the
Amendment and Restatement Effective Date, any Lender that holds Committed Term Loans at such time.



     “Threshold Amount” means $15,000,000.



     “Total Outstandings” means (a) in respect of the Revolving Facility, the aggregate
Outstanding Amount of all Committed Revolving Loans, all Swing Line Loans and all L/C Obligations
and (b) in respect of the Term Facility, the aggregate Outstanding Amount of all Committed Term
Loans.



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



     “UCC” means the Uniform Commercial Code as in effect in the State of New York;
provided that, if perfection or the effect of perfection or non-perfection or the priority
of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code
as in effect from time to time in such other jurisdiction for purposes of the provisions hereof
relating to such perfection, effect of perfection or non-perfection or priority.



     “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.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     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 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



25









 







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, (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 and (viii) any reference to any currency or
amount shall be a reference to the lawful currency of the United States or amount of such
currency, as the case may be.




     (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.



     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 Central time (daylight or standard, as applicable).



26









 





     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 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 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.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Committed Loans. (a) Subject to the terms and conditions set forth herein, each
Revolving Lender severally agrees to make loans (each such loan, a “Committed Revolving
Loan”) 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 Commitment; provided, however, that after giving effect to any
Committed Borrowing, (i) the Total Outstandings in respect of the Revolving Facility shall not
exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Revolving Loans of any Revolving Lender, plus such Revolving Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such
Revolving Lender’s Revolving Commitment. Within the limits of each Revolving Lender’s Revolving
Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.01(a), prepay under Section 2.05, and reborrow under this
Section 2.01(a). Committed Revolving Loans may be Base Rate Loans or Eurodollar Rate
Loans, as further provided herein.



     (b) Subject to the terms and conditions set forth herein, each Term Lender severally agrees to
make a single loan (a “Committed Term Loan”) to the Borrower on the Amendment and
Restatement Effective Date or on the Increase Effective Date, as applicable, in an amount not to
exceed such Term Lender’s Commitment. Each Committed Borrowing shall consist of Committed Term
Loans made simultaneously by the applicable Term Lenders. Amounts borrowed under this Section
2.01(b) and repaid or prepaid may not be reborrowed. Committed Term Loans may be Base Rate
Loans or Eurodollar Rate Loans as further provided herein.



     2.02 Borrowings, Conversions and Continuations of Committed Loans.



     (a) Each Committed Borrowing, each conversion of Committed Loans 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 10:00 a.m. (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 Committed Loans, and (ii) on the requested date of
any Borrowing of Base Rate Committed Loans. Each telephonic notice by the Borrower pursuant to
this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of
a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Each Borrowing of, conversion



27









 







to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $2,500,000 or a whole multiple of $500,000 in excess thereof. Except as
provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base
Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i)
whether the Borrower is requesting a Committed Borrowing, a conversion of Committed Loans 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 Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to
specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be
made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one month.



     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its share of the applicable Committed Loans, and if no timely
notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Committed Borrowing, each applicable Lender shall make the
amount of its Committed Loan available to the Administrative Agent in immediately available funds
at the Administrative Agent’s Office not later than 12:00 noon on the Business Day specified in the
applicable Committed 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 such
Borrowing is in respect of the Revolving Facility and on the date the Committed 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
an Event of Default, no Loans may be requested as, converted to or continued as Eurodollar Rate
Loans without the consent of the Required Lenders.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative



28









 







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.



     (e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from
one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than 10 Interest Periods in effect with respect to Committed Revolving Loans or more than 5
Interest Periods in effect with respect to Committed Term Loans.



     2.03 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
2.03, (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 for the account of
the Borrower or its Subsidiaries, 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 or its Subsidiaries 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 Outstandings in respect of the Revolving Facility shall not
exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the
Committed Revolving Loans of any Revolving Lender, plus such Revolving Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Revolving Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Revolving Lender’s Revolving 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. All Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.




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




     (A) subject to Section 2.03(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 Revolving Lenders then having more than 50% of the
Aggregate Revolving Commitments have approved such expiry date; or



29









 






     (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 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; provided that another
Revolving Lender reasonably acceptable to the Administrative Agent may, in its sole
discretion, agree to issue such Letter of Credit subject to the other terms and
conditions of this Section 2.03;




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $50,000;




     (D) such Letter of Credit is to be denominated in a currency other than
Dollars;




     (E) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




     (F) a default of any Revolving Lender’s obligation to fund under Section
2.03(c) exists or any Revolving Lender is an Impacted Lender, unless the
L/C Issuer has entered into arrangements satisfactory to it (including, without
limitation, arrangements for the provision of Risk Participation Cash Collateral)
with the Borrower or such Revolving Lender to eliminate the L/C Issuer’s risk with
respect to such Revolving Lender; provided, that, if the Borrower provides Risk
Participation Cash Collateral with respect to a Letter of Credit requested to be
issued hereunder, the L/C Issuer shall not be entitled to rely on this clause as
justification for not issuing such Letter of Credit. To the extent that the
Borrower provides Risk Participation Cash Collateral, the Borrower hereby grants to
the Administrative Agent, for the benefit of the L/C Issuer, a security interest in
all cash, deposit accounts and all balances therein and all proceeds of the
foregoing



30









 







solely as security for the purposes described under Section
2.03(c)(ii) hereof. Such Risk Participation Cash Collateral shall be maintained
in blocked, non-interest bearing deposit accounts with the Administrative Agent;
provided that (1) in the event that any Revolving Lender, on account of whom
such Risk Participation Cash Collateral was delivered, shall no longer be an
Impacted Lender, the Administrative Agent shall return to the pledgor such portion
of Risk Participation Cash Collateral attributable to such Revolving Lender, (2) in
the event that any Revolving Lender, on account of whom such Risk Participation Cash
Collateral was delivered, shall have its Revolving Commitment reduced, the
Administrative Agent shall return to the pledgor such portion of the Risk
Participation Cash Collateral attributable to such Revolving Lender in proportion to
the amount by which such Revolving Lender’s Revolving Commitment is so reduced, and
(3) in the event that the applicable Letter of Credit, on account of which such Risk
Participation Cash Collateral was delivered, expires or is drawn upon, and such
drawing has been reimbursed by the Borrower, the Administrative Agent shall return
to the pledgor such portion of the Risk Participation Cash Collateral attributable
to such expired Letter of Credit or such reimbursed drawing, as applicable.




     (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.



     (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 10:00 a.m. 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



31









 








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 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 the applicable Subsidiary) 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 Applicable Percentage 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 shall issue a Letter of Credit that has automatic extension provisions (each,
an “Auto-Extension Letter of Credit”); provided that (A) 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 and (B) the ultimate expiry date shall not extend
beyond the Letter of Credit Expiration Date. 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




32









 







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 2.03(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 (1) from the Administrative Agent that the Revolving Lenders
then having more than 50% of the Aggregate Revolving Commitments (or if the commitment of
each Revolving Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, the Revolving Lenders
holding in the aggregate more than 50% of the Total Outstandings in respect of the Revolving
Facility) have elected not to permit such extension or (2) 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 1:00 p.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time,
the Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of
such Revolving Lender’s Applicable Percentage thereof. In such event, the Borrower shall be
deemed to have requested a Committed Borrowing under the Revolving Facility of Base Rate
Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the
amount of the unutilized portion of the Aggregate Revolving Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Committed Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(c)(i) may be given by telephone if 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 (including the Lender acting as L/C Issuer) shall upon any
notice pursuant to Section 2.03(c)(i) make funds available to the Administrative
Agent for the account of the L/C Issuer at the Administrative Agent’s Office in an




33









 







amount
equal to its Applicable Percentage of the Unreimbursed Amount not later than 12:00 noon on
the Business Day specified in such notice by the Administrative Agent, whereupon, subject to
the provisions of Section 2.03(c)(iii), each Revolving Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to the Borrower in such
amount; provided, that if any Impacted Lender shall fail to make such funds
available, any Risk Participation Cash Collateral delivered on account of such Impacted
Lender for the respective Letter of Credit shall be applied by the Administrative Agent to
the reimbursement of the L/C Issuer as required hereunder. The Administrative Agent shall
remit the funds so received to the L/C Issuer. If at any time after the L/C Issuer has been
reimbursed hereunder for any portion of any Letter of Credit with the proceeds of Risk
Participation Collateral and the Administrative Agent subsequently receives from the
Impacted Lender such Impacted Lender’s L/C Advance (or portion thereof) in respect of such
payment in accordance with this Section 2.03(c)(ii), the Administrative Agent shall
distribute to the Borrower the proceeds of such L/C Advance (or portion thereof) in the same
funds as those received by the Administrative Agent.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed 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 Unreimbursed 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 2.03(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 2.03.




     (iv) Until each Revolving Lender funds its Committed Revolving Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn
under any Letter of Credit, interest in respect of such Revolving Lender’s Applicable
Percentage of such amount shall be solely for the account of the L/C Issuer.




     (v) Each Revolving Lender’s obligation to make Committed Revolving Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(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 Committed Revolving Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrower of a Committed 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.




34









 






     (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 2.03(c) by the time specified
in Section 2.03(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
greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with
banking industry rules on interbank compensation, 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 Committed Revolving Loan included in the
relevant Committed 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 2.03(c), if the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the related
Unreimbursed 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 Applicable Percentage
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 2.03(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 Applicable Percentage 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 Federal Funds 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:





35











 






     (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 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; or




     (v) 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; provided that such noncompliance
is not the result of gross negligence or willful misconduct on the part of the L/C Issuer.



     (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
Revolving Lenders then having more than 50% of the Aggregate Revolving Commitments (or if the
obligation of the commitment of each Revolving Lender to make Loans and the obligation of the L/C
Issuer to make L/C Credit Extensions have been




36









 







terminated pursuant to Section 8.02, the Revolving Lenders or the Revolving Lenders
holding in the aggregate more than 50% of the Total Outstandings in respect of the Revolving
Facility), 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 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 2.03(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 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. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05 and
8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.05 and Section 8.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Secured Parties, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Revolving Lenders). Derivatives of such term have corresponding meanings. The Borrower
hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and the Secured
Parties, 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, and to the extent
permitted by law, 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 (including any such agreement applicable to an Existing
Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.




37









 





     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Lender in accordance with its Applicable Percentage a Letter of Credit
fee (the “Letter of Credit Fee”) equal to the Applicable Rate times 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 tenth Business Day after the end 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
Revolving Lenders then having more than 50% of the Aggregate Revolving Commitments (or if the
commitment of each Revolving Lender to make Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02, the Revolving Lenders
holding in the aggregate more than 50% of the Total Outstandings in respect of the Revolving
Facility), while any Event of Default 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. 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 specified in the Administrative Agent’s Fee Letter,
computed on the daily amount available to be drawn under such Letter of Credit 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 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.



     (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.



     (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and
all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that
the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.




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     2.04 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Revolving Lenders set forth in
this Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to the
Borrower from time to time on any Business Day during the Availability Period in respect of the
Revolving Facility in an aggregate amount not to exceed at any time outstanding the amount of the
Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the
Applicable Percentage of the Outstanding Amount of Committed Revolving Loans and L/C Obligations of
the Lender acting as Swing Line Lender, may exceed the amount of such Revolving Lender’s Revolving
Commitment; provided, however, that should any Revolving Lender become a Defaulting
Lender or an Impacted Lender, all Swing Line Loans shall be made at the sole and absolute
discretion of the Swing Line Lender, and after giving effect to any Swing Line Loan, (i) the Total
Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate
Outstanding Amount of the Committed Revolving Loans of any Revolving Lender, plus such
Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Revolving Lender’s Revolving Commitment, and provided,
further, that the Borrower shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.04, prepay under
Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be
a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the product of such
Revolving Lender’s Applicable Percentage times the amount of such Swing Line Loan.



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 12:00 noon on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. If the Swing Line Lender is required or
shall elect, as may be the case, to fund a requested Swing Line Loan, not later than 2:00 p.m. on
the borrowing date specified in such Swing Line Notice, the Swing Line Lender shall make available
to the Borrower at its office by crediting the account of the Borrower on the books of the Swing
Line Lender in an amount in immediately available funds equal to the amount of such Swing Line
Loan. Notwithstanding the foregoing, if the Swing Line Lender is not required, and accordingly
elects not to fund a requested Swing Line Loan for any reason, the Swing Line Lender shall
promptly,




39









 







and in any event not later than 2:00 p.m. on the borrowing date specified in such Swing Line
Notice, notify the Borrower and the Administrative Agent of such election.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Revolving Lender make a Base Rate Committed Loan in an
amount equal to such Revolving Lender’s Applicable Percentage of the amount of Swing Line
Loans then outstanding. Such request shall be made in writing (which written request shall
be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples specified
therein for the principal amount of Base Rate Loans, but subject to the unutilized portion
of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02.
The Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed
Loan Notice promptly after delivering such notice to the Administrative Agent. Each
Revolving Lender shall make an amount equal to its Applicable Percentage of the amount
specified in such Committed Loan Notice available to the Administrative Agent in immediately
available funds for the account of the Swing Line Lender at the Administrative Agent’s
Office not later than 12:00 noon on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the Swing Line
Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Committed
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Revolving Lenders fund its risk participation in
the relevant Swing Line Loan and each Revolving Lender’s payment to the Administrative Agent
for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be
deemed payment in respect of such participation.




     (iii) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the Swing Line Lender any amount required to be paid by such Revolving Lender
pursuant to the foregoing provisions of this Section 2.04(c) by the time specified
in Section 2.04(c)(i), the Swing Line Lender 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 Swing Line Lender at a rate per annum equal to
the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in
accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Swing Line Lender 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 Committed Revolving
Loan included in the relevant Committed Borrowing or funded participation in the relevant
Swing Line Loan, as the case may be.




40









 






A certificate of the Swing Line Lender submitted to any Revolving Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.




     (iv) Each Revolving Lender’s obligation to make Committed Revolving Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to 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 Swing Line Lender, 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 Committed Revolving Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 4.02. No such funding of risk participations shall
relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Revolving Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account
of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Lender its
Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Revolving Lender
shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative
Agent will make such demand upon the request of the Swing Line Lender. 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) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Revolving
Lender funds its Base Rate Committed Loan or risk participation pursuant to this Section
2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swing Line Loan,
interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line
Lender.



     (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.




41









 





     2.05 Prepayments.



     (a) (i) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Committed Loans in whole or in part without premium or penalty;
provided that (A) such notice must be received by the Administrative Agent not later than
10:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2)
on the date of prepayment of Base Rate Committed Loans; (B) any prepayment of Eurodollar Rate Loans
shall be in a principal amount of $2,500,000 or a whole multiple of $500,000 in excess thereof; and
(C) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 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 Committed Loans to be prepaid, the Facility under which such Committed Loans are
outstanding and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.
The Administrative Agent will promptly notify each applicable Lender of its receipt of each such
notice, and of the amount of such Lender’s 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 Committed Revolving Loans or the Committed Term Loans of the Lenders, as directed by
the Borrower, in accordance with their respective pro rata shares.



     (ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (A) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 12:00 noon on the date of the prepayment,
and (B) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount 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.



     (iii) If for any reason the Total Outstandings under a Facility at any time exceed the
Aggregate Commitments then in effect with respect to such Facility, the Borrower shall immediately
prepay Loans under such Facility and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; provided, however, that the Borrower shall not be
required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(a)(iii)
unless after the prepayment in full of the Committed Revolving Loans the Total Outstandings exceed
the Aggregate Revolving Commitments then in effect.



     (b) In the event the Borrower incurs or issues Indebtedness described in and permitted by
Section 7.03(h) after the Amendment and Restatement Effective Date, the Borrower shall, not
later than two Business Days after each receipt of the cash proceeds thereof, prepay the principal
balance of Committed Term Loans in an amount equal to 75% of all cash proceeds (less any
underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses
incurred by the Borrower in connection therewith) received by the Borrower from such incurrence or
issuance.




42









 





     2.06 Termination or Reduction of Commitments. (a) The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Revolving Commitments, or from time to time
permanently reduce the Aggregate Revolving Commitments; provided that (i) any such notice
shall be received by the Administrative Agent not later than 10:00 a.m. five Business Days prior to
the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate
amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower
shall not terminate or reduce the Aggregate Revolving Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate
Revolving Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Revolving
Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Revolving 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 Commitments. Any reduction of the Aggregate
Revolving Commitments shall be applied to the Revolving Commitment of each Revolving Lender
according to its Applicable Percentage. All fees accrued until the effective date of any
termination of the Aggregate Revolving Commitments shall be paid on the effective date of such
termination.



     (b) Notwithstanding that Committed Term Loans may not be prepaid or repaid and reborrowed
under Section 2.01(b), the Aggregate Term Commitments (and the Term Commitment of each Term
Lender) shall continue in existence after the Amendment and Restatement Effective Date;
provided that the Aggregate Term Commitments (and the Term Commitment of each Term Lender
on a pro rata basis) shall automatically be reduced by the amount of each payment or prepayment of
the Committed Term Loans.



     2.07 Repayment of Loans.



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



     (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the first
Business Days after written demand for such repayment is made by the Swing Line Lender and (ii) the
applicable Maturity 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; (ii)
each Base Rate Committed 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; and (iii) each Swing Line 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 of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise,




43









 







such amount 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) If any amount (other than principal of any Loan) payable by the Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, then upon the request of the Required
Lenders, such amount 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.




     (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder
at a fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.




     (iv) 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.



     2.09 Fees. In addition to certain fees described in subsections (i) and (j) of Section
2.03:



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Lender in accordance with its Applicable Percentage, a commitment fee
equal to the Applicable Rate times the actual daily amount by which the Aggregate Revolving
Commitments exceed the sum of (i) the Outstanding Amount of Committed 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, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in effect.



     (b) Upfront Term Facility Fee. The Borrower shall pay to the Administrative Agent for
the account of each Term Lender on the Amendment and Restatement Effective Date a fee equal to
0.50% of the amount of such Term Lender’s Term Commitment.



     (c) Other Fees. (i) The Borrower shall pay to the Arrangers and the Administrative
Agent for their own respective accounts fees in the amounts and at the times specified in the Fee
Letters and shall pay to one or more of the Arrangers such fees as shall have been separately




44









 




agreed upon in writing in the amounts and at the time so agreed. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.


     (ii) The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon
in writing in the amounts and at the times so agreed. Such fees shall be fully earned when paid
and shall not be refundable for any reason whatsoever.


     2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.

     (a) All
computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America’s
“prime rate” 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). 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.


     (b) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the
Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate
and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher
pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to
the Administrative Agent for the account of the applicable Lenders, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States, automatically and
without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal
to the excess of the amount of interest and fees that should have been paid for such period over
the amount of interest and fees actually paid for such period. This paragraph shall not limit the
rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section
2.03(c)(iii), 2.03(i) or 2.08(b) or under Article VIII. The
Borrower’s obligations under this paragraph shall survive the termination of the Aggregate
Commitments and the repayment of all other Obligations hereunder.


     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


45








 







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.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. 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 Dollars and in immediately available funds not later than 1:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its 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 1:00 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
Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing of Base
Rate Loans, prior to 11:00 a.m. on the date of such Committed Borrowing) that such Lender will not
make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans,
that such Lender has made such share available in accordance with and at the time required by
Section 2.02) 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
Committed 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 greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, plus




46









 







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 Committed Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Committed Loan
included in such Committed 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 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 appropriate 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
appropriate 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 greater of the Federal Funds Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.



     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 to make
Committed Loans, of the Revolving Lenders to fund participations in Letters of Credit and Swing
Line Loans and of the Lenders to make payments pursuant to Section 10.04(c) are several and
not joint. The failure of any Lender to make any Committed Loan, of any Revolving Lender to fund
any such participation or of any Lender 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
Committed Loan, of any Revolving Lender to purchase its participation or of any Lender to make its
payment under Section 10.04(c).




47









 





     (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.



     2.13 Sharing of Payments by Lenders. If any 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
Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by
it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such
Committed Loans or participations and accrued interest thereon greater than its pro
rata share thereof as provided herein, then the 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 Committed Loans and subparticipations in L/C Obligations and Swing Line Loans
of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Committed 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 Section 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 Lender as consideration for the assignment of or sale of a
participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).



     The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of 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.



     2.14 Increase in Term Commitments.



     (a) Request for Increase. Provided that no Default or Event of Default then exists
and is continuing, upon notice to the Administrative Agent given not later than five days before
the Increase Effective Date, the Borrower may make a single request for an increase in the
Aggregate Term Commitments in a minimum amount of $10,000,000 and in a maximum amount that does not
cause the Aggregate Term Commitments to exceed $100,000,000, after giving effect to such increase.




48









 





     (b) Increased Term Commitment; Additional Term Lender. To achieve the amount of a
requested increase, (i) any then existing Term Lender may (but shall have no obligation to) agree
to increase its Term Commitment and/or (ii) subject to the approval of the Administrative Agent
(which approval shall not be unreasonably withheld), the Borrower may invite an Eligible Assignee
to become a Term Lender pursuant to a joinder agreement in form and substance satisfactory to the
Administrative Agent.



     (c) Effective Date; Schedule 2.01(b). If the Aggregate Term Commitments are increased
in accordance with this Section, (i) the Administrative Agent and the Borrower shall determine the
effective date (the “Increase Effective Date”) of such increase, which shall be not later
than May 28, 2009, and (ii) on the Increase Effective Date, the Administrative Agent is hereby
authorized and directed to revise Schedule 2.01(b) to reflect such increase and to deliver
to each Lender a copy of such revised Schedule 2.01(b).



     (d) Conditions to Effectiveness of Increase. As a condition precedent to an increase
of the Aggregate Term Commitments, the Borrower shall deliver to the Administrative Agent a
certificate of the Borrower dated as of the Increase Effective Date signed by a Responsible Officer
of the Borrower certifying that, before and after giving effect to such increase, (i) the
representations and warranties contained in Article V and the other Loan Documents are true
and correct on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and (ii) no Default or Event of Default exists and is
continuing.



     (e) Term Loan Type. Any Committed Term Loan made on the Increase Effective Date shall
be a Base Rate Loan unless and until appropriate adjustments can be made so that such Committed
Term Loan consists of Eurodollar Rate Loans in proportionate amounts, and having Interest Periods
ending on the same dates, as any outstanding Eurodollar Rate Loans owing to the other Term Lenders.



     (f) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 10.01 to the contrary.



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 or Other Taxes, provided that if
the Borrower shall be required by applicable law to deduct any Indemnified Taxes (including any
Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, 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




49









 







Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.



     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.



     (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 or Other Taxes (including Indemnified Taxes or Other 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 or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Borrower
by a Lender or 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 or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.



     (e) 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:




50









 






     (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 that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, 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 or Other 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 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 in good faith 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, 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 Committed 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




51









 







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. If the Required Lenders determine in good faith that for any
reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation
thereof that (a) 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 Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of
the Required 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 or,
failing that, will be deemed to have converted such request into a request for a Committed
Borrowing of Base Rate Loans 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;




     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer); or




     (iii) 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



52









 






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 in good faith
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 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 nine 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 nine-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




53









 







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



     (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 loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained.


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.




54









 





     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 Revolving
Lender to make its initial Credit Extension under the Original Agreement became effective on the
date on which each of the conditions set forth in Section 4.01 of the Original Agreement were
satisfied (or waived in accordance with Section 10.01 of the Original Agreement). The
Administrative Agent notified the Borrower and the Revolving Lenders of the Closing Date (which
occurred on November 20, 2007), and such notice was conclusive and binding.



     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for
Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed
Loans to the other Type, or a continuation of Eurodollar Rate Loans) 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 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 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 or the Swing Line Lender shall
have received a Request for Credit Extension in accordance with the requirements hereof.



     Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of Eurodollar Rate Loans)
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.



     4.03 Effectiveness of Amendment and Restatement. This amendment and restatement of the Original
Agreement shall be effective when the Administrative Agent receives (a) counterparts of this
Agreement executed by the Borrower, the Required Lenders (which shall be determined immediately
prior to such effectiveness and shall exclude any Defaulting Lender), the Term Lenders, and the
Administrative Agent, (b) the items set forth in Sections 4.01(a)(iv), (v),
(vi) and (vii) of the Original Agreement (but as of the Amendment and Restatement




55









 







Effective Date), (c) a fee for the account of each Term Lender in the amount of .50% of such
Term Lender’s Term Commitment (which fee shall also be payable to any Term Lender that makes a
Committed Term Loan on the Increase Effective Date), and (d) such other documents, instruments,
certificates, evidences and legal opinions as the Administrative Agent may reasonably request in
connection herewith.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     On the Closing Date, on the date of each Borrowing or L/C Credit Extension made under the
Original Agreement, and on each other date on which such representations and warranties were
required to be made under the Original Agreement, Borrower made the representations and warranties
set forth in Article V of the Original Agreement. On the Amendment and Restatement Effective Date,
on the date of each Borrowing or L/C Credit Extension made under this Agreement, and on each other
date on which such representations and warranties are required to be made under this Agreement, 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.



     5.03 Governmental Authorization; Other Consents. No 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 (a) the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan Document, (b) the grant by
any Loan Party of the Liens granted by it pursuant to the Collateral Documents, or (c) the exercise
by the Administrative Agent or any Lender of its rights




56









 







under the
Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral
Documents.



     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.



     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 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
September 30, 2008, and the related consolidated 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 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.



     (c) Since the dates 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 after due and diligent investigation, threatened or contemplated, 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 this
Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) except
as specifically disclosed in Schedule 5.06, either individually or in the aggregate 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, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Event of Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.




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     5.08 Ownership of Property; Liens. Each of the Borrower and its Subsidiaries has good record and
marketable title in fee simple 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. As of the Closing Date, neither the Borrower nor any of its Subsidiaries
owns any real property having a fair market value of at least $1,000,000.



     5.09 Environmental Compliance. The Borrower and its Subsidiaries conduct in the ordinary course of
business a review of the effect of existing Environmental Laws and claims alleging potential
liability or responsibility for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof the Borrower has reasonably concluded that,
except as specifically disclosed in Schedule 5.09, such Environmental Laws and claims could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Borrower, in such amounts (after
giving effect to any self-insurance compatible with the following standards), with such deductibles
and covering such risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the Borrower or the applicable Subsidiary operates.



     5.11 Taxes. The Borrower and its Subsidiaries have filed all 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. Neither any Loan Party nor any
Subsidiary thereof is party to any tax sharing agreement.



     5.12 ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws, except for such noncompliance as could not
reasonably be expected to have a Material Adverse Effect. 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




58









 







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) Except as could not reasonably be expected to have a Material Adverse Effect: no
ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded
Pension Liability; (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.



     5.13 Subsidiaries; Equity Interests. As of the Closing Date, the Borrower has no Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned directly or indirectly by the Borrower in the amounts specified on Part
(a) of Schedule 5.13 free and clear of all Liens except those created under the Collateral
Documents. As of the Closing Date, the Borrower has no equity investments in any other corporation
or entity other than those specifically disclosed in Part(b) of Schedule 5.13. Set forth
on Part (c) of Schedule 5.13 is a complete and accurate list of all Loan Parties, showing
as of the Closing Date (as to each Loan Party) the jurisdiction of its incorporation, the address
of its principal place of business and its U.S. taxpayer identification number or, in the case of
any non-U.S. Loan Party that does not have a U.S. taxpayer identification number, its unique
identification number issued to it by the jurisdiction of its incorporation. As of the Closing
Date, the Borrower has no Material Subsidiaries that are not Loan Parties.



     5.14 Margin Regulations; Investment Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under each
Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of
the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section
7.01 or Section 7.05 or subject to any restriction contained in any agreement or
instrument between the Borrower and any Lender or any Affiliate of any Lender relating to
Indebtedness and within the scope of Section 8.01(e) will be margin stock.



     (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.



     5.15 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




59









 







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.



     5.16 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, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.



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



     5.18 Intellectual Property; Licenses, Etc. 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 reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person, except to the extent that any such conflict
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. Except as specifically disclosed in
Schedule 5.18, 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.



     5.19 Solvency. Each Loan Party is, and after giving effect to the incurrence of all Indebtedness
and obligations being incurred in connection herewith and will be and will continue to be,
individually and together with its Subsidiaries on a consolidated basis, Solvent.



     5.20 Automatic Coin Counting Machines. Substantially all of the automated coin counting machines
owned by the Borrower and its Subsidiaries are located either at the Borrower’s or its
Subsidiaries’ places of business or in retail or other locations installed pursuant to a valid
Coinstar Installation Agreement. Such automated coin counting machines are not subject to any Lien
in favor of the owner of the retail location where such machine is operated, nor are they subject
to any Lien in favor of the counterparty to the applicable Coinstar Installation Agreement;
provided, however the coins in such machines may be subject to a Lien




60









 







in favor of
such counterparty to the extent a payment voucher has been issued in respect of such coins in
accordance with the terms of such Coinstar Installation Agreement.



     5.21 Collateral Documents. The provisions of the Collateral Documents are effective to create in
favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and
enforceable first priority Lien (subject to Liens permitted by Section 7.01) on all right,
title and interest of the respective Loan Parties in the Collateral described therein. Except for
filings completed prior to or concurrently with the Closing Date and as contemplated hereby and by
the Collateral Documents, no filing or other action will be necessary to perfect or protect such
Liens.



     5.22 GroupEx Acquisition. Prior to the Closing Date, the Borrower has delivered to the
Administrative Agent and the Lenders a true and correct copy of the acquisition agreement, all
schedules and exhibits thereto and all amendments and modifications thereof as of the Closing Date,
relating to the acquisition of GroupEx.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any 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) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal year, and the related consolidated 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, audited and accompanied by a report and opinion of an independent certified public accountant
of nationally recognized standing reasonably acceptable to the Required Lenders, 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



     (b) 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, a consolidated 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, certified by the chief
executive officer, chief financial officer, treasurer or controller of the Borrower as fairly
presenting the financial condition, results of operations, shareholders’ equity and cash flows of




61









 







the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes.



As to any information contained in materials furnished pursuant to Section 6.02(e), 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 satisfactory to the Administrative Agent and the Required Lenders:



     (a) [Intentionally Omitted];



     (b) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by the
chief executive officer, chief financial officer, treasurer or controller of the Borrower;



     (c) as soon as available, and in any event no later than 45 days after the end of each fiscal
year of the Borrower, a detailed consolidated budget for the following fiscal year (including a
projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the
following fiscal year, the related consolidated statements of projected cash flow, projected
changes in financial position and projected income and a description of the underlying assumptions
applicable thereto), and, as soon as available, significant revisions, if any of such budget and
projections with respect to such fiscal year, which budget and projections shall in each case be
accompanied by a certificate of a Responsible Officer stating that such budget and projections are
based on reasonable estimates, information and assumptions and that such Responsible Officer has no
reason to believe that such budget and projections are incorrect or misleading in any material
respect;



     (d) promptly after any request by the Administrative Agent or any Lender, copies of any
management letters submitted to the board of directors (or the audit committee of the board of
directors) of the Borrower by independent accountants in connection with the accounts or books of
the Borrower or any Subsidiary, or any audit of any of them;



     (e) 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 Borrower, and copies of
all annual, regular, periodic and special reports and registration statements which the Borrower
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;



     (f) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;



     (g) promptly after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each
notice or other correspondence received from the SEC (or comparable agency in any




62









 







applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or
other inquiry by such agency regarding financial or other operational results of any Loan Party or
any Subsidiary thereof; and



     (h) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, 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(e) (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 posts such documents, or provides a link thereto on
the Borrower’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 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 shall deliver paper copies of such documents to the Administrative Agent or
any Lender that requests the Borrower 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
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 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 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 and/or the Arrangers 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 Arrangers, 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




63









 




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
and the Arrangers 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 Event of 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, including pursuant to any applicable Environmental Laws;



     (c) of the occurrence of any ERISA Event that could reasonably be expected to result in a
Material Adverse Effect; and



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary, including any determination by the Borrower referred to in Section
2.10(b).



     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.



     6.04 Payment of Obligations. 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, pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its
legal existence and good standing under the Laws of the jurisdiction of its organization except in
a transaction permitted by Section 7.04 or 7.05; (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.




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     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 except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect; (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; and (c) use the standard of care typical in the industry in the operation
and maintenance of its facilities.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance companies
not Affiliates of the Borrower, insurance with respect to its properties and business against loss
or damage of the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts (after giving effect to any self-insurance compatible
with the following standards) as are customarily carried under similar circumstances by such other
Persons and providing for not less than 30 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.



     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,
all at the expense of the Borrower and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the Borrower;
provided, however, that when an Event of Default exists the Administrative Agent or
any Lender (or any of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Borrower at any time during normal business hours and without
advance notice.



     6.11 Use of Proceeds. (a) Use the proceeds of the Credit Extensions under the Revolving Facility
for working capital, capital expenditures, to finance the acquisition of GroupEx, other Permitted
Acquisitions and other Investments permitted by Section 7.02, to refinance existing
Indebtedness, and for other general corporate purposes not in contravention of any Law or of any
Loan Document; and (b) use the proceeds of the Committed Term Loans first, to repay seller
Indebtedness incurred in connection with the purchase of equity interests in




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Redbox pursuant to
the Purchase and Sale Agreement (as defined in the First Amendment, Consent and Waiver to the
Original Agreement dated as of February 12, 2009), to the extent such seller Indebtedness is not
repaid by the issuance of common stock of the Borrower, and second, for general corporate purposes.



     6.12 Covenant to Guarantee Obligations and Give Security. 




     (a) Upon the formation or acquisition by
any Loan Party of any new direct or indirect wholly-owned Subsidiary (other than an Excluded
Foreign Subsidiary) that is a Material Subsidiary, or upon any existing Subsidiary (other than an
Excluded Foreign Subsidiary) becoming a Material Subsidiary, then the Borrower shall, at the
Borrower’s expense:




     (i) within 30 days after such formation, acquisition or occurrence, furnish to the
Administrative Agent a description of the real and personal properties of such Subsidiary,
in detail satisfactory to the Administrative Agent;




     (ii) within 30 days after such formation, acquisition or occurrence, cause such
Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already
done so) to duly execute and deliver to the Administrative Agent an amendment or joinder to
the Guarantee and Collateral Agreement, such Mortgages, other security and pledge
agreements, and such other documents as Administrative Agent deems necessary for such
Subsidiary or such parent, as the case may be, to Guarantee the other Loan Parties’
obligations under the Loan Documents, and as may be required, to secure payment of all the
Obligations of such Subsidiary or such parent, as the case may be, under the Loan Documents
and to constitute Liens on all real property owned by such Subsidiary having a fair market
value of at least $1,000,000 and all personal property (other than Excluded Property) owned
by such Subsidiary;




     (iii) within 30 days after such formation, acquisition or occurrence, cause such
Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already
done so) to take whatever action (including the recording of mortgages, the filing of UCC
financing statements, the giving of notices and the endorsement of notices on title
documents) may be necessary or advisable in the opinion of the Administrative Agent to vest
in the Administrative Agent (or in any representative of the Administrative Agent designated
by it) valid and subsisting Liens on the properties purported to be subject to the Mortgages
and security and pledge agreements delivered pursuant to this Section 6.12,
enforceable against all third parties in accordance with their terms; and




     (iv) within 30 days after such formation, acquisition or occurrence, deliver to the
Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a
signed copy of a favorable opinion, addressed to the Administrative Agent and the other
Secured Parties, of counsel for the Loan Parties acceptable to the Administrative Agent as
to the matters contained in clauses (ii) and (iii) above, and as to such
other matters as the Administrative Agent may reasonably request.



     (b) Upon the formation or acquisition of any new direct or indirect wholly-owned Excluded
Foreign Subsidiary by any Loan Party (other than a Loan Party that is an Excluded Foreign
Subsidiary), then the Borrower shall, at the Borrower’s expense, within 30 days after




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such formation or acquisition, cause each direct and indirect parent of such Excluded Foreign
Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative Agent
an amendment to the Guarantee and Collateral Agreement to grant to the Administrative Agent, for
the benefit of the Secured Parties, a security interest in the Equity Interests of such new
Excluded Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall
more than 65% of the total outstanding voting Equity Interests of any such new Excluded Foreign
Subsidiary be so pledged).



     (c) Except to the extent covered by Section 6.12(a) or (b), upon the acquisition of
any real property having a fair market value of at least $1,000,000 or any personal property (other
than Excluded Property) by any Loan Party, if such property, in the judgment of the Administrative
Agent, shall not already be subject to a Lien in favor of the Administrative Agent for the benefit
of the Secured Parties, then the Borrower shall, at the Borrower’s expense:




     (i) concurrently with the delivery of the first Compliance Certificate delivered after
such acquisition, furnish to the Administrative Agent a description of the property so
acquired in detail satisfactory to the Administrative Agent; and




     (ii) within 30 days after request by the Administrative Agent, cause the applicable
Loan Party to duly execute and deliver to the Administrative Agent an amendment to the
Guarantee and Collateral Agreement, Mortgages and such other documents as Administrative
Agent deems necessary to secure payment of all the Obligations of such Loan Party under the
Loan Documents and to constitute Liens on such property.



     6.13 Further Assurances. Promptly upon request by the Administrative Agent, or any Lender through
the Administrative Agent, (a) correct any material defect or error that may be discovered in any
Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and
all such further acts, deeds, certificates, assurances, opinions and other instruments as the
Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from
time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to
the fullest extent permitted by applicable law, subject any Loan Party’s or any of its
Subsidiaries’ properties, assets, rights or interests to the Liens intended to be covered by any of
the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of
any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv)
assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the
Secured Parties the rights granted or now or hereafter intended to be granted to the Secured
Parties under any Loan Document or under any other instrument executed in connection with any Loan
Document to which any Loan Party or any of its wholly-owned Subsidiaries is or is to be a party,
and cause each of its wholly-owned Subsidiaries to do so.




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ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any 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;



     (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 expanded, (ii)
the principal amount secured or benefited thereby is not increased except as contemplated by
Section 7.03(b), and (iii) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(b);



     (c) Liens for taxes 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) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 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, leases (subject to the
limitations of Section 7.01(i) and Section 7.03(e), 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) Liens securing Indebtedness permitted under Section 7.03(b) and Section
7.03(e); provided that (i) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness and the proceeds thereof and (ii) the Indebtedness
secured thereby




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does not exceed the cost (including associated costs of acquisition) or fair market value,
whichever is lower, of the property being acquired on the date of acquisition;



     (j) Liens on property or assets acquired pursuant to a Permitted Acquisition or a permitted
Investment, or on property or assets of a Subsidiary of the Borrower in existence at the time such
Subsidiary is acquired pursuant to a Permitted Acquisition, and extensions and renewals thereof;
provided that (i) any Indebtedness that is secured by such Liens is not prohibited under
Section 7.03(g) and (ii) such Liens are not incurred in connection with, or in
contemplation or anticipation of, such Permitted Acquisition or permitted Investment and do not
attach to any other asset of the Borrower or any of its other Subsidiaries;



     (k) any interest or title of a lessor under any lease entered into by the Borrower or any
other Subsidiary in the ordinary course of its business and covering only the assets so leased;



     (l) Liens arising in the ordinary course of business that are not incurred in connection with
the borrowing of money or the obtaining of advances or credit; provided, such Liens consist
of (i) liens of sellers of good arising under Article 2 of the UCC or (ii) Liens of banks
constituting customary rights of set off;



     (m) Liens on coins contained in the automated coin counting machines or other machines owned
by the Borrower and its Subsidiaries granted in favor of a counterparty to a Coinstar Installation
Agreement to the extent that a payment voucher has been issued in respect of such coins in
accordance with such Coinstar Installation Agreement;



     (n) Liens in favor of the Borrower or any Guarantor;



     (o) Liens not otherwise permitted by this Section so long as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair market
value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds (as
to the Borrower and all Subsidiaries) $5,000,000 at any one time;



     (p) Liens granted by any Excluded Foreign Subsidiary securing Indebtedness permitted under
Section 7.03(i); and



     (q) Liens in favor of T-Mobile or VoiceStream Wireless securing the purchase price of
inventory; provided that the aggregate outstanding amount of the obligations secured by such Liens
does not exceed $2,000,000 at any time and the Borrower uses commercial reasonable efforts to cause
such Liens to cover only the inventory purchased and the proceeds thereof.



     7.02 Investments. Make or permit to remain outstanding any Investments, except:



     (a) Investments held by the Borrower or such Subsidiary in (i) the form of cash equivalents
and (ii) any deferred compensation plan of the Borrower or any Subsidiary in an aggregate amount
not to exceed $2,000,000;



     (b) advances to officers, directors and employees of the Borrower and Subsidiaries in an
aggregate amount not to exceed $500,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;




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     (c) Investments of the Borrower in any Guarantor and Investments of any Guarantor in the
Borrower or in another Guarantor;



     (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;



     (e) Guarantees permitted by Section 7.03;



     (f) Net Investments in Subsidiaries that are not Guarantors; provided that the
aggregate outstanding amount of such Investments made pursuant to this Section 7.02(f),
together with, without duplication, the aggregate amount of the outstanding Indebtedness permitted
by clause (iv) of Section 7.03(f) shall not exceed 25% of the Borrower’s total
stockholders equity as determined in accordance with GAAP; and provided, further,
that not less than 80% of Consolidated EBITDA shall be generated by the Borrower and Guarantors at
all times;



     (g) Permitted Acquisitions (including any Investments owned by a Person acquired in a
Permitted Acquisition);



     (h) Investments outstanding on the Closing Date and listed on Schedule 7.02;



     (i) other Investments by the Borrower or any of its Subsidiaries in an aggregate amount
(valued at cost) not to exceed $25,000,000 at any time outstanding.



     Notwithstanding the foregoing, the Borrower shall not, during 2009, make any Permitted
Acquisition permitted by clause (g) preceding or any other Investment permitted by
clause (i) preceding unless, after giving effect to any cash payment made in connection
with such Permitted Acquisition or Investment, the sum of (i) the difference between the Aggregate
Revolving Commitments and the Total Outstandings under the Revolving Facility and (ii) the cash
(excluding cash in an amount equal to amounts owing to counterparties to Coinstar Installation
Agreements as a result of the issuance by such counterparties of payment vouchers pursuant to such
Coinstar Installation Agreements in respect of coins contained in automated coin counting machines
that are owned by the Borrower or any of its Subsidiaries and that are subject to such Coinstar
Installation Agreements) and Eligible Cash Equivalents of the Borrower and its Subsidiaries, but
only to the extent owned by the Borrower or any of its Subsidiaries free and clear of all Liens
(other than Liens created under the Loan Documents and Liens permitted by Section 7.01(m))
shall be at least $40,000,000.



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



     (a) Indebtedness under the Loan Documents;



     (b) (i) Indebtedness (including in respect of Capital Lease Obligations, Synthetic Lease
Obligations and purchase money obligations, including those of Redbox) outstanding as of
December 31, 2008 and listed on Schedule 7.03, (ii) additional Capital Lease Obligations,
so long as the sum of the amount of such Capital Lease Obligations outstanding as of December 31,




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2008 (after giving effect to repayments thereof) and the amount of such additional Capital
Lease Obligations does not exceed $43,772,642, and (iii) any refinancings, refundings, renewals or
extensions of the Indebtedness described in clauses (i) and (ii) preceeding;
provided that (A) 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 (B) 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 Subsidiary in respect of Indebtedness otherwise
permitted hereunder of the Borrower or any Subsidiary;



     (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 in the ordinary course of business 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; 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) without limiting Section 7.03(b), other Indebtedness in respect of Capital Lease
Obligations, Synthetic Lease Obligations and purchase money obligations (including those of Redbox)
for fixed or capital assets within the limitations set forth in Section 7.01(i);
provided, however, that (i) until the Committed Term Loans have been paid in full,
the aggregate amount of all such Indebtedness incurred under this Section 7.03(e) after
December 31, 2008 shall not exceed at any one time outstanding an amount equal to $85,000,000, plus
the amount, if any, by which the aggregate amount of Committed Term Loans borrowed on or before the
Increase Effective Date is less than $100,000,000; and (ii) after the Committed Term Loans have
been paid in full, the aggregate amount of all such Indebtedness incurred under this Section
7.03(e) after December 31, 2008 shall not exceed $135,000,000 at any one time outstanding;



     (f) Indebtedness of (i) the Borrower to any Subsidiary, (ii) any Guarantor to the Borrower or
any other Guarantor, (iii) any Subsidiary that is not a Guarantor to any other Subsidiary that is
not a Guarantor or (iv) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor,
provided that the aggregate outstanding amount of the Indebtedness described in this
clause (iv), together with, without duplication, the aggregate outstanding amount of
Investments permitted by Section 7.02(f), shall not exceed the amount set forth in
Section 7.02(f);




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     (g) Indebtedness of a Subsidiary acquired pursuant to a Permitted Acquisition (or Indebtedness
assumed by the Borrower or any of its wholly-owned Subsidiaries pursuant to a Permitted Acquisition
as a result of a merger or consolidation or the acquisition of an asset securing such
Indebtedness), so long as (A) such Indebtedness was not incurred in connection with, or in
anticipation or contemplation of, such Permitted Acquisition and (B) the aggregate amount of such
Indebtedness acquired or assumed under this clause (g) does not exceed $40,000,000 at any
one time outstanding;



     (h) (i) unsecured Indebtedness of the Borrower in an aggregate principal amount not to exceed
$250,000,000 (which amount shall not be reduced to the extent the net cash proceeds of such
Indebtedness are used to pay or prepay the principal of the Committed Term Loans as provided in
Section 2.05(b) or Section 2.07(a)), so long as such Indebtedness matures after the
last occurring Maturity Date, has a weighted average life to maturity greater than the Obligations,
has no covenants or events of default that are materially more restrictive than those set forth in
the Loan Documents and otherwise has terms and conditions reasonably satisfactory to the
Administrative Agent, and (ii) the Guarantee obligations of any Subsidiary in respect of such
Indebtedness, provided that, if such Indebtedness of the Borrower is subordinated, such
Guarantee obligations are subordinated to the same extent as the obligations of the Borrower in
respect of such Indebtedness; and



     (i) additional unsecured (except as otherwise provided in Section 7.01(p)),
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate principal amount (for the
Borrower and all Subsidiaries) not to exceed $20,000,000 at any one time outstanding.



     7.04 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, so
long as no Default exists or would otherwise result therefrom:



     (a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall
be the continuing or surviving Person, or (ii) any other Subsidiary, provided that if a
Guarantor is a party to such merger, such Guarantor or another 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) (i) to the Borrower or (ii) to any other Subsidiary; provided
that if a Guarantor is a party to such transaction, such Guarantor or another Guarantor shall be
the transferee;



     (c) any Investment permitted by Section 7.02 may be structured as a merger,
consolidation or amalgamation; and



     (d) any Subsidiary that has Disposed of all or substantially all of its assets in accordance
with the provisions of this Agreement may be dissolved.



     7.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except:




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     (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business;



     (b) Dispositions of inventory 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 any Subsidiary (i) to the Borrower or (ii) to any other
Subsidiary; provided that if a Guarantor is a party to such transaction, a Guarantor shall
be the transferee;



     (e) Dispositions permitted by Section 7.04 and Dispositions constituting Investments
that are permitted by Section 7.02;



     (f) Dispositions for fair market value of Investments in Subsidiaries that are not Guarantors
and of Investments in minority interests in other Persons;



     (g) Dispositions for fair market value by the Borrower and its Subsidiaries not otherwise
permitted under this Section 7.05; provided that (i) at the time of such
Disposition, no Default shall exist or would result from such Disposition and (ii) the aggregate
book value of all property Disposed of in reliance on this clause (g) in any fiscal year
shall not exceed $10,000,000; and



     (h) Dispositions of equipment in a sale and leaseback transaction; provided that
(i) such equipment is acquired by the Borrower or its Subsidiary (as the case may be) after
February 26, 2009, (ii) such sale and leaseback transaction occurs within 90 days after such
acquisition, (iii) the Borrower or its Subsidiary (as the case may be) is permitted to incur any
Indebtedness resulting from such sale and leaseback transaction pursuant to Section 7.03
and (iv) any Lien that results from such sale and leaseback is not prohibited by
Section 7.01.  In the event that the Borrower or any of its Subsidiaries enters into any
sale and leaseback transaction that is permitted by this Section 7.05(h), any Liens granted
pursuant to or that exist as a result of any Loan Document shall be deemed automatically released
upon the conveyance of the equipment to the lessor under the sale and leaseback transaction.  In
such event, promptly upon the request of the Borrower, the Administrative Agent shall execute and
deliver to the Borrower a confirmation of such release of Lien in a form reasonably acceptable to
the Administrative Agent.



     7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that, so long as no Default shall
have occurred and be continuing at the time of any action described below or would result
therefrom:



     (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




73









 







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;



     (c) the Borrower may make Restricted Payments in connection with the incurrence of
Indebtedness permitted by Section 7.03(h), provided that, immediately following any
such Restricted Payment, the Consolidated Leverage Ratio shall not exceed 2.50 to 1.00;



     (d) the Borrower may make Restricted Payments in the amount of the cash proceeds received by
the Borrower from the exercise of stock options by its officers, directors, and employees; and



     (e) the Borrower may make other Restricted Payments not to exceed $25,000,000 in the
aggregate.



     7.07 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 or incidental thereto.



     7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of
the Borrower, whether or not in the ordinary course of business, other than on fair and reasonable
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 an Affiliate, provided that the foregoing restriction shall not apply to
transactions entirely between or among the Borrower and any Guarantor or entirely between and among
any Guarantors or limit Investments permitted by Section 7.02.



     7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement or
any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any
Guarantor, (ii) of any Subsidiary (other than an Excluded Foreign Subsidiary) to Guarantee the
Indebtedness of the Borrower or (iii) of the Borrower or any Subsidiary (other than an Excluded
Foreign Subsidiary) to create, incur, assume or suffer to exist Liens on property of such Person;
provided, however, that this clause (iii) shall not prohibit any negative pledge
incurred or provided in favor of any holder of Indebtedness permitted under Section 7.03(e)
solely to the extent any such negative pledge relates to the property financed by or the subject of
such Indebtedness; or (b) requires the grant by the Borrower or any Subsidiary (other than an
Excluded Foreign Subsidiary) of a Lien to secure an obligation of such Person if a Lien is granted
to secure another obligation of such Person.



     7.10 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.




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     7.11 Optional Payments of other Indebtedness. Make any optional or voluntary principal payment,
prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease or segregate
funds with respect to (a) the Indebtedness permitted to be incurred under Section 7.03(h),
or (b) any other Indebtedness, other than the Obligations, except as contemplated by Section
6.11(b) or in the ordinary course of business.



     7.12 Financial Covenants.



     (a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio for any period of four fiscal quarters of the Borrower to be less than 4.00 to 1.00.



     (b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio for any
period of four fiscal quarters of the Borrower set forth below to be greater than the ratio set
forth below opposite such period:



	 	 	 	 	 
	 	 	Maximum Consolidated
	Four Fiscal Quarters Ending	 	Leverage Ratio
	 
	On or before March 31, 2010
	 	 	3.50 to 1.00	 
	June 30, 2010 through December 31, 2010
	 	 	3.25 to 1.00	 
	March 31, 2011 and each fiscal quarter
thereafter
	 	 	3.00 to 1.00	 






     7.13 Capital Expenditures. Commencing with the Borrower’s 2008 fiscal year, but excluding the
Borrower’s 2009 fiscal year, make or commit to make any Capital Expenditure, except Capital
Expenditures of the Borrower and its Subsidiaries in the ordinary course of business, during any
fiscal year in excess of 80% of Consolidated EBITDA for the preceding fiscal year;
provided, that up to 50% of any such amount not so expended in the fiscal year for which it
is permitted may be carried over for expenditure in the next succeeding fiscal year. For the
Borrower’s 2009 fiscal year, make or commit to make any Capital Expenditure, except Capital
Expenditures of the Borrower and its Subsidiaries in the ordinary course of business, in excess of
$200,000,000; provided, that up to $50,000,000 of such amount not so expended in the
Borrower’s 2009 fiscal year may be carried over for expenditure in the Borrower’s 2010 fiscal year.
Capital Expenditures made pursuant to this Section during any fiscal year shall be deemed made,
first, in respect of amounts permitted for such fiscal year as provided above and, second, in
respect of amounts carried over from the prior fiscal year.



     7.14 GroupEx Acquisition. Amend or modify the acquisition agreement relating to the GroupEx
acquisition in any respect that could reasonably be expected to have a Material Adverse Effect or
that could reasonably be expected to be materially adverse to the interests of the Administrative
Agent and the Lenders, or cause or permit the acquisition of GroupEx to be consummated except upon
the terms and conditions of the acquisition agreement heretofore delivered to the Administrative
Agent and the Lenders, as such acquisition agreement may be amended or modified as permitted by
this Section 7.14.




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     7.15 Amendment of Certain Agreements. Amend or modify any agreement or instrument entered into in
connection with the Indebtedness permitted by Section 7.03(h) in a manner that causes such
agreement or instrument to have terms or conditions that are not permitted by Section
7.03(h).



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, (ii) within one day after the same
becomes due any principal of an L/C Obligation or (iii) within five 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
five 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(a), Section 6.04(a) or (b),
or Section 6.10 or Article VII, or any “Event of Default” under and as defined in
any Collateral Document shall have occurred and be continuing; 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 after written notice from the
Administrative Agent or the Required Lenders; 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 in any material respect 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 or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount,
or (B) fails to observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee 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 the beneficiary or beneficiaries
of such Guarantee (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),
prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract




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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 the Threshold Amount; or



     (f) Insolvency Proceedings, Etc. Any Loan Party 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 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) Any Loan Party 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 any Loan Party (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 the Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) any 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, (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 Threshold Amount, 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 the Threshold Amount; or



     (j) Invalidity of Loan Documents. Any Loan Party contests in any manner the validity
or enforceability of any provision 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 provision of any Loan Document, except because of payment or performance; or




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     (k) Change of Control. There occurs any Change of Control; or



     (l) Collateral Documents. Any Collateral Document after delivery thereof pursuant to
Section 4.01 or 6.12 shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected first priority Lien (subject to Liens permitted by
Section 7.01) on the Collateral purported to be covered thereby (except to the extent the
Administrative Agent has agreed not to require perfection of any such Lien), and such condition
continues for ten (10) days after written notice from the Administrative Agent or the Required
Lenders.



     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;



     (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 an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, 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 reasonable 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;




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     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including reasonable fees, charges and disbursements of counsel to the
respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be
employees of any Lender or 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, ratably (a) to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Fourth held by them, (b) 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 (c) to payment
of unpaid Obligations then due under Lender Swap Contracts and Cash Management Agreements, ratably
among the Lender Swap Providers and the Cash Management Banks in proportion to the respective
amounts described in this clause Fourth owed to them; and



     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 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fourth 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 and all L/C Obligations have
been paid in full, 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.



     (a) 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.



     (b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if




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applicable, potential Lender Swap Provider and potential Cash Management Bank), and the L/C
Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of
such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens
on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with
such powers and discretion as are reasonably incidental thereto. In this connection, the
Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral
Documents, or for exercising any rights and remedies thereunder at the direction of the
Administrative Agent), shall be entitled to the benefits of all provisions of this Article
IX and Article X (including Section 10.04(c), as though such co-agents,
sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set
forth in full herein with respect thereto.



     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




     (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.




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     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 the creation,
perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the
value or the sufficiency of any Collateral, or (vi) 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 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.




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     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, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States, 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 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 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 and Swing Line Lender. 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 and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender 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.



     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




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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 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Bookrunners, Arrangers or other agents listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.



     9.09 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 (other than
Obligations under any Lender Swap Contract or Cash Management Agreement) 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 2.03(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.



     9.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize the
Administrative Agent, at its option and in its discretion,




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     (a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part
of or in connection with any sale permitted hereunder or under any other Loan Document, or
(iii) subject to Section 10.01, if approved, authorized or ratified in writing by
the Required Lenders;




     (b) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by Section 7.01(i); and




     (c) to release any Guarantor from its obligations under the Guarantee and Collateral
Agreement if such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its obligations under the Guarantee
and Collateral Agreement pursuant to this Section 9.10. In each case as specified in this
Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver
to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence
the release of such item of Collateral from the assignment and security interest granted under the
Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from
its obligations under the Guarantee and Collateral Agreement, in each case in accordance with the
terms of the Loan Documents and this Section 9.10.



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 or waive any condition set forth in Section 4.03 without the written consent of
each Term Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them) or any




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scheduled or mandatory reduction of the Aggregate Commitments hereunder or under any other
Loan Document 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 (iv) 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 to (i) 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) 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, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder
without the written consent of each Lender;



     (g) release all or substantially all of the value of the Guarantee and Collateral Agreement
without the written consent of each Lender, except to the extent the release of any Guarantor is
permitted pursuant to Section 9.10 (in which case such release may be made by the
Administrative Agent acting alone); or



     (h) release all or substantially all of the Collateral in any transaction or series of related
transactions, without the written consent of each Lender, except to the extent the release of any
Collateral is permitted pursuant to Section 9.10 (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 Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) 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 (iv) each Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. 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 Commitment of such Lender may not be increased or extended without the
consent of such Lender.





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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, the L/C Issuer or the Swing Line
Lender, 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, or does not wish to receive, 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, the L/C
Issuer and the Swing Line Lender 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, the L/C Issuer and the Swing Line Lender. 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 Committed Loan Notices and Swing Line Loan Notices) purportedly 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 purportedly given by or on behalf of the Borrower. All telephonic notices to and other
telephonic communications with the




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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 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
syndication of the credit facilities provided for herein, 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 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 out-of-pocket expenses incurred
by the Administrative Agent, any Lender or the L/C Issuer (including the reasonable fees, charges
and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), and
shall pay all fees and time charges for attorneys who may be employees of the Administrative Agent,
any Lender 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 fees, charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements
for attorneys who may be employees of 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




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connection with such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability
related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, 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, IN ALL CASES,
WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR
SOLE NEGLIGENCE OF THE INDEMNITEE; 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 gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for
breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if
the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction.



     (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 pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought
and calculated based on the ratio that the Revolving Commitment and/or Term Commitment of each
Lender bears to the Aggregate Commitments or, if the Aggregate Commitments have been terminated,
that the Committed Revolving Loans, L/C Obligations, Swing Line Loans and/or Committed Term Loans
owing to each Lender (directly or by participation) bears to the Total Outstandings) 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, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
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




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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, the L/C Issuer and the Swing Line Lender, 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 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.




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     (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 Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000 unless each of the Administrative Agent and, so long as no Event of
Default 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 Loans or the Commitment assigned, except that this
clause (ii) shall not apply (A) to the Swing Line Lender’s rights and obligations in respect
of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights
and obligations among separate 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)(B) 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 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 in respect of (1) any Term
Commitment or Revolving Commitment if such assignment is to a Person that is




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not a Lender with a Commitment in respect of the applicable Facility, an
Affiliate of such Lender or an Approved Fund with respect to such Lender or (2) any
Committed 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); and




     (D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment in respect of the
Revolving Facility.




     (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 $3,500, which fee the Borrower shall not be
responsible to pay except as provided in Section 10.13; 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.




     (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




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the Lenders, and the Commitments of, 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 may treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.



     (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 Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) 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.



     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.



     (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.




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     (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 or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Revolving Commitment and Committed Revolving Loans pursuant to subsection (b) above, Bank of
America may, (i) upon 30 days’ notice to the Borrower and the Revolving Lenders, resign as L/C
Issuer and/or (ii) upon 30 days’ notice to the Borrower, resign as Swing Line Lender. In the event
of any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to
appoint from among the Revolving Lenders a successor L/C Issuer or Swing Line Lender 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 or Swing Line Lender, as the case may
be. 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 Committed Loans or fund
risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of
America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Revolving Lenders to make
Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to
Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender,
(a) such successor shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, 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 succession 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), 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




94









 







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 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, provided that, in the case of information received from the Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



     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 




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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 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 4.03, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.



     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, or if any Lender is a Defaulting
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




96









 







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 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



     (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. THE BORROWER 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, NEW YORK AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT
OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO 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




97









 







DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



          (c) WAIVER OF VENUE. THE BORROWER 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 BUT NOT BY ELECTRONIC COMMUNICATIONS.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY 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 and the Arrangers are arm’s-length commercial transactions
between the Borrower and its Affiliates, on the one hand, and the Administrative Agent and the
Arrangers, 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 and the
Arrangers each are and have 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




98









 







Affiliates, or any
other Person and (B) neither the Administrative Agent nor the Arrangers have any 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 the Arranger and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Borrower and its
Affiliates, and neither the Administrative Agent nor the Arrangers have any 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 and the Arrangers 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 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 Joinder. Each Lender that was not a party to the Original Agreement hereby joins in this
Agreement and agrees to be bound by the terms and conditions hereof as a Lender.



     10.19 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.



Remainder of page intentionally left blank

signature pages follow.





99









 








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



	 	 	 	 	 
	 	COINSTAR, INC.

 	 
	 	By:  	/s/ Brian V. Turner
 	 
	 	 	Name:  	Brian V. Turner 	 
	 	 	Title:  	Chief Financial Officer 	 
	 




S-1









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as Administrative Agent

 	 
	 	By:  	/s/ Kristine D. Thennes
 	 
	 	 	Name:  	Kristine D. Thennes 	 
	 	 	Title:  	Vice President 	 
	 




S-2









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Revolving Lender,

the L/C Issuer and the Swing Line Lender

 	 
	 	By:  	/s/ Forest Scott Singhoff
 	 
	 	 	Name:  	Forest Scott Singhoff 	 
	 	 	Title:  	Senior Vice President 	 
	 




S-3









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as a 

Revolving Lender

 	 
	 	By:  	/s/ Clara Sohan
 	 
	 	 	Name:  	Clara Sohan 	 
	 	 	Title:  	Vice President 	 
	 




S-4









 





	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a Revolving
Lender

 	 
	 	By:  	/s/ William A. Weiand
 	 
	 	 	Name:  	William A. Weiand 	 
	 	 	Title:  	Senior Vice President 	 
	 




S-5









 





	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as a Revolving
Lender

 	 
	 	By:  	/s/ Larsen Mettler
 	 
	 	 	Name:  	Larsen Mettler 	 
	 	 	Title:  	Associate 	 
	 




S-6









 





	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., as a Revolving Lender

 	 
	 	By:  	/s/ Benjamin Leonard
 	 
	 	 	Name:  	Benjamin Leonard 	 
	 	 	Title:  	Vice President 	 
	 




S-7









 





	 	 	 	 	 
	 	UNION BANK OF CALIFORNIA, N.A., as a Revolving

Lender

 	 
	 	By:  	/s/ Ray Ward
 	 
	 	 	Name:  	Ray Ward 	 
	 	 	Title:  	Vice President 	 
	 




S-8









 





	 	 	 	 	 
	 	COLUMBIA STATE BANK, as a Revolving Lender

 	 
	 	By:  	/s/ Kevin N. Meabon
 	 
	 	 	Name:  	Kevin N. Meabon 	 
	 	 	Title:  	Vice President 	 
	 




S-9









 





	 	 	 	 	 
	 	HSBC BANK USA, N.A., as a Revolving Lender

 	 
	 	By:  	/s/ Mire K. Levy
 	 
	 	 	Name:  	Mire K. Levy 	 
	 	 	Title:  	VP and Relationship Manager 	 
	 




S-10









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Term Lender

 	 
	 	By:  	/s/ Forest Scott Singhoff
 	 
	 	 	Name:  	Forest Scott Singhoff 	 
	 	 	Title:  	Senior Vice President 	 
	 




S-11









 





	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., as a Term Lender

 	 
	 	By:  	/s/ Benjamin Leonard
 	 
	 	 	Name:  	Benjamin Leonard 	 
	 	 	Title:  	Vice President 	 
	 




S-12









 





	 	 	 	 	 
	 	UNION BANK OF CALIFORNIA, N.A., as a Term

Lender

 	 
	 	By:  	/s/ Ray Ward
 	 
	 	 	Name:  	Ray Ward 	 
	 	 	Title:  	Vice President 	 
	 




S-13









 





	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a Term

Lender

 	 
	 	By:  	/s/ William A. Weiand
 	 
	 	 	Name:  	William A. Weiand 	 
	 	 	Title:  	Senior Vice President 	 
	 




S-14









 





	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as a Term Lender

 	 
	 	By:  	/s/ Larsen Mettler
 	 
	 	 	Name:  	Larsen Mettler 	 
	 	 	Title:  	Associate 	 
	 




S-15









 





	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A., as a Term Lender

 	 
	 	By:  	/s/ Melissa James
 	 
	 	 	Name:  	Melissa James 	 
	 	 	Title:  	Authorized Signatory 	 
	 




S-16









 





	 	 	 	 	 
	 	STATE BANK OF INDIA, LOS ANGELES AGENCY, as a
Term Lender

 	 
	 	By:  	/s/ K.S.S.NAIDU
 	 
	 	 	Name:  	K.S.S.NAIDU 	 
	 	 	Title:  	Vice President (CR. & OPS.) 	 
	 




S-17









 




To induce the Administrative Agent and the Lenders to enter into this Amended and Restated Credit
Agreement, the undersigned consent and agree (a) to its execution and delivery and terms and
conditions thereof, (b) that this document in no way releases, diminishes, impairs, reduces, or
otherwise adversely affects any Liens, Guarantees, assurances, or other obligations or undertakings
of any of the undersigned under any Loan Documents, which are hereby ratified and confirmed, and
(c) that this Amended and Restated Credit Agreement binds each of the undersigned and its
successors and permitted assigns and inures to the benefit of the Administrative Agent, the
Lenders, and their respective successors and permitted assigns.




	 	 	 	 	 
	 	BORROWER:


COINSTAR, INC.

 	 
	 	By:  	/s/ Brian V. Turner
 	 
	 	 	Name:  	Brian V. Turner 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	GUARANTORS:


4TH WALL MANAGEMENT LLC

ACMI ASIA INC.

ADVENTURE VENDING INC.

CELLCARDS LLC

CELLCARDS OF DELAWARE LLC

CELLCARDS OF ILLINOIS, L.L.C.

COIN-OP FACTORY INC.

COINSTAR ENTERTAINMENT SERVICES INC.

COINSTAR INTERNATIONAL, INC.

SESAME HOLDINGS, INC.

SOUTHWEST ENTERTAINMENT VENDING INC.

 	 
	 	By:  	/s/ Donald R. Rench
 	 
	 	 	Name:  	Donald R. Rench 	 
	 	 	Title:  	Secretary 	 
	 




S-18









 





	 	 	 	 	 	 	 
	 	 	ENTERTAINMENT VENDING MANAGEMENT, LLC	 	 
	 	 	REDBOX AUTOMATED RETAIL, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Coinstar, Inc., as Sole Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Donald R. Rench	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Donald R. Rench	 	 
	 

	 	 	 	Title: Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	COINSTAR E-PAYMENT SERVICES INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robbin L. Ayers	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Robbin L. Ayers	 	 
	 

	 	 	 	Title: Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	GROUPEX FINANCIAL CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ronald B. Axelrod	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Ronald B. Axelrod	 	 
	 

	 	 	 	Title: Secretary	 	 







S-19