Exhibit 10.1


 


EXECUTION COPY


 




 





 


$50,000,000


 


 


CREDIT AGREEMENT


 


 


Dated as of February 12, 2010


 


 


Among


 


 


GEOKINETICS HOLDINGS USA, INC.,


as Borrower,


 


 


ROYAL BANK OF CANADA,


as Administrative Agent and Collateral Agent,


 


 


THE OTHER LENDERS PARTY HERETO


 


 


and


 


 


RBC CAPITAL MARKETS*

as Sole Lead Arranger and Bookrunner


 




 





 






*                                        RBC Capital
Markets is the global brand name for the corporate and investment banking
businesses of Royal Bank of Canada and its affiliates.


 

















 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  
	
  Article I

  
	
   

  
	
  DEFINITIONS AND
  ACCOUNTING TERMS

  
	
   

  	
   

  
	
  Section 1.01

  	
  Defined Terms

  	
  1

  
	
  Section 1.02

  	
  Other
  Interpretive Provisions

  	
  35

  
	
  Section 1.03

  	
  Accounting Terms

  	
  35

  
	
  Section 1.04

  	
  Rounding

  	
  36

  
	
  Section 1.05

  	
  References to
  Agreements, Laws, Etc

  	
  36

  
	
  Section 1.06

  	
  Times of Day

  	
  36

  
	
  Section 1.07

  	
  Timing of
  Payment or Performance

  	
  36

  
	
  Section 1.08

  	
  Currency
  Equivalents Generally

  	
  36

  
	
   

  	
   

  	
   

  
	
  Article II

  
	
   

  	
   

  	
   

  
	
  THE COMMITMENTS AND CREDIT EXTENSIONS

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  The Loans

  	
  36

  
	
  Section 2.02

  	
  Borrowings,
  Conversions and Continuations of Loans

  	
  37

  
	
  Section 2.03

  	
  Letters of
  Credit

  	
  38

  
	
  Section 2.04

  	
  [Reserved]

  	
  44

  
	
  Section 2.05

  	
  Prepayments

  	
  44

  
	
  Section 2.06

  	
  Termination or
  Reduction of Revolving Credit Commitments

  	
  46

  
	
  Section 2.07

  	
  Repayment of
  Loans

  	
  47

  
	
  Section 2.08

  	
  Interest

  	
  47

  
	
  Section 2.09

  	
  Fees

  	
  47

  
	
  Section 2.10

  	
  Computation of
  Interest and Fees

  	
  48

  
	
  Section 2.11

  	
  Evidence of
  Indebtedness

  	
  48

  
	
  Section 2.12

  	
  Payments
  Generally

  	
  49

  
	
  Section 2.13

  	
  Sharing of
  Payments

  	
  51

  
	
  Section 2.14

  	
  Defaulting
  Lenders

  	
  51

  
	
  Section 2.15

  	
  Cash Collateral

  	
  52

  
	
   

  	
   

  	
   

  
	
  Article III

  
	
   

  
	
  TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY

  
	
   

  
	
  Section 3.01

  	
  Taxes

  	
  53

  
	
  Section 3.02

  	
  Illegality

  	
  55

  
	
  Section 3.03

  	
  Inability to
  Determine Rates

  	
  55

  
	
  Section 3.04

  	
  Increased Cost
  and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans

  	
  56

  
	
  Section 3.05

  	
  Funding Losses

  	
  57

  
	
  Section 3.06

  	
  Matters
  Applicable to All Requests for Compensation

  	
  57

  
	
  Section 3.07

  	
  Replacement of
  Lenders under Certain Circumstances

  	
  58

  
	
  Section 3.08

  	
  Survival

  	
  59

  



 


Geokinetics Holdings USA,
Inc. - Credit Agreement


 


i

















 


	
  Article IV

  
	
   

  
	
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  
	
   

  
	
  Section 4.01

  	
  Conditions of
  Initial Credit Extension

  	
  59

  
	
  Section 4.02

  	
  Conditions to
  All Credit Extensions

  	
  61

  
	
   

  	
   

  	
   

  
	
  Article V

  
	
   

  	
   

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  
	
  Section 5.01

  	
  Existence,
  Qualification and Power; Compliance with Laws

  	
  62

  
	
  Section 5.02

  	
  Authorization;
  No Contravention

  	
  62

  
	
  Section 5.03

  	
  Governmental
  Authorization; Other Consents

  	
  63

  
	
  Section 5.04

  	
  Binding Effect

  	
  63

  
	
  Section 5.05

  	
  Financial
  Statements; No Material Adverse Effect

  	
  63

  
	
  Section 5.06

  	
  Litigation

  	
  64

  
	
  Section 5.07

  	
  Ownership of
  Property; Liens

  	
  64

  
	
  Section 5.08

  	
  Perfection of
  Security Interests

  	
  64

  
	
  Section 5.09

  	
  Environmental
  Compliance

  	
  65

  
	
  Section 5.10

  	
  Taxes

  	
  66

  
	
  Section 5.11

  	
  Compliance with
  ERISA

  	
  66

  
	
  Section 5.12

  	
  Labor Matters

  	
  66

  
	
  Section 5.13

  	
  Subsidiaries;
  Equity Interests

  	
  66

  
	
  Section 5.14

  	
  Margin
  Regulations; Investment Company Act; USA PATRIOT Act

  	
  67

  
	
  Section 5.15

  	
  Disclosure

  	
  67

  
	
  Section 5.16

  	
  Intellectual
  Property

  	
  67

  
	
  Section 5.17

  	
  Solvency

  	
  67

  
	
  Section 5.18

  	
  No Default

  	
  67

  
	
  Section 5.19

  	
  Status of
  Revolving Credit Facility as Senior Indebtedness

  	
  67

  
	
  Section 5.20

  	
  Use of Proceeds

  	
  68

  
	
   

  	
   

  	
   

  
	
  Article VI

  
	
   

  
	
  AFFIRMATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Financial
  Statements

  	
  68

  
	
  Section 6.02

  	
  Certificates;
  Reports; Other Information

  	
  69

  
	
  Section 6.03

  	
  Notice
  Requirements; Other Information

  	
  70

  
	
  Section 6.04

  	
  Environmental
  Matters

  	
  71

  
	
  Section 6.05

  	
  Maintenance of
  Existence

  	
  73

  
	
  Section 6.06

  	
  Maintenance of
  Properties

  	
  73

  
	
  Section 6.07

  	
  Maintenance of
  Insurance

  	
  73

  
	
  Section 6.08

  	
  Compliance with
  Laws

  	
  73

  
	
  Section 6.09

  	
  Books and
  Records

  	
  73

  
	
  Section 6.10

  	
  Inspection
  Rights

  	
  73

  
	
  Section 6.11

  	
  Covenant to
  Guarantee Obligations and Give Security

  	
  74

  
	
  Section 6.12

  	
  Use of Proceeds

  	
  76

  
	
  Section 6.13

  	
  Further
  Assurances and Post-Closing Undertakings

  	
  76

  
	
  Section 6.14

  	
  Taxes

  	
  77

  
	
  Section 6.15

  	
  End of Fiscal
  Years; Fiscal Quarters

  	
  77

  



 


ii

















 


	
  Section 6.16

  	
  Material
  Contracts

  	
  77

  
	
  Section 6.17

  	
  Ratings

  	
  77

  
	
  Section 6.18

  	
  Compliance with
  Terms of Leaseholds

  	
  77

  
	
  Section 6.19

  	
  Collateral
  Access Agreements

  	
  78

  
	
   

  	
   

  	
   

  
	
  Article VII

  
	
   

  	
   

  	
   

  
	
  NEGATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Liens

  	
  78

  
	
  Section 7.02

  	
  Investments

  	
  80

  
	
  Section 7.03

  	
  Indebtedness

  	
  83

  
	
  Section 7.04

  	
  Fundamental
  Changes

  	
  84

  
	
  Section 7.05

  	
  Dispositions

  	
  85

  
	
  Section 7.06

  	
  Restricted
  Payments

  	
  86

  
	
  Section 7.07

  	
  Change in Nature
  of Business

  	
  87

  
	
  Section 7.08

  	
  Transactions
  with Affiliates

  	
  87

  
	
  Section 7.09

  	
  Prepayments,
  Etc. of Indebtedness; Amendments or Modification to Senior Note Documents

  	
  88

  
	
  Section 7.10

  	
  Negative Pledge

  	
  88

  
	
  Section 7.11

  	
  Partnerships, Etc

  	
  88

  
	
  Section 7.12

  	
  Amendments to Constitutive Documents

  	
  89

  
	
  Section 7.13

  	
  Total Leverage
  Ratio

  	
  89

  
	
  Section 7.14

  	
  Interest
  Coverage Ratio

  	
  89

  
	
  Section 7.15

  	
  Fixed Charge
  Coverage Ratio

  	
  89

  
	
  Section 7.16

  	
  Capital
  Expenditures

  	
  89

  
	
   

  	
   

  	
   

  
	
  Article VIII

  
	
   

  	
   

  	
   

  
	
  [RESERVED]

  
	
   

  
	
  Article IX

  
	
   

  	
   

  	
   

  
	
  EVENTS OF DEFAULT AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Events of
  Default

  	
  90

  
	
  Section 9.02

  	
  Remedies Upon
  Event of Default

  	
  92

  
	
  Section 9.03

  	
  Application of
  Funds

  	
  92

  
	
   

  	
   

  	
   

  
	
  Article X

  
	
   

  	
   

  	
   

  
	
  ADMINISTRATIVE AGENT AND OTHER AGENTS

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Appointment and
  Authorization of Agents

  	
  93

  
	
  Section 10.02

  	
  Delegation of
  Duties

  	
  95

  
	
  Section 10.03

  	
  Liability of
  Agents

  	
  95

  
	
  Section 10.04

  	
  Reliance by
  Agents

  	
  95

  
	
  Section 10.05

  	
  Notice of
  Default

  	
  96

  
	
  Section 10.06

  	
  Credit Decision;
  Disclosure of Information by Agents

  	
  96

  
	
  Section 10.07

  	
  Indemnification
  of Agents

  	
  96

  
	
  Section 10.08

  	
  Agents in their
  Individual Capacities

  	
  97

  



 


iii

















 


	
  Section 10.09

  	
  Successor Agents

  	
  97

  
	
  Section 10.10

  	
  Administrative
  Agent May File Proofs of Claim

  	
  98

  
	
  Section 10.11

  	
  Release of
  Collateral and Guaranty

  	
  98

  
	
  Section 10.12

  	
  Other Agents;
  Arrangers and Managers

  	
  99

  
	
  Section 10.13

  	
  Appointment of
  Supplemental Administrative Agents

  	
  99

  
	
   

  	
   

  	
   

  
	
  Article XI

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Amendments, Etc

  	
  100

  
	
  Section 11.02

  	
  Notices and
  Other Communications; Facsimile and Electronic Copies

  	
  101

  
	
  Section 11.03

  	
  No Waiver;
  Cumulative Remedies

  	
  105

  
	
  Section 11.04

  	
  Attorney Costs
  and Expenses

  	
  105

  
	
  Section 11.05

  	
  Indemnification
  by the Borrower

  	
  105

  
	
  Section 11.06

  	
  Payments Set
  Aside

  	
  106

  
	
  Section 11.07

  	
  Successors and
  Assigns

  	
  106

  
	
  Section 11.08

  	
  Confidentiality

  	
  110

  
	
  Section 11.09

  	
  Setoff

  	
  110

  
	
  Section 11.10

  	
  Counterparts

  	
  111

  
	
  Section 11.11

  	
  Integration

  	
  111

  
	
  Section 11.12

  	
  Survival of
  Representations and Warranties

  	
  111

  
	
  Section 11.13

  	
  Severability

  	
  111

  
	
  Section 11.14

  	
  GOVERNING LAW

  	
  111

  
	
  Section 11.15

  	
  WAIVER OF RIGHT
  TO TRIAL BY JURY

  	
  112

  
	
  Section 11.16

  	
  Binding Effect

  	
  112

  
	
  Section 11.17

  	
  Judgment
  Currency

  	
  112

  
	
  Section 11.18

  	
  Lender Action

  	
  113

  
	
  Section 11.19

  	
  USA PATRIOT Act

  	
  113

  



 


iv

















 


SCHEDULES


 


	
  1

  	
   

  	
  —

  	
   

  	
  Guarantors

  
	
  2

  	
   

  	
  —

  	
   

  	
  Collateral Documents for Initial Credit Extension

  
	
  1.01A

  	
   

  	
  —

  	
   

  	
  Existing Indebtedness

  
	
  1.01B

  	
   

  	
  —

  	
   

  	
  Foreign Subsidiaries

  
	
  1.01C

  	
   

  	
  —

  	
   

  	
  Immaterial Subsidiaries

  
	
  2.01

  	
   

  	
  —

  	
   

  	
  Revolving Credit Commitments

  
	
  5.03

  	
   

  	
  —

  	
   

  	
  Governmental Authorizations and Filings

  
	
  5.06

  	
   

  	
  —

  	
   

  	
  Litigation

  
	
  5.07(b)(i)

  	
   

  	
  —

  	
   

  	
  Owned Real Property

  
	
  5.07(b)(ii)

  	
   

  	
  —

  	
   

  	
  Leased Real Property

  
	
  5.07(b)(iii)

  	
   

  	
  —

  	
   

  	
  Leased Real Property Subject to Collateral Access Agreements

  
	
  5.08

  	
   

  	
  —

  	
   

  	
  Collateral Filings and Perfection Matters

  
	
  5.09(a)

  	
   

  	
  —

  	
   

  	
  Environmental Compliance Exceptions

  
	
  5.09(b)

  	
   

  	
  —

  	
   

  	
  Hazardous Material Release

  
	
  5.09(c)

  	
   

  	
  —

  	
   

  	
  Remedial Actions

  
	
  5.09(d)

  	
   

  	
  —

  	
   

  	
  Environmental Permits

  
	
  5.09(e)

  	
   

  	
  —

  	
   

  	
  Environmental Liabilities

  
	
  5.10(b)

  	
   

  	
  —

  	
   

  	
  Taxes

  
	
  5.11(a)

  	
   

  	
  —

  	
   

  	
  Compliance with ERISA

  
	
  5.13

  	
   

  	
  —

  	
   

  	
  Subsidiaries and Other Equity Investments

  
	
  5.16

  	
   

  	
  —

  	
   

  	
  Intellectual Property, Licenses

  
	
  6.14

  	
   

  	
  —

  	
   

  	
  Mortgaged Properties

  
	
  7.01(b)

  	
   

  	
  —

  	
   

  	
  Existing Liens

  
	
  11.02

  	
   

  	
  —

  	
   

  	
  Administrative Agent’s Office, Certain Addresses for Notices

  



 


EXHIBITS


 


Form of


 


	
  A-1

  	
   

  	
  —

  	
   

  	
  Loan Notice

  
	
  B

  	
   

  	
  —

  	
   

  	
  Prepayment Notice

  
	
  C

  	
   

  	
  —

  	
   

  	
  Note

  
	
  D

  	
   

  	
  —

  	
   

  	
  Compliance Certificate

  
	
  E

  	
   

  	
  —

  	
   

  	
  Assignment and Assumption

  
	
  F

  	
   

  	
  —

  	
   

  	
  Guaranty

  
	
  G-1

  	
   

  	
  —

  	
   

  	
  Pledge and Security Agreement

  
	
  G-2

  	
   

  	
  —

  	
   

  	
  Copyright Security Agreement

  
	
  G-3

  	
   

  	
  —

  	
   

  	
  Trademark Security Agreement

  
	
  H

  	
   

  	
  —

  	
   

  	
  Opinion of New York and Texas Counsel to Loan Parties

  
	
  I

  	
   

  	
  —

  	
   

  	
  Officer’s Certificate

  
	
  J

  	
   

  	
  —

  	
   

  	
  Perfection Certificate

  
	
  K

  	
   

  	
  —

  	
   

  	
  Executed Collateral Trust and Intercreditor Agreement

  



 


v
















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (“Agreement”)
is entered into as of February 12, 2010, among GEOKINETICS HOLDINGS USA,
INC., a Delaware corporation (the “Company” or the “Borrower”),
ROYAL BANK OF CANADA (“Royal Bank”), as Administrative Agent and
Collateral Agent and each lender from time to time party hereto (collectively,
the “Lenders” and individually, a “Lender”).


 


PRELIMINARY STATEMENTS


 


1.             Geokinetics Inc. (the “Parent”)
intends to acquire (the “Acquisition”) all of the outstanding units of substantially
all of the assets of the onshore seismic acquisition and multi-client library
business of Petroleum Geo-Services ASA and certain of its subsidiaries (the “Acquired
Business”).  To effect the
Acquisition, (i) the Company has raised gross cash proceeds of
$294,279,000 from the issuance of $300,000,000 of its 9.75% Senior Secured
Notes due 2014 (the “Senior Notes”), and (ii) the Parent will then
consummate the transactions pursuant to that certain Acquisition Agreement,
dated as of December 3, 2009 (the “Acquisition Agreement”), among
the Parent and certain subsidiaries of the Parent, Petroleum Geo-Services ASA
and the other sellers party thereto and immediately following the Acquisition,
the Acquired Business will be owned by one or more wholly-owned subsidiaries of
the Parent.


 


2.             The Company has requested
that simultaneously with the consummation of the Acquisition, the Lenders
extend credit to the Borrower in the form of Revolving Credit Commitments (as
defined below) in an aggregate principal amount of $50,000,000 (the “Revolving
Credit Facility”).  The Revolving
Credit Facility may include one or more letters of credit issued from time to
time in accordance with the terms hereof.


 


3.             The proceeds of (i) the
Senior Notes and (ii) equity raised by the Parent will be used to finance
the Acquisition and the Transaction Expenses, to refinance certain existing
Indebtedness of the Parent and the Company and for working capital and other
general corporate purposes.  The proceeds
of the loans made under the Revolving Credit Facility made after the Closing
Date will be used for working capital and other general corporate purposes of
the Borrower and its subsidiaries, including capital expenditures and the
financing of permitted acquisitions. 
Letters of credit will be used for general corporate purposes of the
Borrower and its subsidiaries.


 


4.             The Lenders have indicated
their willingness to lend, and the L/C Issuer (as defined below) has indicated
its willingness to issue letters of credit, in each case, on the terms and
subject to the conditions set forth herein.


 


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


 


ARTICLE
I


 


DEFINITIONS
AND ACCOUNTING TERMS


 


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


 


1

















 


“Accounting Principles”
means the accounting principles utilized in the preparation and presentation of
the management statements, the Unaudited Financial Statements and the Pro Forma
Financial Statements.


 


“Acquired EBITDA”
means, with respect to any Acquired Entity or Business for any period,
historical EBITDA of such Acquired Entity or Business as certified by a
Responsible Officer of the Borrower, which historical EBITDA shall be
calculated in a manner consistent with the definition of Consolidated Adjusted
EBITDA herein (but without giving effect to any Pro  Forma
Adjustments) and to be based on financial statements for such Acquired Entity
or Business prepared in accordance with GAAP and with such other adjustments
and add-backs as the Borrower may reasonably propose subject to the
Administrative Agent’s reasonable satisfaction with such other adjustments and
add-backs.


 


“Acquired Entity or
Business” means, for any period, any Person, property, business or asset
acquired by the Parent or any Subsidiary, to the extent not subsequently sold,
transferred or otherwise disposed of by the Borrower or such Subsidiary during
such period.


 


“Acquisition” has the
meaning specified in the Preliminary Statements to this Agreement.


 


“Acquisition Agreement”
has the meaning specified in the Preliminary Statements to this Agreement.


 


“Administrative Agent”
means, subject to Section 10.13, Royal Bank, in its capacity as
administrative agent under the Loan Documents, or any successor administrative
agent appointed in accordance with Section 10.09.


 


“Administrative Agent’s
Office” means, the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 11.02, or such other address or
account as the Administrative Agent may from time to time notify 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.  “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.


 


“Agent Parties” has
the meaning set forth in Section 11.02(f).


 


“Agent-Related Persons”
means the Agents, together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.


 


“Agents” means,
collectively, the Administrative Agent, the Collateral Agent, the Collateral
Trustee and the Supplemental Administrative Agents (if any).


 


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


 


“Agreement” means
this Credit Agreement.


 


“Agreement Currency”
has the meaning specified in Section 11.17.


 


2

















 


“Antitrust Laws”
means the Sherman Act, the Clayton Act, Heart-Scott Rodino Act, the Federal
Trade Commission Act, in each case, as amended, and all other federal, state
and foreign statutes, rules regulations, orders, decrees, administrative
and judicial doctrines, and other Laws that are designed or intended to
prohibit, restrict or regulate actions having the purpose or effect of
monopolization or restraint of trade.


 


“Applicable Lending
Office” means for any Lender, such Lender’s office, branch or affiliate
designated for Eurodollar Rate Loans, Base Rate Loans, L/C Advances or Letters
of Credit, as applicable, as notified to the Administrative Agent and the
Borrower or as otherwise specified in the Assignment and Assumption pursuant to
which such Lender became a party hereto, any of which offices may, subject to Section 3.01(e) and
Section 3.02, be changed by such Lender upon 10 days’ prior written
notice to the Administrative Agent and the Borrower; provided, that, for the purposes of the definition of “Excluded
Taxes” and Section 3.01, any such change shall be deemed an
assignment made pursuant to an Assignment and Assumption.


 


“Applicable Margin”
shall mean a percentage per annum equal to, (a) during the period from and
including the Closing Date to but excluding the Initial Financial
Statement Delivery Date, (A) for Eurodollar Rate Loans, 5.25% and (B) for
Base Rate Loans, 4.25% and (b) thereafter, the following percentages per
annum, based upon the Total Leverage Ratio as set forth in the most recent
certificate received by the Administrative Agent pursuant to Section 6.01(b):


 


	
  Pricing

  Level

  	
   

  	
  Total Leverage Ratio

  	
   

  	
  Applicable Margin for

  Eurodollar Rate

  Loans

  	
   

  	
  Applicable

  Margin for Base

  Rate

  Loans

  	
   

  
	
  1

  	
   

  	
  Greater than or equal to 2.50:1.00

  	
   

  	
  5.50

  	
  %

  	
  4.50

  	
  %

  
	
  2

  	
   

  	
  Greater than or equal to 2.00:1.00 but less than 2.50:1.00

  	
   

  	
  5.25

  	
  %

  	
  4.25

  	
  %

  
	
  3

  	
   

  	
  Greater than or equal to 1.50:1.00 but less than 2.00:1.00

  	
   

  	
  5.00

  	
  %

  	
  4.00

  	
  %

  
	
  4

  	
   

  	
  Less than 1.50:1.00 but greater than or equal to 1.00:1.00

  	
   

  	
  4.75

  	
  %

  	
  3.75

  	
  %

  
	
  5

  	
   

  	
  Less than 1.00:1.00

  	
   

  	
  4.50

  	
  %

  	
  3.50

  	
  %

  



 


Any increase or decrease in
the Applicable Margin resulting from a change in the Total Leverage Ratio shall
become effective as of the first Business Day immediately following the date Section 6.01
Financials are delivered to the Administrative Agent pursuant to Sections
6.01(a) and 6.01(b); provided that at the option of the
Required Lenders, the highest Pricing Level (as set forth in the table above)
shall apply as of the first Business Day after the date on which Section 6.01
Financials were required to have been delivered but have not been delivered
pursuant to Section 6.01 and shall continue to so apply to and
including the date on which such Section 6.01 Financials are so delivered
(and thereafter the Pricing Level otherwise determined in accordance with this
definition shall apply).


 


3

















 


In the event that the
Administrative Agent and the Borrower determine that any Section 6.01
Financials previously delivered were incorrect or inaccurate (regardless of
whether this Agreement or the Commitments are in effect when such inaccuracy is
discovered), and such inaccuracy, if corrected, would have led to the
application of a different Applicable Margin for any period (an “Applicable
Period”) than the Applicable Margin applied for such Applicable Period,
then (i) the Borrower shall as soon as practicable deliver to the
Administrative Agent the correct Section 6.01 Financials for such
Applicable Period, (ii) the Applicable Margin shall be determined as if
the Pricing Level for such different Applicable Margin were applicable for such
Applicable Period, and (iii) either, as applicable, (x) the
Administrative Agent shall apply any excess Applicable Margin previously paid
by the Borrower as a credit against the next payment of accrued interest due by
the Borrower, or (y) the Borrower shall within 3 Business Days of demand
thereof by the Administrative Agent pay to the Administrative Agent any accrued
additional interest owing as a result of such increased Applicable Margin for
such Applicable Period, which payment shall be promptly applied by the
Administrative Agent in accordance with this Agreement.  This paragraph shall not limit the rights of
the Administrative Agent and Lenders with respect to Section 2.08(b) and
Article VII.


 


“Appropriate Lender”
means, at any time, (a) with respect to Revolving Credit Loans, the
Lenders and (b) with respect to any Letters of Credit, (i) the
relevant L/C Issuer and (ii) the Lenders.


 


“Approved Fund”
means, with respect to any Lender, any Fund that is administered, advised or
managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an
entity or an Affiliate of an entity that administers, advises or manages such
Lender.


 


“Assignees” has the
meaning specified in Section 11.07(b).


 


“Assignment and
Assumption” means an Assignment and Assumption substantially in the form of
Exhibit E.


 


“Attorney Costs”
means and includes all reasonable fees, expenses and disbursements of any law
firm or other external legal counsel.


 


“Audited Financial
Statements” means the audited balance sheets of the Parent for the fiscal
year ended December 31, 2008 and the related audited statements of income
and cash flows of the Parent for the fiscal years ended December 31, 2008.


 


“Auto-Renewal Letter of
Credit” has the meaning specified in Section 2.03(b)(iii).


 


“Available Amount”
means, in respect of any Letter of Credit, at any time, the maximum amount
available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing).


 


“Base Amount” has the
meaning specified in Section 7.16.


 


“Base Rate” means a
fluctuating interest rate per annum in effect from time to time, which rate per
annum shall at all times be equal to the highest of:


 


(a)           3.0% per annum;


 


(b)           The higher of:


 


(i)            The Prime Rate
and


 


4

















 


(ii)           1⁄2 of 1% per
annum above the Federal Funds Rate; and


 


(c)           the Eurodollar
Rate (as determined pursuant to the definition thereof but without regard to
the LIBOR Floor specified therein) for an Interest Period of one month in
effect on such day plus 1%.


 


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


 


“Borrower” has the
meaning specified in the preamble to this Agreement.


 


“Borrowing” means a
borrowing consisting of Revolving Credit Loans of the Type and, in the case of
Eurodollar Rate Loans, having the same Interest Period made by each of the
Lenders pursuant to Section 2.01.


 


“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
province or state where the Administrative Agent’s Office is located and in the
State of New York; provided, that, if such
day relates to any interest rate settings as to a Eurodollar Rate Loan, any
fundings, disbursements, settlements and payments in respect of any such
Eurodollar Rate Loan, or any other dealings in Dollars to be carried out
pursuant to this Agreement in respect of any such Eurodollar Rate Loan,
Business Day also means any such day on which dealings in deposits in Dollars
are conducted by and between banks in the London interbank market.


 


“Capital Expenditures”
means, for any Person for any period, the sum of, without duplication, (a) all
expenditures made, directly or indirectly, by such Person or any of its Subsidiaries
during such period for equipment, fixed assets, real property or improvements,
or for replacements or substitutions therefor or additions thereto, that have
been or should be, in accordance with GAAP, reflected as additions to property,
plant or equipment on a consolidated balance sheet of such Person or have a
useful life of more than one year plus (b) the aggregate principal
amount of all Indebtedness (including Capitalized Lease Obligations) assumed or
incurred in connection with any such expenditures; provided, that,
Capital Expenditure shall not include:


 


(i)            expenditures
made with the proceeds of the Disposal of any property that are reinvested in
accordance with Section 2.05(b)(i); and


 


(ii)           expenditures
made by the Parent or any of its Subsidiaries with proceeds received from any
seller (or any Affiliate thereof or any other Person who has agreed to make
indemnification payments thereunder) in respect of any Permitted Acquisition
pursuant to any indemnification provisions set forth in the purchase agreement,
merger agreement, acquisition agreement or similar agreement in respect of such
Permitted Acquisition, to the extent such proceeds are actually applied to
remedy the specific event or circumstance giving rise to the claim for
indemnification or to replace or repair the specific fixed or capital asset
subject to such indemnification claim.


 


In addition, for purposes of
this definition, the purchase price of equipment that is purchased
simultaneously with (x) the trade-in of existing equipment or (y) insurance
proceeds, condemnation awards or other settlement proceeds in respect of lost,
destroyed, damaged or condemned assets, equipment or other property shall be
included in Capital Expenditures only to the extent of the gross amount of such
purchase price less, (1) in the case of the foregoing clause (x),
the credit granted by the seller of such equipment for the equipment being
traded in at such time or (2) in the case of the foregoing clause (y),
the amount of such proceeds.


 


5

















 


“Capitalized Lease
Obligation” means, at the time any determination thereof is to be made, the
amount of the liability in respect of a Capitalized Lease.


 


“Capitalized Leases”
means all leases that are required to be, in accordance with GAAP, recorded as
capitalized leases on the balance sheet (excluding footnotes thereto) of such
Person.


 


“Cash Collateral” has
the meaning specified in Section 2.15.


 


“Cash Collateral
Account” has the meaning specified in Section 2.15.


 


“Cash Collateralize”
has the meaning specified in Section 2.15.


 


“Cash Equivalents”
means any of the following types of Investments, to the extent owned by the
Parent or any Subsidiary:


 


(1)           Dollars and the
Dollar equivalent of any foreign currency;


 


(2)           securities
issued or directly and fully and unconditionally guaranteed or insured by the
United States government or any agency or instrumentality of the foregoing the
securities of which are unconditionally guaranteed as a full faith and credit
obligation of such government with maturities of 12 months or less from the
date of acquisition;


 


(3)           time deposits
with, or insured certificates of deposit or bankers’ acceptances of, any
commercial bank that (i) (A) is a Lender or (B) is a commercial
bank organized under the laws of (x) the United States of America, any
state thereof or the District of Columbia or (y) any other country that is
a member of the Organization for Economic Cooperation and Development, so long
as such bank is acting through a branch or agency located in the United States
and (ii) has combined capital and surplus of at least $1,000,000,000, in
each case with maturities of not more than 12 months from the date of
acquisition thereof;


 


(4)           securities
issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof and rated
at least “Prime-1” (or the 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 12 months from the date of acquisition thereof; provided,
that, at any time such securities do not meet the foregoing rating
requirements, such securities shall be reinvested in other investments
constituting Cash Equivalents within 15 days of any such ratings change;


 


(5)           commercial
paper in an aggregate amount of no more than $2,000,000 per issuer and
$5,000,000 in the aggregate outstanding at any time, issued by any Person 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 12 months from the date of acquisition thereof; provided,
that, at any such issuer fails to meet the foregoing rating requirements, such
commercial paper shall be reinvested in commercial paper or other investments
constituting Cash Equivalents within 15 days of any such ratings change;


 


(6)           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 are rated at least Aa or AA by Moody’s or S&P,
respectively, and the portfolios of which are limited predominantly to Dollars
and to Investments of the character, quality and maturity described in 


 


6

















 


clauses (2), (3), (4) and
(5) (but in the case of investments of the type specified in clause 5
above, without regard to the cap amounts specified therein) of this definition.


 


“Cash Management Bank”
means any Lender or any Affiliate of a Lender providing treasury, depository
and/or cash management services to the Parent or any Subsidiary or conducting
any automated clearing house transfers of funds.


 


“Cash Management
Obligations” means obligations owed by the Parent or any Subsidiary to any
Lender or any Affiliate of a Lender in respect of any overdraft and related
liabilities arising from treasury, depository or cash management services or
any automated clearing house transfers of funds.


 


“Casualty Event”
means any event that gives rise to the receipt by the Borrower or any
Subsidiary of any insurance proceeds or condemnation awards in respect of any
equipment, fixed assets or real property (including any improvements thereon)
to replace or repair such equipment, fixed assets or real property.


 


“CERCLA” means the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended from time to time.


 


“CERCLIS” means the
Comprehensive Environmental Response, Compensation and Liability Information
System maintained by the U.S. Environmental Protection Agency.


 


“CFC” means an entity
that is a controlled foreign corporation of the Borrower under Section 957
of the Code.


 


“Change in Law” shall
mean (a) the adoption of any law, treaty, order, policy, rule or
regulation after the date of this Agreement, (b) any change in any law,
treaty, order, policy, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this
Agreement or (c) the making or issuance of any guideline, request or
directive issued or made after the date hereof by any central bank or other
Governmental Authority (whether or not having the force of law).


 


“Change of Control”
means the earliest to occur of:


 


(a)   the Company
ceasing to be a direct Wholly-owned Subsidiary of the Parent;


 


(b)   at any time
Continuing Directors shall not constitute at least a majority of the Board of
Directors of the Parent;


 


(c)   any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act) shall become the “beneficial owner” (as defined in Rules 13(d)-3
and 13(d)-5 under such Act), directly or indirectly, of more than thirty-five
percent (35%) of the then outstanding voting stock of the Parent other than the
Principals; or


 


(d)   a “change of
control” or any comparable term under, and as defined in, the Senior Indenture
(or in the documentation governing any Permitted Refinancing of such Indebtedness)
or any documentation governing any Indebtedness for borrowed money of any Loan
Party or any Subsidiary of the Borrower with an aggregate outstanding principal
amount in excess of $5,000,000.


 


7

















 


“Closing Date” means
the date all the conditions precedent in Section 4.01 are satisfied
or waived in accordance with Section 11.01.


 


“Code” means the U.S.
Internal Revenue Code of 1986, as amended from time to time, and Treasury
regulations promulgated and rulings issued thereunder.


 


“Collateral” means
all the “Collateral” as defined in any Collateral Document and shall include
the Mortgaged Properties, if any.


 


“Collateral Agent”
means Royal Bank, in its capacity as collateral agent under any of the Loan
Documents, or any successor collateral agent appointed in accordance with Section 10.09.


 


“Collateral and Guarantee
Requirement” means, at any time, the requirement that:


 


(a)           the Collateral
Trustee shall have received each Collateral Document required to be delivered
on the Closing Date pursuant to Section 4.01(a)(iii) or
pursuant to Section 6.11 or Section 6.13 at such time,
duly executed by each Loan Party thereto;


 


(b)           all Obligations
shall have been unconditionally guaranteed (the “Guarantees”) by the
Parent and each Wholly-owned Material Subsidiary (other than a CFC or any
Subsidiary that is directly or indirectly owned by a CFC) including, as of the
Closing Date, those that are listed on Schedule 1 hereto (each, a “Guarantor”)
and such guarantees shall be substantially in the form of Exhibit F;
provided, that, with respect to any Subsidiary that is not Wholly-owned,
the obligation to provide a Guarantee shall be subject to any limitations or
prohibitions arising under constituent documents, any shareholder or joint
venture agreement, or applicable law relating to the granting of Guarantees;
and provided, further, that such guarantor shall use commercially
reasonable efforts and shall take all reasonable actions necessary or desirable
to remedy any such limitations or restrictions in the grant of such Guarantees;


 


(c)           the Obligations
and the Guarantees shall have been secured by a first priority security
interest in (i) all the Equity Interests of any direct or indirect
Subsidiary of the Borrower (other than any Subsidiary that is directly or
indirectly owned by a CFC), (ii) 66% of the issued and outstanding voting
Equity Interests and 100% of the non-voting Equity Interests of each
Wholly-owned Subsidiary that is a CFC and that is directly held by the Borrower
or by any Subsidiary of the Borrower (other than another CFC) and (iii) 100%
of the Equity Interests of any Subsidiary that is a Foreign Subsidiary (other
than a CFC) that is directly held by the Borrower or by any Subsidiary of the
Borrower (other than any Subsidiary that is a CFC or that is directly or
indirectly owned by a CFC) and, in each case, the Collateral Trustee shall have
received all certificates or other instruments (if any) representing such
Equity Interests, together with stock powers or other instruments of transfer
with respect thereto endorsed in blank; provided, that, in the case of clauses (ii) and
(iii) hereof, (A) the pledge of any shares in respect of any
Subsidiaries that are not Wholly-owned Subsidiaries shall be limited to the
shares actually owned by the applicable pledgor and (B) with respect to
any Subsidiary that is not Wholly-owned, the obligation to grant security shall
be subject to any limitations or prohibitions arising under the constituent
documents, any shareholder or joint venture agreement or applicable Law
relating to the grant of security; and provided, further, that,
with respect to the foregoing clause (B), such grantor shall use
commercially reasonable efforts and shall take all reasonable actions necessary
or desirable to remedy any such limitations or restrictions in the grant of
such pledge;


 


(d)           the Obligations
and the Guarantees shall have been secured by a first-priority security
interest in all Indebtedness of the Borrower and each Subsidiary that is owing
to any 


 


8

















 


Loan
Party and any such Indebtedness owing to a Loan Party by any Non-Loan Party shall be evidenced by a promissory note or an instrument
and shall have been pledged pursuant to the applicable Collateral Document, and
the Collateral Trustee shall have received all such promissory notes or
certificated instruments, together with note powers or other instruments of
transfer with respect thereto endorsed in blank;


 


(e)           except to the
extent otherwise provided hereunder or under any Collateral Document, the
Obligations and the Guarantees shall have been secured by a perfected first
priority security interest (other than in the case of mortgages, to the extent
such security interest may be perfected by delivering certificated securities
and stock powers endorsed in blank, filing Uniform Commercial Code financing
statements in the appropriate jurisdictions, delivering appropriate account
control agreements in respect of pledged accounts or making any necessary
filings with the United States Patent and Trademark Office or United States
Copyright Office) in, and mortgages on, substantially all tangible and
intangible assets of the Borrower and each other Guarantor (including but not
limited to accounts receivable, inventory, machinery and equipment, investment
property, cash, intellectual property, other general intangibles, owned and
leased real property and proceeds of the foregoing).


 


(f)            the
Administrative Agent shall have received a Perfection Certificate from each
Loan Party;


 


(g)           none of the
Collateral shall be subject to any Liens other than Liens permitted by Section 7.01;
and


 


(h)           The
Administrative Agent shall have received the Mortgages with respect to all real
property required to be delivered pursuant to Section 6.11 or Section 6.13
at such time as set forth therein (the “Mortgaged Properties”), together
with:


 


(i)            Evidence that
counterparts of the Mortgages with respect to the Mortgaged Properties have
been duly executed, acknowledged and delivered and are in form suitable for
filing or recording in all filing or recording offices as necessary to create a
valid first and subsisting Lien on the property described therein in favor of
the Collateral Trustee for the benefit of the Secured Parties along with a
check in the amount of all filing and recording taxes and fees;


 


(ii)           With respect to
any fee-owned real property that has a fair market value in excess of
$3,000,000, fully paid American Land Title Association Lender’s Extended
Coverage title insurance policies (the “Mortgage Policies”) in form and
substance, together with such endorsements that are reasonably required by the
Administrative Agent and which lenders typically receive in the jurisdiction
where the Mortgaged Property is located, issued by title insurers acceptable to
the Administrative Agent and insuring the Mortgages to be valid first and
subsisting Liens on the real property described therein, in a customary form in
the jurisdiction where the Mortgaged Property is located free and clear of all
defects (including, but not limited to, mechanics’ and materialmen’s Liens) and
encumbrances, except as expressly permitted by Section 7.01;


 


(iii)          With respect to
any fee-owned real property that has a fair market value in excess of
$3,000,000, American Land Title Association/American Congress on Surveying and
Mapping form surveys, for which all necessary fees (where applicable) have been
paid, dated no more than 90 days before the date of 


 


9

















 


delivery of such surveys,
certified to the Administrative Agent and the issuer of the Mortgage Policies
in a manner reasonably satisfactory to the Administrative Agent by a land
surveyor duly registered and licensed in the States in which the real property
described in such surveys is located, showing no material defects except as
permitted by Section 7.01 and otherwise acceptable to the
Administrative Agent;


 


(iv)          Satisfactory
evidence of insurance required to be maintained pursuant to Section 6.07,
or otherwise required by the terms of the Mortgages, in respect of Mortgaged
Properties;


 


(v)           With respect to
any fee-owned real property that has a fair market value in excess of
$3,000,000, favorable opinions of local counsel for the Loan Parties (i) in
states or provinces in which the real properties are located, with respect to
the enforceability and perfection of the Mortgages and any related fixture
filings in form and substance reasonably satisfactory to the Administrative
Agent and (ii) in states in which the Loan Parties to the Mortgages are
organized or formed, with respect to the valid existence, corporate power and
authority of such Loan Parties in the granting of the Mortgages, in form and
substance reasonably satisfactory to the Administrative Agent; and


 


(vi)          Such consents
and agreements of other third parties, such estoppel letters and other
confirmations, and such other evidence and other actions that, in each case,
the Administrative Agent and the Collateral Trustee may reasonably deem
necessary in order to create valid and subsisting Liens on the property
described in the Mortgages has been taken.


 


Notwithstanding the
foregoing, no pledge of any shares or Collateral and no Guarantee shall be
required to be given by any such pledgor or grantor that is a Foreign
Subsidiary to the extent (1) prohibited by applicable Law or (2) where
the grant of such security, pledge or Guarantee would result in a significant
risk to the directors or officers of such grantor, pledgor or Guarantor of
contravention of their fiduciary duties and/or criminal or civil liability to
such directors or officers; provided, that in each of the foregoing clauses
(1) and (2), such grantor, pledgor or guarantor or the officers
and directors thereof, as applicable, shall use commercially reasonable efforts
and shall take all reasonable actions necessary or desirable to remedy any such
limitations or restrictions and make the granting of such security interests,
Guarantee or pledge of Collateral feasible.


 


The foregoing definition
shall not require the creation or perfection of pledges of or security
interests in, or the obtaining of title insurance or surveys with respect to,
particular assets if and for so long as the Administrative Agent determines in
its reasonable discretion that the cost of creating or perfecting such pledges
or security interests in such assets or obtaining title insurance or surveys in
respect of such assets shall be excessive in view of the benefits to be
obtained by the Lenders therefrom.


 


The Administrative Agent may
grant extensions of time for the perfection of security interests in or the
obtaining of title insurance and surveys with respect to particular assets
(including extensions beyond the Closing Date for the perfection of security
interests in the assets of the Loan Parties on such date) where it reasonably
determines that perfection cannot be accomplished without undue effort or
expense by the time or times at which it would otherwise be required by this
Agreement or the Collateral Documents.


 


10
















 


Notwithstanding
anything to the contrary included in this definition, delivery of only the
items listed on Schedule 2 hereto shall be a condition precedent to
the Initial Credit Extension.


 


“Collateral
Access Lease” means any individual lease of any real property under which
any Loan Party or any Subsidiary thereof is the lessee on which equipment,
inventory and fixtures with a fair value of not less than $500,000 individually
or in the aggregate are stored or located. 
As of the Closing Date, the leases set forth on Schedule 5.07(b)(iii) comprise
all Collateral Access Leases of the Loan Parties and their Subsidiaries.


 


“Collateral
Documents” means, collectively, the Pledge and Security Agreement, the
Trademark Security Agreement, the Copyright Security Agreement, the Collateral
Trust and Intercreditor Agreement, the Mortgages (if any), collateral
assignments, Intellectual Property Security Agreement Supplements, security
agreements, pledge agreements, account control agreements or other similar
agreements delivered to the Collateral Trustee and the Lenders pursuant to Section 4.01(a)(iii) (except
with respect to Mortgages), Section 6.11 or Section 6.13,
the Guaranty and each of the other agreements, instruments or documents that
creates or purports to create a Lien or Guarantee in favor of the Collateral
Trustee for the benefit of the Secured Parties.


 


“Collateral
Trust and Intercreditor Agreement” means the Collateral Trust and
Intercreditor Agreement, dated as of December 23, 2009 and attached hereto
as Exhibit K, among the Company, the Parent, the other Guarantors,
U.S. Bank National Association, as trustee under the Senior Indenture, the
Administrative Agent, the other Priority Debt Representatives (as defined
therein), and U.S. Bank National Association, as Collateral Trustee.


 


“Collateral
Trustee” means U.S. Bank National Association, solely in its capacity as
collateral trustee under the Collateral Trust and Intercreditor Agreement and
any other the Loan Document, or any successor collateral trustee.


 


“Commitment
Fee” has the meaning provided in Section 2.09(a).


 


“Communications”
has the meaning specified in Section 11.02(e).


 


“Company”
has the meaning specified in the Preliminary Statements.


 


“Compensation
Period” has the meaning specified in Section 2.12(c)(ii).


 


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


 


“Consolidated
Adjusted EBITDA” means, for any period, (i) the sum of (without
duplication, including for purposes of determining Consolidated Net Income),
determined on a consolidated basis for such Person and its Subsidiaries in each
case, to the extent deducted in determining Consolidated Net Income for such
period:


 


(a)          Consolidated Net Income (or
net loss),


 


(b)         consolidated interest
expense in accordance with GAAP,


 


(c)          taxes based on income,


 


(d)         non-cash unrealized net
losses under any permitted Swap Contracts,


 


11

















 


(e)          Consolidated Depreciation
and Amortization Expense,


 


(f)            expenses related to the
Transaction to the extent not capitalized,


 


(g)         any one-time non-cash
charges in connection with a Permitted Acquisition or permitted Investments,


 


(h)         any (1) one-time
non-cash expenses; or (2) charges incurred in connection with the
issuance, exercise, cancellation or appreciation of options and other equity
grants in respect of Equity Interests,


 


(i)             to the extent decreasing
consolidated net income for such period, any extraordinary items in accordance
with GAAP, and


 


(j)             other non-recurring,
non-cash charges and non-cash losses in respect of unrealized currency
translations, in each case, deducted in arriving at Consolidated Net Income;


 


(ii)           minus the sum of


 


(a)          non-cash credits included in
arriving at such Consolidated Net Income (or net loss),


 


(b)         non-cash unrealized net
gains in respect of permitted Swap Contracts, and


 


(c)          other non-cash extraordinary
gains to the extent included in calculating Consolidated Net Income.


 


For
purposes of the Financial Covenants, Consolidated Adjusted EBITDA for the first
fiscal three quarters of the Fiscal Year ended 2009 shall be $20,800,000,
$36,600,000 and $23,400,000, respectively.


 


“Consolidated
Depreciation and Amortization Expense” means with respect to any Person for
any period, the total amount of depreciation and amortization expense of such
Person and its Subsidiaries for such period on a consolidated basis and
otherwise determined in accordance with GAAP.


 


“Consolidated
Interest Expense” means, with respect to any Person for any period, without
duplication, the sum of:


 


(a)           consolidated cash interest expense of
such Person and its Subsidiaries for such period, to the extent such expense
was deducted (and not added back) in computing Consolidated Net Income
(including (i) all cash commissions, discounts and other fees and charges
owed with respect to letters of credit or bankers acceptances, (ii) the
cash interest component of Capitalized Lease Obligations, and (iii) net
cash payments, if any, made (less net payments, if any, received) pursuant to
interest rate obligations under any Swap Contracts with respect to Indebtedness
and excluding, (1) penalties and interest relating to taxes, (2) any
additional cash interest owing pursuant to any registration rights agreement
with respect to securities, (3) any expensing of bridge, commitment and
other financing fees, (4)  any interest expense associated with the Parent’s
Series C Preferred Stock or any other Equity Interest or hybrid security
that is determined to constitute Indebtedness in accordance with GAAP and (5) any
accretion of accrued and unpaid interest on discounted liabilities); less


 


(b)           cash interest income for such period.


 


12

















 


For
purposes of this definition, interest on a Capitalized Lease Obligation shall
be deemed to accrue at an interest rate reasonably determined by such Person to
be the rate of interest implicit in such Capitalized Lease Obligation in
accordance with GAAP.


 


“Consolidated
Net Income” means, with respect to any Person for any period, the aggregate
of the Net Income of such Person and its Subsidiaries for such period, on a
consolidated basis, and otherwise determined in accordance with GAAP.


 


“Consolidated
Total Debt” means, as of any date of determination, the aggregate principal
amount of Indebtedness of such Person and its Subsidiaries outstanding on such
date, determined on a consolidated basis in accordance with GAAP (but excluding
the effect of any discounting of Indebtedness resulting from the application of
purchase accounting in connection with the Transaction or any Permitted
Acquisition), consisting of Indebtedness for borrowed money, obligations in
respect of Capitalized Leases and debt obligations evidenced by promissory
notes or similar instruments; provided, that, Consolidated Total Debt
shall exclude Indebtedness in respect of (i) all letters of credit except (x) to
the extent of unreimbursed amounts thereunder and (y) in respect of the
L/C Exposure of any Defaulting Lender to the extent not Cash Collateralized, (ii) Parent’s
Series C Preferred Stock and any other Equity Interest or hybrid security
of the Parent that is determined to constitute Indebtedness in accordance with
GAAP and (iii) obligations under Swap Contracts.


 


“Continuing
Directors” means the directors, managers or equivalent body of the Parent
on the Closing Date, as elected or appointed after giving effect to the
Acquisition and the other transactions contemplated hereby, and each other
director, manager or equivalent body, if, in each case, such other director’s,
manager’s or equivalent body’s nomination for election to the board of
directors, board of managers or other governing body of the Parent is
recommended by a majority of the then Continuing Directors.


 


“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”
has the meaning specified in the definition of “Affiliate”.


 


“Copyright
Security Agreement” means the Copyright Security Agreement executed by
certain Loan Parties substantially in the form of Exhibit G-2.


 


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


 


“Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or any similar foreign,
federal or state law for the relief of debtors 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 an interest rate equal to (a) the Base Rate plus (b) the
Applicable Margin applicable to Base Rate Loans plus (c) 2.0% per
annum; provided, that, with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including
any 


 


13

















 


Applicable Margin) otherwise applicable to such Loan plus 2.0% per
annum, in each case, to the fullest extent permitted by applicable Laws.


 


“Defaulting
Agent” means an Administrative Agent that is a Defaulting Lender.


 


“Defaulting
Lender” means any Lender that (a) (i) has failed to fund any
portion of the Revolving Credit Loans or participations in L/C Obligations
required to be funded by it hereunder within one (1) Business Day of the
date required to be funded by it hereunder, (ii) has notified the
Borrower, the Administrative Agent and the L/C Issuer that it does not intend
to comply with its funding obligations under this Agreement or has made a
public statement to the effect that it does not intend to comply with its
funding obligations under this Agreement or under other existing agreements
under which it has an obligation to extend credit, (iii) failed, within
one (1) Business Day after request by the Administrative Agent, to provide
written confirmation that it will comply with the terms of this Agreement
relating to its obligations to fund prospective Loans and participations in
then outstanding Letters of Credit, (iv) 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 (1) Business Day of the date when due, or (v) has
been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding and (b) solely for purposes of Section 2.14, (i) any
Lender described in the preceding clause (a) and (ii) as
determined by the Administrative Agent and the L/C Issuer, as applicable, in
their reasonable discretion, any Lender that (A) is in default of its
obligations under any other existing credit or loan documentation under which
it has a commitment to extend credit or (B) has an imminent prospect of
becoming a Defaulting Lender, as determined by the Administrative Agent or L/C
Issuer, as applicable, on a factually supportable basis upon the current
market or financial condition of such Lender at the time of such determination.


 


“Disposed
EBITDA” means, with respect to any Sold Entity or Business for any period,
historical EBITDA of such Sold Entity or Business as certified by a Responsible
Officer of the Borrower, which historical EBITDA shall be calculated in a
manner consistent with the definition of Consolidated Adjusted EBITDA herein (but
without giving effect to any Pro  Forma Adjustments) and to be
based on financial statements for such Sold Entity or Business prepared in
accordance with GAAP and subject to the Administrative Agent’s reasonable
satisfaction that such Disposed EBITDA is calculated in such manner.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale of Equity Interests and any Sale Leaseback
transaction) 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; provided,
that, no transaction or series of related transactions shall be considered a “Disposition”
for purposes of Section 2.05(b)(iii) or Section 7.05
unless the Net Cash Proceeds resulting from such transaction shall exceed
$10,000 individually and $250,000 per Fiscal Year.


 


“Disqualified
Equity Interests” means any Equity Interest which, by its terms (or by the
terms of any security or other Equity Interests into which it is convertible or
for which it is exchangeable), or upon the happening of any event or condition (a) matures
or is mandatorily redeemable (other than solely for Qualified Equity
Interests), pursuant to a sinking fund obligation or otherwise (except as a
result of a change of control or asset sale so long as any rights of the
holders thereof upon the occurrence of a change of control or asset sale event
shall be subject to the prior repayment in full of the Loans and all other
Obligations that are accrued and payable and the termination of the Revolving
Credit Commitments and all outstanding Letters of Credit), (b) is
redeemable at the option of the holder thereof (other than solely for Qualified
Equity Interests), in whole or in part, (c) provides for the scheduled
payments of dividends in cash, or (d) is or becomes convertible into or
exchangeable for Indebtedness or any other Equity Interests that would
constitute Disqualified Equity Interests; provided, that, if such 


 


14

















 


Equity Interests are issued pursuant to a plan for the benefit of
employees of the Parent, the Company or any of its Subsidiaries or by any such
plan to such employees, such Equity Interests shall not constitute Disqualified
Equity Interests solely because it may be required to be repurchased by the
Parent, the Company or any of its Subsidiaries in order to satisfy applicable
statutory or regulatory obligations.


 


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


 


“Domestic
Subsidiary” means any Subsidiary that is organized under the laws of the
United States, any state thereof or the District of Columbia.


 


“Eligible
Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an
Approved Fund and (d) any other Person (other than an individual) approved
by the Administrative Agent, the L/C Issuer, and, unless an Event of Default
has occurred and is continuing, the Borrower (which consent shall not be
unreasonably withheld or delayed).


 


“Environmental
Laws”  means any Federal, state,
local or foreign statute, law, ordinance, rule, regulation, common law, code,
order, writ, judgment, injunction, decree or judicial or agency interpretation,
policy or guidance relating to pollution or protection of the environment,
health and safety as it relates to any Hazardous Material or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials.


 


“Environmental
Action” means any action, suit, demand, demand letter, claim, notice of
non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any
way to any Environmental Law, any Environmental Permit or Hazardous Material or
arising from alleged injury or threat to health and safety as it relates to any
Hazardous Material or the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.


 


“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities) of any 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.


 


“Environmental
Permit” means any permit, approval, identification number, license or other
authorization required under any Environmental Law.


 


“Equity
Interests” means, with respect to any Person, shares of capital stock of
(or other ownership or profit interests in) such Person, warrants, options or
other rights for the purchase or other acquisition from such Person of shares
of capital stock of (or other ownership or profit interests in) such Person,
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 other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or 


 


15

















 


nonvoting, and whether or not such shares, warrants, options, rights or
other interests are authorized or otherwise existing on any date of determination.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time and Treasury regulations promulgated and rulings issued thereunder.


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) that
is under common control with any Loan Party and is treated as a single employer
within the meaning of Section 414 of the Code or Section 4001 of
ERISA.


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by any Loan Party 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 at any facility of any Loan Party or ERISA Affiliate as described
in Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan,
notification of any Loan Party or ERISA Affiliate concerning the imposition of
withdrawal liability or notification that a Multiemployer Plan is insolvent or
is in reorganization within the meaning of Title IV of ERISA (or that is in
endangered or critical status, within the meaning of Section 305 of
ERISA); (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 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;
(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
any Loan Party or any ERISA Affiliate; (g) on or after the effectiveness
of the Pension Act, a determination that any Pension Plan is, or is expected to
be, in “at-risk” status (within the meaning of Section 303(i)(4)(A) of
ERISA or Section 430(i)(4)(A) of the Code); or (h) the
conditions for imposition of a lien under Section 303(k) of ERISA
shall have been met with respect to any Pension Plan.


 


“Eurodollar
Rate” shall mean, for any Interest Period with respect to any Eurodollar
Rate Loan, an interest rate per annum equal to the product of (a) LIBOR in
effect for such Interest Period and (b) Statutory Reserves


 


Where,


 


“LIBOR”
means, for any Interest Period with respect to any Eurodollar Rate Loan, the
highest of:


 


(a)           2.0% per annum (“Libor Floor”),


 


(b)           the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the LIBOR01 screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London
time) two (2) Business Days prior to the first day of such Interest
Period, or


 


(c)           if the rates referenced in the
preceding subsection (b) are not available, the rate per annum
determined by the Administrative Agent as the rate of
interest (rounded upward to the next 1/100th of 1%) at which deposits in
Dollars for delivery on 


 


16

















 


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 the
Administrative Agent and with a term equivalent to such Interest Period would
be offered by the Administrative Agent’s London Branch to major banks in the
offshore Dollar market at their request at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such
Interest Period.


 


“Statutory
Reserves” means a fraction (expressed as a decimal), the numerator of which
is the number one and the denominator of which is the number one minus the
aggregate of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the FRB and any
other banking authority, domestic or foreign, to which the Administrative Agent
or any Lender (including any branch, Affiliate, or other fronting office making
or holding a Loan) is subject for Eurodollar Liabilities (as defined in
Regulation D of the FRB).  Such reserve
percentages shall include those imposed pursuant to such Regulation D.  Eurodollar Rate Loans shall be deemed to
constitute Eurodollar Liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation
D.  Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.


 


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


 


“Event
of Default” has the meaning specified in Section 9.01.


 


“Excess
Amount” has the meaning specified in Section 7.16.


 


“Exchange
Act” means the Securities Exchange Act of 1934.


 


“Exchange
Rate” means on any day with respect to any currency other than Dollars, the
rate at which such currency may be exchanged into Dollars, as set forth at
approximately 12:00 noon (New York time) on such day on the
Reuters Fedspot page for such currency; in the event that such rate
does not appear on any Reuters page, the Exchange Rate shall be determined
by the Administrative Agent to be the rate quoted by it at the spot rate
purchased by it of U.S. Dollars with Euros through its principal foreign
exchange trading office at approximately 12:00 noon on the date as of
which the foreign computation is made.


 


“Excluded
Taxes” means, (a) with respect to each Agent and each Lender, taxes
(including any additions to tax, penalties and interest) imposed on its overall
net income or net profits (including any branch profits or franchise taxes
imposed in lieu thereof) by the jurisdiction (or any political subdivision
thereof) under the Laws of which such Agent or such Lender, as the case may be,
is resident or deemed to be resident, is organized, maintains an Applicable
Lending Office, or carries on business or is deemed to carry on business (other
than a jurisdiction in which such Agent or such Lender would not have been
treated as carrying on business but for its execution or delivery of any Loan
Document or its exercise of its rights or performance of its obligations
thereunder) to which such payment relates and (b) any withholding tax that
is imposed by the United States on amounts payable to a Lender under the law in
effect at the time such Lender becomes a party to this Agreement (or, in the
case of a Participant, on the date such Participant became a Participant
hereunder) or is attributable to a Lender’s or Participant’s failure or
inability to comply with Section 3.01(f); provided, that, this clause (b) shall not apply to
the extent that (x) the indemnity payments or additional amounts any
Lender (or Participant) 


 


17

















 


would be entitled to receive (without regard to this clause (b))
do not exceed the indemnity payment or additional amounts that the person
making the assignment, participation or transfer to such Lender (or Participant)
would have been entitled to receive in the absence of such assignment,
participation or transfer or (y) any Tax is imposed on a Lender in
connection with an interest or participation in any Loan or other obligations
that such Lender was required to acquire pursuant to Section 2.13
or that such Lender acquired pursuant to Section 3.07(b) (it
being understood and agreed, for the avoidance of doubt, that any withholding
tax imposed on a Lender or Participant (i) as a result of a Change in Law
occurring after the time such Lender became a party to this Agreement (or
designates a new lending office) or such Participant acquires its participation
shall not be an Excluded Tax) and (ii) as a result of a change in
circumstances (such as a Lender or Participant’s change in its jurisdiction of
organization, but not a change in circumstances made at the request of the
Borrower), other than a Change in Law, with respect to such Lender or
Participant after the time such Lender became a party to this Agreement (or designates
a new lending office) or such Participant acquires its participation, shall be
considered an Excluded Tax but only to the extent such withholding tax would
have been imposed on such Lender or Participant and would have been an Excluded
Tax under such circumstances at the time such Lender became a party to this
Agreement (or designated a new lending office) or such Participant acquired its
participation.


 


“Existing
Indebtedness” means Indebtedness of the Company or any of its Subsidiaries
outstanding immediately prior to the Closing Date and listed on Schedule 1.01A
hereto.


 


“Extraordinary
Receipt” means any cash received by or paid to or for the account of any
Person not in the ordinary course of business, including, without limitation,
income tax refunds, pension plan reversions, proceeds of insurance (including,
without limitation, any key man life insurance, but excluding proceeds of
business interruption insurance to the extent such proceeds constitute
compensation for lost earnings), condemnation awards (and payments in lieu
thereof), indemnity payments and any purchase price adjustment received in
connection with any purchase agreement.


 


“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 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 charged to
the Administrative Agent on such day on such transactions as determined by the
Administrative Agent.


 


“Fee
Letter” means the Fee Letter dated December 2, 2009 (or as of such
date) between the Borrower and Royal Bank, as amended, supplemented or
otherwise modified from time to time.


 


“Financial
Covenants” means the covenants set forth in Sections 7.13 , 7.14
and 7.15.


 


“Fiscal
Year” means the fiscal year of the Parent and its Subsidiaries ending on December 31
of each calendar year.


 


“Fixed
Charge Coverage Ratio” means, for any period, in each case for the Parent
and its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated
Adjusted EBITDA for the applicable Test Period, minus Maintenance Capital
Expenditures and cash tax payments during such Test Period to (b) the sum
of (i) Consolidated Interest Expense during such Test Period plus (ii) scheduled
repayments of principal amounts of Indebtedness for such Test Period whether or
not actually paid during such Test Period.


 


18

















 


“Foreign
Plan” means any employee benefit plan, program, policy, arrangement or
agreement maintained or contributed to or by, or entered into with, any Loan
Party or any Subsidiary with respect to employees outside the United States.


 


“Foreign
Subsidiary” means any direct or indirect Subsidiary of the Borrower which
is not a Domestic Subsidiary as identified on Schedule 1.01B
hereto.


 


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


 


“Fronting
Fee” has the meaning specified in Section 2.03(g).


 


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


 


“GAAP”
means generally accepted accounting principles in the United States, as in
effect from time to time; provided, however, that if the Borrower
notifies the Administrative Agent that the Borrower requests an amendment to
any provision hereof to eliminate the effect of any change occurring after the
Closing Date in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.


 


“Governmental
Authority” means any nation or government, any state, provincial,
territorial or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, administrative tribunal, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government.


 


“Governmental
Authorization” means any authorization, approval, consent, franchise,
license, covenant, order, ruling, permit, certification, exemption, notice,
declaration or similar right, undertaking or other action of, to or by, or any
filing, qualification or registration with, any Governmental Authority.


 


“Granting
Lender” has the meaning specified in Section 11.07(h).


 


“Guarantee”
has the meaning specified in the definition of “Collateral and Guarantee
Requirement”.


 


“Guarantee
Obligations” means, with respect to any Person, any obligation or
arrangement of such Person to guarantee or intended to guarantee any
Indebtedness or other payment obligations (“primary obligations”) of any
other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including, without limitation, (a) the direct or indirect
guarantee, endorsement (other than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of the Obligation of a primary obligor, (b) the obligation
to make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement other than to
non-affiliated vendors in the ordinary course of business, (c) any
liabilities with recourse to the Parent or its Subsidiaries in such Person’s
capacity as a general partner in any partnership or (d) any Obligation of
such Person, whether or not contingent, (i) to purchase any such 


 


19

















 


primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, assets, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to
assure or hold harmless the holder of such primary obligation against loss in
respect thereof.  The amount of any
Guaranteed Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guaranteed Obligation is made (or, if less, the maximum amount of such primary
obligation for which such Person may be liable pursuant to the terms of the
instrument evidencing such Guaranteed Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder), as determined by such
Person in good faith.


 


“Guarantors”
has the meaning specified in the definition of “Collateral and Guarantee
Requirement.”


 


“Guaranty”
means, collectively, (a) the Guarantee and (b) each other guaranty
and guaranty supplement delivered pursuant to Section 6.11.


 


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


 


“Hedge
Bank” means any Person that is a Lender, a Lead Arranger or an Affiliate of
the foregoing at the time it enters into a Secured Hedge Agreement, in its
capacity as a party thereto.


 


“Honor
Date” has the meaning specified in Section 2.03(c)(i).


 


“Immaterial
Subsidiary” means, at any date of determination, each Subsidiary of the
Borrower that has been designated by the Borrower in writing to the
Administrative Agent as an “Immaterial Subsidiary” for purposes of this
Agreement (and not redesignated as a Material Subsidiary as provided below), provided, that, (a) for purposes of this
Agreement, at no time shall (i) the Total Assets of all Immaterial
Subsidiaries, in the aggregate, at the last day of the most recent Test Period
be equal to or exceed 2.5% of the Total Assets of the Borrower and its
Subsidiaries at such date or (ii) the gross revenues for such Test Period
of all Immaterial Subsidiaries, in the aggregate, equal or exceed 2.5% of the
consolidated gross revenues of the Borrower and its Subsidiaries for such
period, in each case determined in accordance with GAAP, (b) the Borrower
shall not designate any new Immaterial Subsidiary if such designation would not
comply with the provisions set forth in clause (a) above, and (c) if
the Total Assets or gross revenues of all Subsidiaries so designated by the
Borrower as “Immaterial Subsidiaries” (and not redesignated as “Material
Subsidiaries”) shall at any time exceed the limits set forth in clause (a) above,
then all such Subsidiaries shall be deemed to be Material Subsidiaries unless
and until the Borrower shall redesignate one or more Immaterial Subsidiaries as
Material Subsidiaries, in each case in a written notice to the Administrative
Agent, and, as a result thereof, the total assets and gross revenues of all
Subsidiaries still designated as “Immaterial Subsidiaries” do not exceed such
limits.  The Borrower’s Immaterial
Subsidiaries as of the Closing Date are identified on Schedule 1.01C
hereto.


 


“Indebtedness”
of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (excluding trade payables not
overdue by more than 90 days and incurred in the ordinary 


 


20

















 


course of business of such Person’s business), (c) all obligations
of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all obligations of such Person
as lessee under Capitalized Leases that are properly classified as liabilities
on a balance sheet of lessee prepared in accordance with GAAP, (f) all
obligations of such Person under acceptance, letter of credit or similar
facilities, (g) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Equity
Interests in such Person or any other Person or any warrants, rights or options
to acquire such Equity Interests prior to the first anniversary of the Maturity
Date, valued, in the case of redeemable preferred interests, at the greater of
its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends, (h) all obligations of such Person in respect of Swap
Contracts, valued at the Swap Termination Value thereof, (i) all Guarantee
Obligations and Synthetic Debt of such Person, (j) all obligations of such
Person in respect of performance, bid, appeal and surety bonds and performance
and completion guarantees and similar obligations provided by such Person in
respect of letters of credit, bank guarantees or similar instruments related
thereto and (k) all indebtedness and other payment obligations referred to
in clauses (a) through (j) above of another Person
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
indebtedness or other payment obligations, provided that any such
Indebtedness attributable thereto shall be limited to the fair market value of
the property subject to such Lien.


 


“Indemnified
Liabilities” has the meaning specified in Section 11.05.


 


“Indemnitees”
has the meaning specified in Section 11.05.


 


“Information”
has the meaning specified in Section 11.08.


 


“Initial
Credit Extension” means the earlier to occur of the initial Borrowing and
the initial issuance of a Letter of Credit hereunder.


 


“Initial
Financial Statement Delivery Date” shall mean the date on which the
financial statements required to be delivered to the Administrative Agent
pursuant to Section 6.01(b) are delivered to the
Administrative Agent under Section 6.01(b) for the first full
fiscal quarter commencing after the Closing Date.


 


“Intellectual
Property” has the meaning specified in Section 5.16.


 


“Intellectual
Property Security Agreement Supplement” has the meaning specified in the
Security Agreement.


 


“Interest
Coverage Ratio” means, with respect to any Test Period, in each case for
the Parent and its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated
Adjusted EBITDA for such period to (b) Consolidated Interest Expense for
such Test Period.


 


“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 Maturity
Date of the Facility under which such Loan was made; provided, that, if
any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any
Base Rate Loan, the last Business Day of each 


 


21

















 


March, June, September and December and the Maturity Date of
the Facility under which such Loan was made.


 


“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 or three months and such
other shorter interest period as may be permitted by the Lenders and the
Administrative Agent, in each case as set forth by the Borrower in its Loan
Notice; provided, that:


 


(a)           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;


 


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


 


(c)           no Interest Period shall extend
beyond the Maturity Date.


 


“Investment”
means, with respect to any Person, any loan or advance to such Person, any
purchase or other acquisition of any Equity Interests or Indebtedness or the
assets comprising a division or business unit or a substantial part or all of
the business of such Person, any capital contribution to such Person or any
other direct or indirect investment in such Person, including, without limitation,
any acquisition by way of a merger or consolidation (or similar transaction)
and any arrangement pursuant to which the investor incurs Indebtedness of the
types referred to in clause (i) or (j) of the
definition of “Indebtedness” in respect of such Person.  For purposes of covenant compliance, the
amount of any Investments at any time shall be the amount actually invested
(measured at the time made), without adjustment for subsequent changes in the
value of such Investments, net of any cash returns of principal or capital
thereon (including any dividend, redemption or repurchase of equity that is
accounted for, in accordance with GAAP, as a return of principal or capital) in
respect of such Investment.


 


“Judgment
Currency” has the meaning specified in Section 11.17.


 


“Laws”
means, collectively, all international, foreign, federal, state, provincial 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.


 


“L/C
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro  Rata
Share.


 


“L/C
Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the applicable Honor Date or
refinanced as a 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 renewal or increase of
the amount thereof.


 


22
















 


“L/C
Exposure” means, with respect to any Lender at any time, its Pro  Rata
Share of the L/C Obligation at such time.


 


“L/C
Issuer” means (i) Royal Bank or any of its Subsidiaries or affiliates,
and (ii) any other Lender (or any of its Subsidiaries or affiliates) that
becomes an L/C Issuer in accordance with Section 2.03(i) or Section 11.07(i);
in the case of each of clause (i) or (ii) above,
in its capacity as an issuer of Letters of Credit hereunder, or any successor
issuer of Letters of Credit hereunder.


 


“L/C
Obligation” means, as at any date of determination, the aggregate maximum
amount then available to be drawn under all outstanding Letters of Credit plus
the aggregate of all Unreimbursed Amounts in respect of Letters of Credit,
including all L/C Borrowings.


 


“Lead
Arranger” means RBC Capital Markets in its capacity as a Lead Arranger
under this Agreement.


 


“Lender”
means any Revolving Credit Lender that may be a party to this Agreement from
time to time and includes an L/C Issuer, and their respective successors and
assigns as permitted hereunder, each of which is referred to herein as a “Lender”.


 


“Letter
of Credit” means any letter of credit issued hereunder.  A Letter of Credit may be a commercial letter
of credit or a standby letter 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
relevant L/C Issuer.


 


“Letter
of Credit Commitment means, with respect to any L/C Issuer, the amount set
forth opposite such L/C Issuer’s name on Schedule 2.01 hereto under the
caption “Letter of Credit Commitment” or, if an L/C Issuer has entered into an
Assignment and Assumption, set forth for such L/C Issuer in the Register
maintained by the Administrative Agent pursuant to Section 11.07(d) as
the L/C Issuers’ “Letter of Credit Commitment” as such amount may be reduced at
or prior to such time pursuant to Section 2.05.  The total amount of the Letter of Credit
Commitment shall not exceed the Letter of Credit Sublimit at any time.


 


“Letter
of Credit Expiration Date” means the day that is five (5) Business
Days prior to the scheduled Maturity Date then in effect for the Revolving
Credit Facility (or, if such day is not a Business Day, the next preceding
Business Day).


 


“Letter
of Credit Facility” means the revolving credit facility made available by
the L/C Issuer pursuant to Section 2.03.


 


“Letter
of Credit Sublimit” means an amount equal to the lesser of (a) $20,000,000
and (b) the aggregate available amount of the Revolving Credit Commitments
at such time.  The Letter of Credit
Sublimit is part of, and not in addition to, the Revolving Credit Commitments.


 


“Libor
Floor” has the definition set forth in the definition of Eurodollar Rate.


 


“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, deemed trust, or preference,
priority or other security interest or preferential arrangement 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 Capitalized Lease having substantially the same economic
effect as any of the foregoing).


 


23

















 


“Loan”
means an extension of credit by a Lender to the Borrower under Article II
in the form of a Revolving Credit Loan.


 


“Loan
Documents” means, collectively, (i) this Agreement, (ii) the
Notes, (iii) the Collateral Documents, (iv) each Letter of Credit
Application, (v) the Perfection Certificates, (vi) the Fee Letter and
(vii) each Secured Hedge Agreement, in each case as amended, amended and
restated, supplemented, modified, extended, renewed, refinanced or replaced
from time to time.


 


“Loan
Notice” means a notice of a Borrowing, pursuant to Section 2.02(a),
which shall be substantially in the form of Exhibit A.


 


“Loan
Parties” means, collectively, (i) the Borrower and (ii) the
Guarantors.


 


“Maintenance
Capital Expenditures” means, for any Person, Capital Expenditures of such
Person made to maintain, operate and preserve in good repair, working order and
condition such Person’s equipment, fixed assets, real property or improvements,
in accordance with industry practice, Contractual Obligations and requirements
of Law.


 


“Master
Agreement” has the meaning specified in the definition of “Swap Contract”.


 


“Material
Adverse Effect” means (a) a material adverse effect on the business,
operations, condition (financial or otherwise), performance, or properties of
the Parent and its Subsidiaries, taken as a whole, (b) a material adverse
effect on the ability of the Loan Parties (taken as a whole) to perform their
respective payment obligations under any Loan Document to which any of the Loan
Parties is a party or (c) a material adverse effect on the rights and
remedies of the Lenders or the Agents under any Loan Document.


 


“Material
Contract” means, with respect to any Person, each contract to which such
Person is a party involving the aggregate consideration payable to or by such
Person of $5,000,000 or more in any Fiscal Year or otherwise material to the
business, condition (financial or otherwise), operations, performance, or
properties of such Person and its Subsidiaries, taken as a whole.


 


“Material
Subsidiary” means, at any date of determination, each Subsidiary of the
Borrower that is not an Immaterial Subsidiary (but including, in any case, any
Subsidiary that has been designated as a Material Subsidiary as provided in, or
has been designated as an Immaterial Subsidiary in a manner that does not
comply with, the definition of “Immaterial Subsidiary”).


 


“Maturity
Date” means the third anniversary of the Closing Date; provided, that, if any such day is not a Business Day, the
Maturity Date shall be the Business Day immediately preceding such day.


 


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


 


“Mortgage”
means collectively, the deeds of trust, trust deeds, deeds of hypothec and
mortgages creating and evidencing a Lien on a Mortgaged Property made by the
Loan Parties in favor or for the benefit of the Collateral Trustee on behalf of
the Secured Parties in form and substance reasonably satisfactory to the
Collateral Trustee, executed and delivered pursuant to Section 4.01(a)(iii) (if
applicable), Section 6.11 and Section 6.13.


 


“Mortgage
Policies” has the meaning specified in paragraph (h)(ii) of
the definition of “Collateral and Guarantee Requirement”.


 


24

















 


“Mortgaged
Properties” has the meaning specified in paragraph (h) of
the definition of “Collateral and Guarantee Requirement”.


 


“Multiemployer
Plan means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.


 


“Net
Cash Proceeds” means:


 


(a)           with respect to the Disposition of
any asset by any Loan Party or any Subsidiary not permitted under clauses (a),
(b), (c), (d), (e), (f), (g), (h),
(i), (j) and (k) of Section 7.05 or
any Casualty Event, the excess, if any, of (i) the sum of cash and Cash
Equivalents received in connection with such Disposition or Casualty Event
(including any cash or Cash Equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received and, with respect to any Casualty Event, any insurance proceeds
or condemnation awards in respect of such Casualty Event actually received by
or paid to or for the account of any Loan Party or any Subsidiary) over (ii) the
sum of (A) the principal amount, premium or penalty, if any, interest and
other amounts on any Indebtedness that is secured by the asset subject to such
Disposition or Casualty Event and that is required to be repaid (and is timely
repaid) in connection with such Disposition or Casualty Event (other than
Indebtedness under the Loan Documents), (B) the reasonable out-of-pocket
fees and expenses actually incurred by the Loan Party or such Subsidiary in
connection with such Disposition or Casualty Event (including, without
limitation, reasonable attorney’s fees, consultant, brokerage and closing costs
incurred in connection with such transaction), (C) taxes paid or
reasonably estimated to be actually payable or that are actually accrued in
connection therewith within the current tax year as a result of any gain
recognized in connection therewith, and (D) a reasonable reserve (which
reserve shall be deposited into a segregated deposit account in which the
Collateral Trustee has a perfected, first priority security interest) for (i) any
purchase price adjustment or (ii) any liabilities associated with such
asset or assets and retained by the Loan Party or any Subsidiary after such
sale or other Disposition thereof, including pension and other post-employment
benefit liabilities and liabilities related to environmental matters or any
indemnification payments (fixed and contingent) attributable to the seller’s
obligations to the purchaser undertaken by the Loan Party or any Subsidiary in
connection with such sale, lease, transfer or other disposition (but excluding
any purchase price adjustment or any indemnity that, by its terms, will not
under any circumstances be made prior to the Maturity Date); provided,
that, no proceeds of Dispositions of assets realized in any Fiscal Year shall
be deemed to be Net Cash Proceeds hereunder until such proceeds exceed $500,000
in the aggregate for such Fiscal Year (and thereafter only net cash proceeds in
excess of such amount shall constitute Net Cash Proceeds);


 


(b)           with respect to the incurrence or
issuance of any Indebtedness by any Loan Party or any Subsidiary not permitted
under Section 7.03, the excess, if any, of (i) the sum of the
cash received in connection with such incurrence or issuance over (ii) the
investment banking fees, underwriting discounts, commissions, security filing
registration or filing fees, costs and other out-of-pocket expenses and other
customary expenses, incurred by the Loan Party or such Subsidiary in connection
with such incurrence or issuance;


 


(c)           with respect to the sale or issuance
of any Equity Interests by any Loan Party or Subsidiary (including, without
limitation, the receipt of any capital contributions), the excess of (i) the
sum of the cash and Cash Equivalents received in connection with such sale or
issuance 


 


25

















 


over (ii) the underwriting discounts and commissions or similar
payments, and other out-of-pocket costs, fees, commissions, premiums and
expenses, incurred by such Loan Party or Subsidiary in connection with such
sale or issuance (including, without limitation, reasonable attorney’s fees,
consultant, brokerage and closing costs incurred in connection with such
transaction) to the extent such amounts were not deducted in determining the
amount referred to in clause (i); provided, however,
that Net Cash Proceeds shall not include any funds received in connection with
the exercise of stock options granted to employees or directors of the Borrower
or any of its Subsidiaries; and


 


(d)           with respect to any Extraordinary
Receipt that is not otherwise included in clauses (a), (b) or (c) above,
the sum of the cash and Cash Equivalents received in connection therewith.


 


“Net
Income” means, with respect to any Person, the net income (loss) of such
Person, determined in accordance with GAAP.


 


“Net
Investment in Non-Loan Parties” means, as of any date a determination
thereof is to be made, the difference between (i) the sum of the aggregate
amount of all Restricted Payments and Investments made by the Non-Loan Parties
in or to any of the Loan Parties, minus (ii) the sum of the aggregate amount
of Restricted Payments and Investments made by the Loan Parties in or to any of
the Non-Loan Parties, in each case determined on a cash basis consistent with
past practice for the trailing, twelve month period ending on the last day of
the most recent fiscal quarter for which Section 6.01 Financials have been
delivered to the Administrative Agent.


 


“Non-Consenting
Lender” has the meaning specified in Section 3.07(d).


 


“Non-Loan
Party” means any Subsidiary of the Parent that is not a Loan Party.


 


“Nonrenewal
Notice Date” has the meaning specified in Section 2.03(b)(iii).


 


“Note”
means a promissory note of the Borrower payable to any Lender or its assigns,
in substantially the form of Exhibit C hereto, evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from the Loans
made by such Lender.


 


“NPL”
means the National Priorities List under CERCLA.


 


“Obligations”
means all (x) advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party or other Subsidiary 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), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against
any Loan Party or any other Subsidiary 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, (y) obligations
of any Loan Party or any other Subsidiary arising under any Secured Hedge
Agreement, and (z) Cash Management Obligations (as amended, amended and
restated, supplemented, modified, extended, renewed, refinanced or replaced
from time to time). Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents (and of any of their
Subsidiaries to the extent they have obligations under the Loan Documents)
include (a) the obligation (including guarantee obligations) to pay
principal, interest, Letter of Credit commissions, reimbursement obligations,
charges, expenses, fees, Attorney Costs, indemnities and other amounts payable
by any Loan Party or any other Subsidiary under any Loan Document and (b) the
obligation of any Loan Party or any other Subsidiary to 


 


26

















 


reimburse any amount in respect of any of the foregoing that any
Lender, in its sole discretion, may elect to pay or advance on behalf of such
Loan Party or such Subsidiary.


 


“Organization
Documents” means (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws; (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, declaration, 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.


 


“Other
Taxes” has the meaning specified in Section 3.01(b).


 


“Outstanding
Amount” means (a) with respect to the Revolving Credit Loans on any
date, the outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Revolving Credit Loans (including
any refinancing of outstanding Unreimbursed Amounts under Letters of Credit or
L/C Credit Extensions as a Borrowing) occurring on such date; and (b) with
respect to any L/C Obligations on any date, the outstanding amount thereof on
such date after giving effect to any related L/C Credit Extension occurring on
such date and any other changes thereto as of such date, including as a result
of any reimbursements of outstanding Unreimbursed Amounts under related Letters
of Credit (including any refinancing of outstanding Unreimbursed Amounts under
related Letters of Credit or related L/C Credit Extensions as a Borrowing) or
any reductions in the maximum amount available for drawing under related
Letters of Credit taking effect on such date.


 


“Parent”
has the meaning specified in the introductory paragraph to this Agreement.


 


“Participant”
has the meaning specified in Section 11.07(e).


 


“Participant
Register” has the meaning specified in Section 11.07(e).


 


“PBGC”
means the Pension Benefit Guaranty Corporation (or any successor thereof).


 


“Pension
Act” means the Pension Protection Act of 2006, as amended.


 


“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 any Loan
Party or any ERISA Affiliate or to which any Loan Party 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 since January 1, 2003.


 


“Perfection
Certificate” means with respect to any Loan Party, a certificate
substantially in the form of Exhibit J hereto, completed and
supplemented with the schedules and attachments contemplated thereby to the
satisfaction of the Collateral Agent and duly executed by a Responsible Officer
of such Loan Party.


 


“Permitted
Acquisition” has the meaning specified in Section 7.02(j).


 


“Permitted
Refinancing” means, with respect to any Person, any modification (other
than a release of such Person), refinancing, refunding, renewal or extension of
any Indebtedness of such 


 


27

















 


Person; provided, that, (a) the principal amount (or
accreted value, if applicable) thereof does not exceed an amount equal to the
principal amount (or accreted value, if applicable) of the Indebtedness so
modified, refinanced, refunded, renewed or extended and as otherwise permitted
under Section 7.03 (plus the amount of any reasonable fees,
commissions, discounts and other costs and expenses associated with such
refinancing, and any prepayment penalties or related costs), (b) other
than with respect to a Permitted Refinancing in respect of Indebtedness
permitted pursuant to Section 7.03(e), such modification,
refinancing, refunding, renewal or extension has a final maturity date equal to
or later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being modified, refinanced, refunded, renewed or extended, (c) other
than with respect to a Permitted Refinancing in respect of Indebtedness
permitted pursuant to Section 7.03(e), at the time thereof, no
Event of Default shall have occurred and be continuing, (d) to the extent
such Indebtedness being so modified, refinanced, refunded, renewed or extended
is subordinated in right of payment to the Obligations, such modification,
refinancing, refunding, renewal or extension is subordinated in right of
payment to the Obligations on terms no less favorable in any material respect
to the Lenders as those contained in the documentation governing the
Indebtedness being so modified, refinanced, refunded, renewed or extended, (e) if
such modification, refinancing, refunding, renewal or extension relates to
secured Indebtedness, such Indebtedness shall be secured on terms no less
favorable to the Secured Parties than those contained in the documentation
governing the Indebtedness being so refinanced, refunded, renewed or extended
and (f) such modification, refinancing, refunding, renewal or extension is
incurred (1) by the Person who is the obligor of the Indebtedness being so
modified, refinanced, refunded, renewed or extended or (2) by a Loan Party
who is not a Subsidiary of the original obligor.


 


“Permitted
Sale Leaseback” means any Sale Leaseback consummated by any Loan Party or
any Subsidiary after the Closing Date; provided, that, any such Sale
Leaseback not between a Loan Party and another Loan Party shall be consummated
for fair value as determined at the time of consummation in good faith by the
Borrower or such Subsidiary.


 


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


 


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


 


“Pledge
and Security Agreement” means, collectively, (a) the Pledge and
Security Agreement executed by certain Loan Parties substantially in the form
of Exhibit G-1 and (b) each Intellectual Property Security
Agreement executed and delivered pursuant to Section 6.11.


 


“Prepayment
Notice” means a notice of prepayment in respect of any voluntary or
mandatory prepayment in substantially the form of Exhibit B.


 


“Prime
Rate” means the rate of interest per annum announced by Royal Bank from
time to time as its prime commercial lending rate for United States Dollar
loans in the United States for such day. The Prime Rate is not necessarily the
lowest rate that Royal Bank is charging any corporate customer.


 


“Principals”
means Avista Capital Partners, L.P. and its Affiliates, Maple Leaf Partners,
L.P. and its Affiliates, Kestrel Capital, L.P., Petroleum Geo-Services ASA and
its Affiliates and Somerset Capital Partners, Steven A. Webster and William R.
Ziegler.


 


28

















 


“Pro
Forma Adjustment” means, for any Test Period in which a Permitted
Acquisition or Disposition has occurred, with respect to Consolidated Adjusted
EBITDA, the pro  forma increase or decrease in Consolidated
Adjusted EBITDA associated with Acquired EBITDA or Disposed EBITDA, as the case
may be, which pro  forma increase or decrease are factually
supportable and are expected to have a continuing impact, in each case, as
determined on a basis consistent with Article 11 of Regulation S-X of
the Securities Act, and subject to the Administrative Agent’s reasonable
satisfaction that such adjustments comply with the requirements of regulation
S-X.


 


“Pro
Forma Balance Sheet” has the meaning specified in Section 5.05(a)(ii).


 


“Pro
Forma Basis” and “Pro Forma Effect” mean, with respect to compliance
with any test hereunder for an applicable period of measurement, that (A) to
the extent applicable, the Pro  Forma Adjustment shall have been
made and (B) all Specified Transactions and the following transactions in
connection therewith shall be deemed to have occurred as of the first day of the
applicable period of measurement (as of the last date in the case of a balance
sheet item) in such test:  (a) income
statement items (whether positive or negative) attributable to the
property or Person subject to such Specified Transaction, (i) in the case
of a Disposition of all or substantially all Equity Interests in any Subsidiary
of the Borrower or any division, product line, or facility used for operations
of the Borrower or any of its Subsidiaries, shall be excluded, and (ii) in
the case of a Permitted Acquisition or Investment described in the definition
of “Specified Transaction”, shall be included, (b) any retirement of
Indebtedness, and (c) any Indebtedness incurred or assumed by the Borrower
or any of its Subsidiaries in connection therewith and if such Indebtedness has
a floating or formula rate, shall have an implied rate of interest for the
applicable period for purposes of this definition determined by utilizing the
rate which is or would be in effect with respect to such Indebtedness as at the
relevant date of determination; provided, that, without limiting the
application of the Pro  Forma Adjustment pursuant to clause (A) above,
the foregoing pro  forma adjustments may be applied to any such
test solely to the extent that such adjustments are consistent with the
definition of Consolidated Adjusted EBITDA and give effect to events (including
operating expense reductions) that are (as determined by the Borrower in good
faith) (i) (x) directly attributable to such transaction, (y) expected
to have a continuing impact on the Borrower and its Subsidiaries and (z) factually
supportable or (ii) otherwise consistent with the definition of Pro
Forma Adjustment.


 


“Pro
Forma Financial Statements” has the meaning specified in Section 5.05(a)(ii).


 


“Pro
Rata Share” means, with respect to each Lender at any time a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the Revolving Credit Commitment of such
Lender at such time and the denominator of which is the amount of the Aggregate
Commitments at such time; provided, that, if such Revolving Credit
Commitments have been terminated, then the Pro  Rata Share of each
Lender shall be determined based on the Pro  Rata Share of such
Lender immediately prior to such termination and after giving effect to any
subsequent assignments made pursuant to the terms hereof.


 


“Public
Lender” has the meaning specified in Section 11.02(h).


 


“Qualified
Equity Interests” means any Equity Interests that are not Disqualified
Equity Interests.


 


“Register”
has the meaning specified in Section 11.07(d).


 


29

















 


“Registered”
means, with respect to Intellectual Property, issued by, registered with,
renewed by or the subject of a pending application before any Governmental
Authority or Internet domain name registrar.


 


“Reportable
Event” means with respect to any Plan any of the events set forth in Section 4043(c) of
ERISA or the regulations issued thereunder, other than events for which the
thirty (30) day notice period has been waived.


 


“Request
for Credit Extension” means (a) with respect to a Borrowing,
conversion or continuation of Revolving Credit Loans, a Loan Notice and (b) with
respect to an L/C Credit Extension, a Letter of Credit Application.


 


“Required
Lenders” means, as of any date of determination, Lenders having more than
50% of the Total Facility Exposure; provided, that, the unused Revolving
Credit 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, vice president,
chief financial officer, treasurer or assistant treasurer, controller, or other
similar officer or a Person performing similar functions of a Loan Party and,
as to any document delivered on the Closing Date, any secretary or assistant
secretary 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.


 


“Restricting
Information” has the meaning assigned to such term in Section 11.02(i).


 


“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interest in the Parent
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, defeasance, acquisition, cancellation or
termination of any such Equity Interest, or on account of any return of capital
to the holders of Equity Interests of the Parent or such Subsidiary.


 


“Revolving
Credit Commitment” means, as to each Lender, its obligation to make
Revolving Credit Loans to the Borrower pursuant to Section 2.01 or Section 2.03
as applicable, and (b) purchase participations in respect of Letters of
Credit, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth, and opposite such Lender’s name on Schedule
2.01 under the caption “Revolving Credit Commitment” or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.  The aggregate Revolving
Credit Commitments of all Lenders shall be $50,000,000 on the Closing Date, as
such amount may be adjusted from time to time in accordance with the terms of
this Agreement.


 


“Revolving
Credit Exposure” means, as to each Lender at any time, the sum of (a) the
outstanding principal amount of all Revolving Credit Loans held by such Lender
(or its Applicable Lending Office) and (b) such Lender’s L/C Exposure.


 


“Revolving
Credit Facility” has the meaning specified in the preliminary statements to
this Agreement.


 


30

















 


“Revolving
Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment or that holds Revolving Credit Loans at such time.


 


“Revolving
Credit Loan” has the meaning specified in Section 2.01.


 


“Royal
Bank” means Royal Bank of Canada in its individual capacity, and any
successor corporation thereto by merger, consolidation or otherwise.


 


“Sale
Leaseback” means any transaction or series of related transactions pursuant
to which any Loan Party or Subsidiary (a) sells, transfers or otherwise
disposes of any property, real or personal, whether now owned or hereafter
acquired, and (b) as part of such transaction, thereafter rents or leases
such property or other property that it intends to use for substantially the
same purpose or purposes as the property being sold, transferred or disposed.


 


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


 


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


 


“Section 6.01
Financials” shall mean the financial statements delivered, or required to
be delivered, pursuant to Section 6.01(a) or 6.01(b) together
with the accompanying officer’s certificate delivered, or required to be
delivered, pursuant to Section 6.02(a).


 


“Secured
Hedge Agreement” means any Swap Contract permitted under Section 7.03(f) that
is entered into by and between any Loan Party or any Subsidiary and any Hedge
Bank.


 


“Secured
Parties” means, collectively, the Administrative Agent, the Collateral
Agent, the Collateral Trustee, the Lenders, the Cash Management Banks, the
Hedge Banks, the Supplemental Administrative Agent and each co-agent or
sub-agent appointed by the Administrative Agent from time to time pursuant to Section 10.13(a).


 


“Securities
Act” means the Securities Act of 1933.


 


“Senior
Indenture” means the Indenture dated as of December 23, 2009 by and
among the Company, the Parent and US Bank National Association, as Trustee
pursuant to which the Senior Notes have been issued.


 


“Senior
Notes Documents” means the Senior Indenture, the Senior Notes, the Security
Documents (as defined in the Senior Indenture) and any related document.


 


“Senior
Notes” the $300,000,000 9.75% Senior Notes due 2014, issued by the Company
pursuant to the Senior Notes Documents.


 


“Shareholders’
Equity” means, as of any date of determination, consolidated shareholders’
equity of the Parent and its Subsidiaries as of that date determined in
accordance with GAAP.


 


“Sold
Entity or Business” means any Person, property, business or asset sold,
transferred or otherwise disposed of, closed or classified as discontinued
operations by the Parent or any Subsidiary.


 


31

















 


“Solvent”
and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (i) the fair value of the property (for
the avoidance of doubt, calculated to include goodwill and other intangibles)
of such Person is greater than the total amount of liabilities, including
contingent liabilities, of such Person, (ii) 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, (iii) 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 and (iv) 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; 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.


 


“SPC”
has the meaning specified in Section 11.07(h).


 


“Specified
Remediation Plan” has the meaning set forth in Section 6.04(b).


 


“Specified
Sites” has the meaning set forth in Section 6.04(b).


 


“Specified
Transaction” means any Investment, Disposition, incurrence or repayment of
Indebtedness, Restricted Payment, Subsidiary designation that by the terms of
this Agreement requires any of the financial ratios described in Sections
7.13 and 7.15 be calculated on a “Pro  Forma Basis” or
after giving “Pro  Forma Effect”.


 


“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 Parent.


 


“Supplemental
Administrative Agent” has the meaning specified in Section 10.13(a) and
“Supplemental Administrative Agents” shall have the corresponding meaning.


 


“Swap
Contract” means (a) any and all interest 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, 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 


 


32

















 


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 reasonably
determined by the Hedge Bank in accordance with the terms thereof and in
accordance with customary methods for calculating mark-to-market values under
similar arrangements by the Hedge Bank.


 


“Synthetic
Debt” means, with respect to any Person, without duplication of any clause
within the definition of “Indebtedness,” all (a) obligations of such Person
under any lease that is treated as an operating lease for financial accounting
purposes and a financing lease for tax purposes (i.e., a “synthetic lease”), (b) obligations
of such Person in respect of transactions entered into by such Person, the
proceeds from which would be reflected on the financial statements of such
Person in accordance with GAAP as cash flows from financings at the time such
transaction was entered into (other than as a result of the issuance of Equity
Interests) and (c) obligations of such Person in respect of other
transactions entered into by such Person that are not otherwise addressed in
the definition of “Indebtedness” or in clause (a) or (b) above
that are intended to function primarily as a borrowing of funds (including, without
limitation, any minority interest transactions that function primarily as a
borrowing).


 


“Taxes”
has the meaning specified in Section 3.01(a).


 


“Test
Period” means, at any date of determination, the most recently completed
four consecutive fiscal quarters of the Parent ending on or prior to such date;
provided, that, for purposes of determining Consolidated Interest
Expense for the first three fiscal quarters ending after the Closing Date, (i) in
the case of the first fiscal quarter ending after the Closing Date, “Test
Period” shall refer to Consolidated Interest Expense for such fiscal quarter multiplied
by four, (ii) in the case of the second fiscal quarter ending after the
Closing Date, “Test Period” shall refer to Consolidated Interest Expense for the
two most recently ended fiscal quarters multiplied by two and (iii) in
the case of the third fiscal quarter ending after the Closing Date, “Test
Period” shall refer to Consolidated Interest Expense for the three most
recently ended fiscal quarters multiplied by 4/3.


 


“Threshold
Amount” means $7,500,000.


 


“Total
Assets” means the total assets of the Parent and its Subsidiaries on a
consolidated basis, as shown on the most recent balance sheet of the Parent
delivered pursuant to Section 6.01(a) or (b) or, for
the period prior to the time any such statements are so delivered pursuant to Section 6.01(a) or
(b), the pro forma financial statements of the Parent giving effect to
the Transaction.


 


“Total
Facility Exposure” means the sum of (a) Total Outstandings (with the
aggregate outstanding amount of each Lender’s risk participation and funded
participation in L/C Obligations being deemed “held” by such Lender for
purposes of this definition) and (b) aggregate unused Revolving Credit
Commitments.


 


“Total
Leverage Ratio” means, with respect to any Test Period, in each case for
the Parent and its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated
Total Debt as of the last day of such Test Period to (b) Consolidated
Adjusted EBITDA of the Parent (after giving effect to any Pro  Forma
Adjustments) for such Test Period.


 


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


 


33

















 


“Trademark
Security Agreement” means the Trademark Security Agreement executed by
certain Loan Parties substantially in the form of Exhibit G-3.


 


“Transaction”
means, collectively, (a) the Acquisition, (b) the entering into by
the Loan Parties of the Loan Documents on the Closing Date, (c) the
receipt of the gross proceeds by the Borrower from the issuance of the Senior
Notes on the Closing Date, (d) the consummation of any other transactions
in connection with the foregoing, and (e) the payment of the fees and
expenses incurred in connection with any of the foregoing.


 


“Transaction
Expenses” means any fees or expenses incurred or paid by the Parent, the
Company, or any Subsidiary in connection with the Transaction, this Agreement
and the other Loan Documents and the transactions contemplated hereby and
thereby.


 


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


 


“Unaudited
Financial Statements” means the unaudited consolidated balance sheets and
related statements of income, changes in equity and cash flows of the Parent,
for each fiscal quarter after December 31, 2008 ended at least forty-five
(45) days before the Closing Date, previously delivered to the Administrative
Agent.


 


“Uniform
Commercial Code” means the Uniform Commercial Code as the same may from
time to time be in effect in the State of New York or the Uniform Commercial
Code (or similar code or statute) of another jurisdiction, to the extent it may
be required to apply to any security interest in any item or items of
Collateral.


 


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


 


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


 


“Unused
Revolving Credit Commitment” means the actual daily amount by which the
aggregate Revolving Credit Commitment exceeds the sum of (i) the
Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding
Amount of L/C Obligations.


 


“USA
PATRIOT Act” means The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(Title III of Pub. L. No. 107-56 (signed into law October 26,
2001)), as amended or modified from time to time.


 


“Usage”
means at any time a fraction (expressed as percentage, carried out to the first
decimal place), the numerator of which is the sum of (i) the Outstanding
Amount of Revolving Credit Loans and (ii) the Outstanding Amount of L/C
Obligations and the denominator of which is the amount of the Aggregate
Commitments at such time.


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing: 
(i) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment
by (ii) the then outstanding principal amount of such Indebtedness.


 


34
















 


“Wholly-owned” means,
with respect to a Subsidiary of a Person, a Subsidiary of such Person all of
the outstanding Equity Interests of which (other than (x) director’s
qualifying shares and (y) shares issued to foreign nationals to the extent
required by applicable Law) are owned by such Person and/or by one or more
wholly-owned Subsidiaries of such Person.


 


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


 


Section 1.02           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 meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.


 


(b)           (i)  The words “herein”, “hereto”,
“hereof” and “hereunder” and words of similar import when used in any Loan
Document shall refer to such Loan Document as a whole and not to any particular
provision thereof.


 


(ii)           Article, Section, Exhibit and
Schedule references are to the Loan Document in which such reference
appears.


 


(iii)          The term “including” is by
way of example and not limitation.


 


(iv)          The term “documents”
includes any and all instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however evidenced, whether in
physical or electronic form.


 


(c)           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”.


 


(d)           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.


 


Section 1.03           Accounting Terms.  (a)  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 in a manner consistent with that
used in preparing the Audited Financial Statements, except as otherwise
specifically prescribed herein.


 


(b)           Notwithstanding anything to
the contrary herein, for purposes of determining compliance with any test
contained in this Agreement with respect to any period during which any
Specified Transaction occurs, the Total Leverage Ratio, Fixed Charge Coverage
Ratio and Interest Coverage Ratio shall be calculated with respect to such
period and such Specified Transaction on a Pro  Forma Basis.


 


(c)           Where reference is made to “the
Parent and its Subsidiaries on a consolidated basis” or similar language, such
consolidation shall not include any subsidiaries of the Parent other than
Subsidiaries.


 


35

















 


Section 1.04           Rounding.  Any financial ratios required to be satisfied
in order for a specific action to be permitted under 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).


 


Section 1.05           References to Agreements,
Laws, Etc.  Unless
otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are permitted by any Loan Document; and (b) references to
any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.


 


Section 1.06           Times of Day.  Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).


 


Section 1.07           Timing of Payment or
Performance.  When the
payment of any obligation or the performance of any covenant, duty or
obligation is stated to be due or performance required on a day which is not a
Business Day, the date of such payment (other than as described in the
definition of Interest Period) or performance shall extend to the immediately
succeeding Business Day.


 


Section 1.08           Currency Equivalents
Generally.  (a) 
Any amount specified in this Agreement (other than in Article II
and Article XI or as set forth in paragraph (b) of
this Section) or any of the other Loan Documents to be in Dollars shall also
include the equivalent of such amount in any currency other than Dollars, such
equivalent amount be determined in a manner consistent with the definition of
Exchange Rate.


 


(b)           For purposes of determining
compliance under Sections 7.02, 7.05  and 7.06, any amount in a currency
other than Dollars will be converted to Dollars in a manner consistent with
that used in calculating net income in the Borrower’s annual financial
statements delivered pursuant to Section 6.01(a); provided, however,
that the foregoing shall not be deemed to apply to the determination of any
amount of Indebtedness.


 


ARTICLE
II


 


THE
COMMITMENTS AND CREDIT EXTENSIONS


 


Section 2.01           The Loans.            Subject to the terms and
conditions set forth herein each Lender severally agrees to make (or cause its
Applicable Lending Office to make) loans 
(each such loan, a “Revolving Credit Loan”) from time to time, on
any Business Day after the Closing Date until the Maturity Date with respect to
the Revolving Credit Facility, in an aggregate principal amount not to exceed
at any time outstanding the amount of such Lender’s Revolving Credit
Commitment; provided, that, after giving effect to any such Borrowing, (x) the
Outstanding Amounts under the Revolving Credit Facility shall not exceed the
Revolving Credit Facility and (y) the Revolving Credit Exposure of any
Lender shall not exceed such Lender’s Revolving Credit Commitment in effect at
such time.  Within the limits of each
Lender’s Revolving Credit Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01,
prepay under Section 2.05, and reborrow under this Section 2.01.  Revolving Credit Loans may be Base Rate Loans
or Eurodollar Rate Loans, as further provided herein.


 


36

















 


Section 2.02           Borrowings, Conversions and
Continuations of Loans.  (a) 
Each Borrowing, each conversion of Revolving Credit 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 of such Borrowing, conversion or continuation of
Eurodollar Rate Loans, which may be given by telephone.  Each such notice must be received by the
Administrative Agent not later than 12:00 noon (New York, New York time) (i) three
(3) Business Days prior to the requested date of any Borrowing or
continuation or conversion of Eurodollar Rate Loans (or any conversion of Base
Rate Loans to Eurodollar Rate Loans) and (ii) one (1) Business Day
before the requested date of any Borrowing of Base Rate Loans or any
continuation or conversion of Eurodollar Rate Loans to Base Rate 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 Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower.  Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Section 2.03(c),
each Borrowing of, continuation of or conversion to Base Rate Loans, shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof.  Each Loan Notice shall specify,
as applicable, (i) whether the Borrower is requesting a Borrowing or a
conversion or continuation of Loans from one Type to the other, (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 Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed
and (v) if applicable, the duration of the Interest Period with respect
thereto.  If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Loan Notice, but fails to specify an Interest Period, it will be deemed to
have specified an Interest Period of one (1) month.  For the avoidance of doubt, the Borrower and
Lenders acknowledge and agree that any conversion or continuation of an
existing Loan shall be deemed to be a continuation of that Loan with a
converted interest rate methodology and not a new Loan.


 


(b)           Following receipt of a Loan
Notice, the Administrative Agent shall promptly notify each Lender of the
amount of its Pro  Rata Share of the applicable 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 or continuation described in Section 2.02(a).  In the case of each Borrowing, each
Appropriate Lender shall make (or cause its Applicable Lending Office to make)
the amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent’s Office not later than 1:00 p.m.
on the Business Day specified in the applicable 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 the Administrative Agent 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, that, if, on the date the Loan Notice
with respect to such Borrowing is given by the Borrower, there are L/C
Borrowings outstanding, then the proceeds of such Borrowing shall be applied,
first, to the payment in full of any such L/C Borrowings, and second, 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 unless the Borrower
pays the amount due, if any, under Section 3.05 in connection
therewith.  During the existence of an
Event of Default, the Administrative Agent or the Required Lenders may require
that no Loans may be converted to or continued as Eurodollar Rate Loans.


 


(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 


 


37

















 


interest rate.  The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest error.


 


(e)           Anything in Subsection (a) to
(d) above to the contrary notwithstanding, (i) the Borrower
may not select Eurodollar Rate Loans for the first 30 days following the
Closing Date (or until such earlier date as shall be specified in its sole
discretion by the Administrative Agent in a written notice to the Borrower and
the Lenders), and (ii) after giving effect to all Borrowings, all
conversions of Loans from one Type to the other, and all continuations of Loans
as the same Type there shall not be more than five (5) Interest Periods in
effect for all Borrowings unless otherwise agreed between the Borrower and the
Administrative Agent.


 


(f)            The failure of any Lender to
make the Loan to be made by it as part of any Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Loan on the date
of such Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender on the date of
any Borrowing.


 


Section 2.03           Letters of Credit.  (a)  The Letter of Credit Commitments.


 


(i)            Subject to the terms and
conditions set forth herein, (1) each L/C Issuer agrees, in reliance upon
the agreements of the other Lenders set forth in this Section 2.03,
(x) from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Expiration Date, to issue Letters of
Credit denominated in Dollars for the account of the Borrower (provided that
any Letter of Credit may be for the account of any Subsidiary of the Borrower)
and to amend or renew Letters of Credit previously issued by it, in accordance
with Section 2.03(b), and (y) to honor drafts under the
Letters of Credit and (2) the Lenders severally agree to participate in
Letters of Credit issued pursuant to this Section 2.03(a)(i); provided,
that, no L/C Issuer shall be obligated to make any L/C Credit Extension with
respect to any Letter of Credit, and no Lender shall be obligated to
participate in any Letter of Credit if after giving effect to such L/C Credit
Extension, (w) the Outstanding Amount under the Revolving Credit Facility
would exceed the Revolving Credit Facility, (x) the Outstanding Amount of
the L/C Obligations would exceed the Letter of Credit Sublimit, (y) the
Outstanding Amount of the L/C Obligations would exceed any L/C Issuer’s Letter
of Credit Commitment or (z) the Revolving Credit Exposure of any Lender
would exceed such Lender’s Revolving Credit Commitment.  Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed.


 


(ii)           An L/C Issuer shall be under
no 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 such L/C Issuer from issuing such Letter of Credit, or
any Law applicable to such L/C Issuer or any directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over such
L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon such L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon such L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date (for which such L/C Issuer is not otherwise
compensated hereunder);


 


38

















 


(B)           the expiry date of such
requested Letter of Credit would occur more than twelve months after the date
of issuance or last renewal, unless the Required Lenders have approved such
expiry date;


 


(C)           the expiry date of such
requested Letter of Credit would occur after the Letter of Credit Expiration
Date, unless (i) all the Lenders have approved such expiry date or (ii) if
(a) the Borrower Cash Collateralizes the Outstanding Amount of such L/C
Obligation on the Letter of Credit Expiration Date and (b) such requested
Letter of Credit is on terms and conditions acceptable to the L/C Issuer;


 


(D)          the issuance of such Letter
of Credit would violate any Laws binding upon such L/C Issuer; or


 


(E)           the Letter of Credit is to
be denominated in a currency other than Dollars.


 


(iii)          An L/C Issuer shall be under
no obligation to amend any Letter of Credit if (A) such 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.


 


(b)           Procedures for Issuance and
Amendment of Letters of Credit; Auto Renewal 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 applicable L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application together with a Loan
Notice in respect of such L/C Advance, appropriately completed and signed by a
Responsible Officer of the Borrower. 
Such Letter of Credit Application must be received by the relevant L/C
Issuer and the Administrative Agent not later than 12:00 noon at least three (3) Business
Days prior to the proposed issuance date or date of amendment, as the case may
be; or, in each case, such later date and time as the relevant L/C Issuer may
agree in a particular instance in its sole discretion.  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 reasonably satisfactory to the relevant 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, which shall be not later than the
earlier of (1) twelve months after the issuance date and (2) Letter
of Credit Expiration Date; (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; and (g) such
other matters as the relevant L/C Issuer may reasonably request. 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 reasonably satisfactory to
the relevant L/C Issuer (1) the Letter of Credit to be amended; (2) the
proposed date of amendment thereof (which shall be a Business Day); (3) the
nature of the proposed amendment; and (4) such other matters as the
relevant L/C Issuer may reasonably request.


 


(ii)           Promptly after receipt of any
Letter of Credit Application, the relevant 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, such L/C Issuer will provide the Administrative Agent with a copy
thereof.  Upon receipt by the relevant
L/C Issuer of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof, then,
subject to the terms and conditions 


 


39

















 


hereof, such L/C Issuer
shall, on the proposed issuance date, issue a Letter of Credit for the account
of the Borrower or such Subsidiary, as the case may be, or enter into the
applicable amendment, as the case may be. 
Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees, to
acquire from the relevant L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Lender’s Pro  Rata
Share times the amount of such Letter of Credit.


 


(iii)          If the Borrower so requests
in any applicable Letter of Credit Application, the relevant L/C Issuer shall
agree to issue a Letter of Credit that has automatic renewal provisions (each,
an “Auto-Renewal Letter of Credit”); provided, that, any such
Auto-Renewal Letter of Credit must permit the relevant L/C Issuer to prevent
any such renewal 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 “Nonrenewal Notice Date”)
in each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the relevant L/C Issuer, the
Borrower shall not be required to make a specific request to the relevant L/C
Issuer for any such renewal.  If the
Borrower elects not to renew an Auto-Renewal Letter of Credit beyond the then
applicable expiry date, it shall given written notice to the relevant L/C
Issuer not later than 10 Business Days prior to the Nonrenewal Notice Date of
such Letter of Credit.  Once an
Auto-Renewal Letter of Credit has been issued, the applicable Lenders shall be
deemed to have authorized (but may not require) the relevant L/C Issuer to
permit the renewal of such Letter of Credit at any time to an expiry date not
later than the Letter of Credit Expiration Date; provided, that, the
relevant L/C Issuer shall not permit any such renewal if (A) the relevant
L/C Issuer has determined that it would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof (by
reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B) it
has received notice (which may be by telephone, followed promptly in writing,
or in writing) on or before the day that is five (5) Business Days before the
Nonrenewal Notice Date from the Administrative Agent or any Lender, as
applicable, or the Borrower that one or more of the applicable conditions
specified in Section 4.02 is not then satisfied.


 


(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 relevant 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 a drawing under
such Letter of Credit, the relevant L/C Issuer shall notify promptly the
Borrower and the Administrative Agent thereof. 
On the Business Day on which the Borrower shall have received notice of
any payment by an L/C Issuer under a Letter of Credit (or, if the Borrower
shall have received such notice later than 12:00 noon on any Business Day, on
the immediately following Business Day) (each such date, an “Honor Date”),
the Borrower shall reimburse such L/C Issuer through the Administrative Agent
in an amount equal to the amount of such drawing in the currency in which such
Letter of Credit was issued.  If the
Borrower fails to so reimburse such L/C Issuer by such time, the Administrative
Agent shall promptly notify each Appropriate Lender of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed Amount”), the
applicable currency, and the amount of such Appropriate Lender’s Pro  Rata
Share thereof.  In such event, the
Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the 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 Revolving Credit Commitments of the Appropriate
Lenders, and subject to the conditions set forth in Section 4.02
(other than the delivery of a Loan Notice). 
Any notice given by an L/C Issuer or the Administrative Agent pursuant
to this Section 2.03(c)(i) may be given by telephone if 


 


40

















 


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 Lender (including any
such Lender acting as an 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 relevant L/C
Issuer at the applicable Administrative Agent’s Office for payments in an
amount equal to its Pro  Rata Share of any Unreimbursed Amount in
respect of a Letter of Credit not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(v), each Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in such
amount.  The Administrative Agent shall
remit the funds so received to the relevant L/C Issuer.


 


(iii)          With respect to any
Unreimbursed Amount in respect of a Letter of Credit that is not fully
refinanced by a Borrowing of Base Rate Loans because the conditions set forth
in Section 4.02 cannot be satisfied or for any other reason
(including due to failure of a Defaulting Lender to fund its Pro  Rata
Share of such Unreimbursed Amount to the extent not reimbursed or Cash
Collateralized in accordance with Section 2.14), the Borrower shall
be deemed to have incurred from the relevant 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 Lender’s payment to the Administrative Agent for the account
of the relevant 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 Lender in satisfaction of its
participation obligation under this Section 2.03.


 


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


 


(v)           Each Lender’s obligation to
make Revolving Credit Loans or L/C Advances to reimburse an 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 Lender may have against the relevant 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,
that, each Lender’s obligation to make Revolving Credit Loans (but not L/C
Advances) 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 Loan Notice).  No such
making of an L/C Advance shall relieve or otherwise impair the obligation of
the Borrower to reimburse the relevant L/C Issuer for the amount of any payment
made by such L/C Issuer under any Letter of Credit, together with interest as
provided herein.


 


(vi)          If any Lender fails to make
available to the Administrative Agent for the account of the relevant L/C
Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
such L/C Issuer shall be entitled to recover from such 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 such L/C Issuer at a rate per annum equal to the
Federal Funds Rate.  A certificate of the
relevant L/C Issuer submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this Section 2.03(c)(vi) shall
be conclusive absent manifest error.


 


41

















 


(vii)         If, at any time after an L/C
Issuer has made a payment under any Letter of Credit and has received from any
Lender such Lender’s L/C Advance in respect of such payment in accordance with
this Section 2.03(c), the Administrative Agent receives for the
account of such 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 each Lender its Pro  Rata
Share thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender’s L/C Advance was
outstanding) in the same funds as those received by the Administrative Agent; provided,
that, no such payments shall be distributed in respect of the Pro  Rata
Share of any Defaulting Lender that did not fund its participation obligations
in respect of such Letter of Credit.


 


(viii)        If any payment received by
the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 11.06
(including pursuant to any settlement entered into by such L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of such L/C Issuer its Pro  Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate.


 


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


 


(i)            any lack of validity or
enforceability of such Letter of Credit, this Agreement, or any other agreement
or instrument relating thereto;


 


(ii)           the existence of any claim,
counterclaim, setoff, defense or other right that any Loan Party 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 relevant 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 relevant
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 relevant L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law;


 


(v)           any exchange, release or
nonperfection of any Collateral, or any release or amendment or waiver of or
consent to departure from the Guaranty or any other guarantee, for all or any
of the Obligations of any Loan Party in respect of such Letter of Credit; or


 


42

















 


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


 


provided, that, the
foregoing shall not excuse any L/C Issuer from liability to the Borrower to the
extent of any direct damages (as opposed to consequential, punitive or special
damages, claims in respect of which are waived by the Borrower to the extent
permitted by applicable Law) suffered by the Borrower to the extent such
damages are determined by a final non-appealable judgment of a court of
competent jurisdiction to have been caused by such L/C Issuer’s gross
negligence or willful misconduct when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof.


 


(e)           Role of L/C Issuers.  Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the relevant 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 Issuers, any Agent-Related
Person nor any of the respective correspondents, participants or assignees of
any L/C Issuer shall be liable to any Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the
Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit
Application.  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, 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 Issuers, any Agent-Related Person, nor any of the
respective correspondents, participants or assignees of any L/C Issuer, shall
be liable or responsible for any of the matters described in clauses (i) through
(iii) of this Section 2.03(e); provided, that,
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against an L/C Issuer, and such 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 caused by such L/C
Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful or
grossly negligent 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 each case as
determined by a final non-appealable judgment of a court of competent
jurisdiction.  In furtherance and not in
limitation of the foregoing, each 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 no L/C Issuer
shall 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.


 


(f)            Letter of Credit Fees.  The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro  Rata
Share a Letter of Credit fee for each Letter of Credit issued pursuant to this
Agreement equal to the product of (i) the Applicable Margin for Revolving
Credit Loans that are Eurodollar Rate Loans and (ii) the daily maximum
amount then available to be drawn under such Letter of Credit; provided,
that, Letter of Credit fees accrued with respect to any Pro  Rata
Share of any Letters of Credit during the period prior to the time any Lender
became a Defaulting Lender and unpaid at such time shall not be payable by the
Administrative Agent so long as such Lender shall be a Defaulting Lender except
to the extent that such Lender’s Pro  Rata Share of the Letter of
Credit fee shall otherwise have been due and payable to such Defaulting Lender
prior to such time; and 


 


43

















 


provided, further, that
no Letter of Credit fee shall accrue to any Defaulting Lender so long as such
Lender shall be a Defaulting Lender. 
Such letter of credit fees shall be computed on a quarterly basis in
arrears and shall be payable on the last Business Day of each March, June, September and
December and on the Maturity Date, 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.


 


(g)           Fronting Fee and Documentary
and Processing Charges Payable to L/C Issuers.  The Borrower shall pay to the Administrative
Agent, for the account of the L/C Issuer, a fronting fee (a “Fronting Fee”)
with respect to each Letter of Credit issued by it equal to 0.25% per annum of
the daily maximum amount then available to be drawn under such Letter of
Credit.  Such fronting fees shall be
computed on a quarterly basis in arrears and shall be payable on the last
Business Day of each March, June, September and December and on the
Maturity Date, 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.  In addition, the
Borrower shall pay directly to each L/C Issuer for its own account the
customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of such 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
within ten (10) Business Days of demand and are nonrefundable.


 


(h)           Conflict with Letter of
Credit Application. 
Notwithstanding anything else to the contrary in any Letter of Credit
Application, in the event of any conflict between the terms hereof and the
terms of any Letter of Credit Application, the terms hereof shall control.


 


(i)            Addition of an L/C Issuer.  A Lender (or any of its Subsidiaries or
affiliates) may become an additional L/C Issuer hereunder pursuant to a written
agreement among the Borrower, the Administrative Agent and such Lender.  The Administrative Agent shall notify the
Lenders of any such additional L/C Issuer.


 


Section 2.04           [Reserved].


 


Section 2.05           Prepayments.  (a)  Optional Prepayments.  The Borrower may, upon delivery of a
Prepayment Notice to the Administrative Agent, at any time or from time to time
voluntarily prepay Revolving Credit Loans in whole or in part; provided, that, (1) such notice must be
received by the Administrative Agent not later than 12:00 noon (New York, New
York time) (A) three (3) Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (B) one (1) Business Day
prior to any date of prepayment of Base Rate Loans; (2) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof; (3) any prepayment of Base Rate
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
Loans to be prepaid.  The Administrative
Agent will promptly notify each Appropriate Lender of its receipt of each such
notice, and of the amount of such Lender’s Pro
Rata 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 thereon,
together with any additional amounts required pursuant to Section 3.05.  Each prepayment of the Loans pursuant to this
Section 2.05(a) shall be applied to the installments thereof
as directed by the Borrower and shall be paid to the Appropriate Lenders in
accordance with their respective Pro Rata
Shares.   Notwithstanding anything to the
contrary contained in this Agreement, the Borrower may rescind any notice of
prepayment under this Section 2.05(a) if such prepayment would
have resulted from a refinancing of the Revolving Credit Facility, which
refinancing shall not be consummated or shall otherwise be delayed.


 


44

















 


(b)           Mandatory Prepayments.  (i)  (A)  Subject to Section 2.05(b)(i)(B),
if (x) the Borrower or any Subsidiary Disposes of any property or (y) any
Casualty Event occurs, which in the aggregate results in the realization or
receipt by the Borrower or such Subsidiary of Net Cash Proceeds, the Borrower
shall make a prepayment, in accordance with Section 2.05(b)(i)(C),
in an aggregate principal amount of Loans equal to 100% of all such Net Cash
Proceeds realized or received; provided,
that, no such prepayment shall be required pursuant to this Section 2.05(b)(i)(A) with
respect to such portion of such Net Cash Proceeds that the Borrower shall have,
on or prior to such date, given written notice to the Administrative Agent of
its intent to reinvest in accordance with Section 2.05(b)(i)(B) (which
notice may only be provided if no Event of Default has occurred and is then
continuing).


 


(B)           With respect to any Net Cash
Proceeds realized or received with respect to any Disposition or any Casualty
Event, at the option of the Borrower, the Borrower may reinvest all or any
portion of such Net Cash Proceeds in assets useful for its business so long as (i) within
twelve (12) months following receipt of such Net Cash Proceeds, either such
proceeds shall have been reinvested or a definitive agreement for the purchase
of such assets with such Net Cash Proceeds shall have been entered into (as set
forth by the Borrower in its notice of reinvestment election) and (ii) if
such agreement shall have been entered into within such twelve-month period,
within 180 days after the expiration of such twelve-month period, such purchase
shall have been consummated; provided,
that, (i) so long as an Event of Default shall have occurred and be
continuing, the Borrower shall not be permitted to make any such reinvestments
(other than pursuant to a legally binding commitment that the Borrower entered
into at a time when no Event of Default is continuing) and (ii) if any Net
Cash Proceeds are not so reinvested by the deadlines specified above or if any
such Net Cash Proceeds are no longer intended to be or cannot be so reinvested
at any time after delivery of a notice of reinvestment election, an amount
equal to 100% of any such Net Cash Proceeds shall be applied, in accordance
with Section 2.05(b)(i)(C), to the prepayment of the Revolving
Credit Loans as set forth in this Section 2.05.


 


(C)           On each occasion that the
Borrower must make a prepayment of the Loans pursuant to this Section 2.05(b)(i),
the Borrower shall, as promptly as reasonably practicable, but in any event
within five Business Days after the date of realization or receipt of such Net
Cash Proceeds (or, in the case of prepayments required pursuant to Section 2.05(b)(i)(B),
as promptly as reasonably practicable, but in any event within five (5) Business
Days after the deadline specified in clause (i) or (ii) thereof,
as applicable, or of the date the Borrower reasonably determines that such Net
Cash Proceeds are no longer intended to be or cannot be so reinvested, as the
case may be), make a prepayment, in accordance with Section 2.05(b)(iv) below,
of the outstanding amount of Revolving Credit Loans in an amount equal to 100%
of such Net Cash Proceeds realized or received.


 


(ii)           If the Borrower or any
Subsidiary incurs or issues any Indebtedness not expressly permitted to be
incurred or issued pursuant to Section 7.03, the Borrower shall
cause to be prepaid an aggregate principal amount of Revolving Credit Loans
equal to 100% of all Net Cash Proceeds received therefrom as promptly as
reasonably practicable, but in any event, prior to the date which is five (5) Business
Days after the receipt of such Net Cash Proceeds.


 


(iii)          As promptly as practicable,
but in any event within five (5) Business Days after issuance thereof, the
Borrower shall cause to be prepaid an aggregate principal amount of Revolving
Credit Loans equal to 100% of all Net Cash Proceeds realized or received by the
Borrower or any of its Subsidiaries from any Extraordinary Receipt.


 


(iv)          The Borrower shall, on each
Business Day, prepay an aggregate principal amount of the Borrowings comprising
part of the same Borrowings and the L/C Advances and Cash Collateralize amounts
under Letters of Credit in an amount equal to the amount by which (A) the
sum of the aggregate principal amount of (x) Borrowings and (y) L/C
Advances plus the aggregate Available 


 


45

















 


Amount of any Letter of
Credit then outstanding exceeds (B) the Revolving Credit Facility on such
Business Day.


 


(v)           The Borrower shall, on each
Business Day, pay to the Administrative Agent for deposit in the Cash
Collateral Account, an amount sufficient to cause the aggregate amount on
deposit in the Cash Collateral Account to equal the amount by which the
aggregate Available Amount of all Letters of Credit then outstanding exceeds
the Letter of Credit Sublimit on such Business Day.


 


(vi)          Each prepayment of Loans
pursuant to clauses (i), (ii), and (iii) of this
Section 2.05(b) shall be applied to prepay any outstanding
Revolving Credit Loans and each such prepayment shall be paid to the Lenders in
accordance with their respective Pro Rata
Shares subject to clause (v) of this Section 2.05(b).


 


(vii)         The Borrower shall notify
the Administrative Agent in writing of any mandatory prepayment of Loans
required to be made pursuant to clauses (i), (ii), and (iii) of
this Section 2.05(b) at least five (5) Business Days
prior to the date of such prepayment pursuant to a Prepayment Notice.  Each such notice shall specify the date of
such prepayment and provide a reasonably detailed calculation of the amount of
such prepayment.  The Administrative
Agent will promptly notify each Appropriate Lender of the contents of the
Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.


 


(viii)        Prepayments of the Revolving
Credit Facility made pursuant to clauses (iv) and (v) of
this Section 2.05(b) shall be applied first to prepay
to L/C Credit Extensions then outstanding until such advances are paid in full,
second, applied to prepay Revolving Credit Loans then outstanding
comprising part of the same Borrowings until such Loans are paid in full and third,
to Cash Collateralize 102% of the Available Amount of Letters of Credit then
outstanding.  Upon the drawing of any
Letter of Credit for which funds are on deposit in the Cash Collateral Account,
such funds shall be applied to reimburse the applicable L/C Issuer or the
Lenders, as applicable.  Each such
prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares.


 


(c)           Interest, Funding Losses.  All prepayments under this Section 2.05
shall be accompanied by all accrued interest thereon, together with, in the
case of any such prepayment of a Eurodollar Rate Loan on a date other than the
last day of an Interest Period therefor, any amounts owing in respect of such
Eurodollar Rate Loan pursuant to Section 3.05.  If any payment of Eurodollar Rate Loans
otherwise required to be prepaid under this Section 2.05(c) would
be made on a day other than the last day of the applicable Interest Period
therefor, the Borrower may direct the Administrative Agent to (and if so
directed, the Administrative Agent shall) deposit such payment in a deposit
account pledged as Collateral until the last day of the applicable Interest
Period at which time the Administrative Agent shall apply the amount of such
payment to the prepayment of such Borrowings; provided, however,
that such Loans shall continue to bear interest as set forth in Section 2.08
until the last day of the applicable Interest Period thereunder.


 


Section 2.06           Termination or Reduction of
Revolving Credit Commitments.  (a)  Optional.  The Borrower may, upon written notice to the
Administrative Agent, terminate the unused Revolving Credit Commitments, or
from time to time permanently reduce the unused Revolving Credit Commitments; provided, that, (i) any such notice shall
be received by the Administrative Agent three (3) Business Days prior to
the date of termination or reduction, (ii) any such partial reduction
shall be in an aggregate amount of $1,000,000 or any whole multiple of $500,000
in excess thereof, and (iii) if, after giving effect to any reduction of
the Revolving Credit Commitments, the Letter of Credit Sublimit exceeds the
amount of the Revolving Credit Facility, such sublimit shall be automatically
reduced by the amount of such excess.


 


46
















 


(b)           Mandatory.  (i)  The Revolving Credit Commitments
shall terminate on the Maturity Date.


 


(ii)           The Letter of Credit
Facility shall be permanently reduced from time to time on the date of each
reduction in the Revolving Credit Facility by the amount, if any, by which the
amount of the Letter of Credit Facility exceeds the Revolving Credit Facility
after giving effect to such reduction of the Revolving Credit Facility.


 


(c)           Application of Revolving
Credit Commitment Reductions; Payment of Fees.  The Administrative Agent will promptly notify
the Lenders of any termination or reduction of unused portions of the Letter of
Credit Sublimit or the unused Revolving Credit Commitments under this Section 2.06.  Upon any reduction of unused Revolving Credit
Commitments, the Revolving Credit Commitment of each Lender shall be reduced by
such Lender’s Pro Rata Share of the amount
by which such Revolving Credit Commitments are reduced (other than the
termination of the Commitment of any Lender as provided in Section 3.07).  All Commitment Fees accrued until the
effective date of any termination of the Revolving Credit Commitments shall be
paid on the effective date of such termination.


 


Section 2.07           Repayment of Loans.  The Borrower shall repay to the
Administrative Agent for the ratable account of the Appropriate Lenders on the
Maturity Date for the Revolving Credit Facility the aggregate principal amount
of all of its Revolving Credit Loans outstanding on such date.


 


Section 2.08           Interest.  (a)  Subject to the provisions of Section 2.08(b),
(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, as the case may be, plus
the Applicable Margin; and (ii) each Base Rate Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at
a rate per annum equal to the Base Rate plus the Applicable Margin.


 


(b)           The Borrower shall pay
interest on past due amounts hereunder at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.  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.


 


Section 2.09           Fees.  In addition to certain fees described in Section 2.03(f) and
(g):


 


(a)           Commitment Fee.  The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share, a commitment fee (the “Commitment
Fee”) equal to, (i) during the period from and including the Closing
Date to but excluding the Initial Financial Statement Delivery Date, 1%
per annum on the Unused Revolving Credit Commitment and (ii) thereafter,
the following percentages per annum, based upon the Usage of the Revolving
Credit Facility as set forth below:


 


47

















 


	
  Pricing

  Level

  	
   

  	
  Usage

  	
   

  	
  Commitment Fee

  	
   

  
	
  1

  	
   

  	
  Greater than or equal to 66.6%

  	
   

  	
  0.50

  	
  %

  
	
  2

  	
   

  	
  Less than 66.6% but greater than or equal to 33.3%

  	
   

  	
  0.75

  	
  %

  
	
  3

  	
   

  	
  Less than 33.3%

  	
   

  	
  1.00

  	
  %

  



 


provided, that, any
Commitment Fee accrued with respect to any Pro  Rata share of the
Revolving Credit Commitments of a Defaulting Lender during the period prior to
the time such Lender became a Defaulting Lender and unpaid at such time shall
not be payable by the Borrower so long as such Lender shall be a Defaulting
Lender except to the extent that such Commitment Fee shall otherwise have been
due and payable by the Borrower prior to such time; and provided, further, that no
Commitment Fee shall accrue on any Pro  Rata Share of any
Revolving Credit Commitments of a Defaulting Lender so long as such Lender
shall be a Defaulting Lender.  Commitment
Fees shall be payable quarterly in arrears on the last Business Day of each
March, June, September and December and on the Maturity Date,
commencing on the Closing Date in the case of each initial Lender and from the
effective date specified in the Assignment and Assumption pursuant to which
each other Lender became a Lender, until the Maturity Date.


 


(b)           The Borrower shall pay to
the Administrative Agent for the account of each Lender in accordance with its Pro Rata Share, an upfront fee in respect of
the Revolving Credit Facility equal to 2% of the aggregate amount of the
Revolving Credit Facility, which fee shall be payable in full on the Closing
Date; provided, however, that such fees will not be financed or
discounted from any drawings or advances under the Revolving Credit Facility.


 


(c)           Other Fees.  The Borrower shall pay to the Agents such
fees as shall have been separately agreed upon in writing in the amounts and at
the times so specified.  Such fees shall
be fully earned when paid and shall not be refundable for any reason whatsoever
(except as expressly agreed between the Borrower and the applicable Agent).


 


Section 2.10           Computation of Interest and
Fees.  All computations of interest
for Base Rate Loans shall be made on the basis of a year of three hundred and
sixty-five (365) days or three hundred and sixty-six (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 three
hundred and sixty (360) day year and actual days elapsed.  Interest shall accrue on each Loan for the
day on which such Loan is made, and shall not accrue on such Loan, or any
portion thereof, for the day on which such Loan or such portion is paid; provided, that, any such Loan that is repaid
on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one (1) 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.


 


Section 2.11           Evidence of Indebtedness.  (a)  The Credit Extensions made by each
Lender shall be evidenced by one or more accounts or records maintained by such
Lender and evidenced by one or more entries in the Register maintained by the
Administrative Agent, as agent for the Borrower, in each case in the ordinary
course of business.  The accounts or
records maintained by the Administrative 


 


48

















 


Agent
and each Lender shall be prima  facie evidence absent manifest
error of the amount of the Credit Extensions made by the Lenders to the
Borrower and the interest and payments thereon. 
Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. 
In the event of any conflict between the accounts and records maintained
by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error. 
Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note payable to such Lender, 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 Section 2.11(c), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice
accounts or records and, in the case of the Administrative Agent, entries in
the Register, evidencing the purchases and sales by such Lender of
participations in Letters of Credit.  In
the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error.


 


(c)           Entries made in good faith
by the Administrative Agent in the Register pursuant to Section 2.11(a) and
(b), and by each Lender in its account or accounts pursuant to Section 2.11(a) and
(b), shall be prima  facie evidence of the amount of
principal and interest due and payable or to become due and payable from the
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement and the other Loan
Documents, absent manifest error; provided,
that, the failure of the Administrative Agent or such Lender to make an entry,
or any finding that an entry is incorrect, in the Register or such account or
accounts shall not limit or otherwise affect the obligations of the Borrower
under this Agreement and the other Loan Documents.


 


Section 2.12           Payments Generally.  (a)  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 applicable Administrative Agent’s
Office and in immediately available funds not later than 3:00 p.m. (New
York City time) on the date specified herein. 
The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to
such Lender’s Applicable Lending Office. 
All payments received by the Administrative Agent after 3:00 p.m.
(New York City time) shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue.


 


(b)           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; provided, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Loans to be made in the
next succeeding calendar month, such payment shall be made on the immediately
preceding Business Day.


 


(c)           Unless the Borrower or any
Lender has notified the Administrative Agent, prior to the date any payment is
required to be made by it to the Administrative Agent hereunder, that the
Borrower or such Lender, as the case may be, will not make such payment, the
Administrative Agent may assume that the Borrower or such Lender, as the case
may be, has timely made such payment and may (but shall not be so required to),
in reliance thereon, make available a corresponding amount to the Person 


 


49

















 


entitled thereto. If and to
the extent that such payment was not in fact made to the Administrative Agent
in immediately available funds, then:


 


(i)            if the Borrower failed to
make such payment, each Lender shall forthwith on demand repay to the
Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest
thereon in respect of each day from and including the date such amount was made
available by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at the
Federal Funds Rate; and


 


(ii)           if any Lender failed to make
such payment, such Lender shall forthwith on demand pay to the Administrative
Agent the amount thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is recovered by
the Administrative Agent (the “Compensation Period”) at a rate per annum
equal to the Federal Funds Rate.  When
such Lender makes payment to the Administrative Agent (together with all
accrued interest thereon), then such payment amount (excluding the amount of
any interest which may have accrued and been paid in respect of such late
payment) shall constitute such Lender’s Loan included in the applicable
Borrowing.  If such Lender does not pay
such amount forthwith upon the Administrative Agent’s demand therefor, then in
the event the Administrative Agent has funded a Loan in advance of receipt of
funds from a Defaulting Lender or otherwise made a payment to the Borrower on
behalf of such Defaulting Lender, the Administrative Agent may make a demand
therefor upon the Borrower and the Borrower shall pay such amount to the
Administrative Agent, together with interest thereon for the Compensation
Period at a rate per annum equal to the rate of interest applicable to the
applicable Borrowing.  Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill its
Revolving Credit Commitment or to prejudice any rights which the Administrative
Agent or the Borrower may have against any Lender as a result of any default by
such Lender hereunder.


 


A notice of the
Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this Section 2.12(c) shall be conclusive, absent
manifest error.


 


(d)           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.


 


(e)           The obligations of the
Lenders hereunder to make Loans and to fund participations in Letters of Credit
are several and not joint.  The failure
of any Lender to make any Loan or to fund any such participation on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and neither the Administrative Agent nor any
Lender shall be responsible for the failure of any other Lender to make its
Loan or purchase its participation.


 


(f)            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.


 


(g)           Whenever any payment
received by the Administrative Agent under this Agreement or any of the other
Loan Documents is insufficient to pay in full all amounts due and payable 


 


50

















 


to the Administrative Agent
and the Lenders under or in respect of this Agreement and the other Loan
Documents on any date, such payment shall be distributed by the Administrative
Agent and applied by the Administrative Agent and the Lenders in the order of
priority set forth in Section 9.03. 
If the Administrative Agent receives funds for application to the
Obligations of the Loan Parties under or in respect of the Loan Documents under
circumstances for which the Loan Documents do not specify the manner in which
such funds are to be applied, the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each of the Lenders in
accordance with such Lender’s Pro Rata
Share of the sum of (a) the Outstanding Amount of all Loans outstanding at
such time and (b) the Outstanding Amount of all L/C Obligations
outstanding at such time, in repayment or prepayment of such of the outstanding
Loans or other Obligations then owing to such Lender.


 


Section 2.13           Sharing of Payments.  If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it,
or the participations in L/C Obligations held by it, any payment (whether
voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders
such participations in the Loans made by them and/or such sub-participations in
the participations in L/C Obligations held by them, as the case may be, as
shall be necessary to cause such purchasing Lender to share the excess payment
in respect of such Loans or such participations, as the case may be, pro
rata with each of them; provided,
that, if all or any portion of such excess payment is thereafter recovered from
the purchasing Lender under any of the circumstances described in Section 11.06
(including pursuant to any settlement entered into by the purchasing Lender in
its discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of such paying Lender’s required
repayment to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered, without further interest thereon.
The Borrower agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by applicable Law, exercise all its
rights of payment (including the right of setoff, but subject to Section 11.09)
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.  The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section 2.13 and will in each
case notify the Lenders following any such purchases or repayments.  Each Lender that purchases a participation
pursuant to this Section 2.13 shall from and after such purchase
have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.


 


Section 2.14           Defaulting Lenders.  Notwithstanding any other provision in this
Agreement to the contrary, if at any time a Lender becomes a Defaulting Lender,
then the following provisions shall apply so long as any Lender is a Defaulting
Lender:


 


(a)           If any L/C Exposure exists
at the time a Lender becomes a Defaulting Lender, then (i) all or any part
of such L/C Exposure of such Defaulting Lender will, subject to the limitation
in the proviso below, automatically be reallocated (effective on the day such
Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata
in accordance with their respective L/C Exposure; provided that (A) each
Non-Defaulting Lender’s L/C Exposure may not in any event exceed the Revolving
Credit Commitment of such Non-Defaulting Lender as in effect at the time of
such reallocation, (B) neither such reallocation nor any payment by a
Non-Defaulting Lender pursuant thereto will constitute a waiver or release of
any claim the Borrower, the Administrative Agent, the L/C Issuer or 


 


51

















 


any other Lender may have
against such Defaulting Lender or cause such Defaulting Lender to be a
Non-Defaulting Lender, (ii) to the extent that all or any portion (the “unreallocated
portion”) of the Defaulting Lender’s L/C Exposure cannot, or can only
partially, be so reallocated to Non-Defaulting Lenders, upon one (1) Business
Day’s notice by the L/C Issuer, the Borrower shall Cash Collateralize the
amount of such unreallocated portion of the Defaulting Lender’s L/C Exposure in
accordance with Section 2.15 and (iii)  if the L/C Exposure of
the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(a),
then the fees payable to the Lenders pursuant to Section 2.09(a) shall
be adjusted in accordance with such non-Defaulting Lenders’ L/C Exposure;


 


(b)           The L/C Issuer shall not be
required to issue, amend, extend or renew any Letter of Credit unless the L/C
Issuer is satisfied that the Borrower has Cash Collateralized such L/C Exposure
of such Defaulting Lender, as the case may be, in accordance with Section 2.15.


 


Section 2.15           Cash Collateral.  (a)  (i) If any Event of Default
occurs and is continuing and the Administrative Agent or the Required Lenders,
as applicable, require the Borrower to Cash Collateralize the L/C Obligations
pursuant to Section 9.02(c) or (ii) an Event of Default
set forth under Section 9.01(f) or (g) occurs and
is continuing, then the Borrower shall Cash Collateralize the then Outstanding
Amount of all L/C Obligations (in an amount equal to such Outstanding Amount
determined as of the date of such Event of Default) and shall do so not later
than 2:00 p.m. (New York City time) on the Business Day immediately
following the date that the Borrower receives such notice.


 


(b)           At any time a Lender becomes
a Defaulting Lender and the Administrative Agent or L/C Issuer requires the
Borrower to Cash Collateralize the L/C Exposure of any Defaulting Lender
pursuant to Section 2.14, the Borrower shall Cash Collateralize the
amount of the L/C Exposure of any such Defaulting Lender by 2:00 p.m. (New
York City Time) on the Business Day immediately following the day that the
Borrower receives notice by the Administrative Agent or L/C Issuer.


 


(c)           If at any time the
Administrative Agent determines that any funds held as Cash Collateral are
subject to any right or claim of any Person other than the Administrative Agent
(on behalf of the Secured Parties) or that the total amount of such funds is
less than the aggregate Outstanding Amount of all L/C Obligations, the Borrower
will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the Cash
Collateral Account) as aforesaid, an amount equal to the excess of (a) such
aggregate Outstanding Amount over (b) the total amount of funds, if any,
then held as Cash Collateral that the Administrative Agent reasonably
determines to be free and clear of any such right and claim. Upon the drawing
of any Letter of Credit for which funds are on deposit as Cash Collateral, such
funds shall be applied, to the extent permitted under applicable Law, to
reimburse the relevant L/C Issuer.  To
the extent the amount of any Cash Collateral exceeds the then Outstanding
Amount of such L/C Obligations plus costs incidental thereto and so long as no
other Event of Default has occurred and is continuing, the excess shall be
refunded to the Borrower.  If such Event
of Default is cured or waived and no other Event of Default is then occurring
and continuing or, if the Administrative Agent determines that a Defaulting
Lender is no longer a Defaulting Lender, the appropriate amount of any Cash
Collateral shall be refunded to the Borrower.


 


For purposes hereof, “Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the relevant L/C Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit account balances
(“Cash Collateral”) pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent and the relevant L/C Issuer
(which documents are hereby consented to by the Lenders).  Derivatives of such term have corresponding meanings.  The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuers and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all 


 


52

















 


proceeds
of the foregoing.  Cash Collateral shall
be maintained in blocked accounts at Royal Bank (the “Cash Collateral
Account”).


 


ARTICLE
III


 


TAXES,
INCREASED COSTS PROTECTION AND ILLEGALITY


 


Section 3.01           Taxes.  (a)  Except as provided in this Section 3.01,
any and all payments by the Borrower (the term Borrower under this Article III
being deemed to include any Subsidiary for whose account a Letter of Credit is
issued) or any Guarantor to or for the account of any Agent or any Lender under
any Loan Document shall be made free and clear of and without deduction for any
and all present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities
(including additions to tax, penalties and interest) with respect thereto,
excluding the Excluded Taxes (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as “Taxes”).  If the Borrower or any Guarantor shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to any Agent or any Lender, (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 3.01),
each of such Agent and such Lender receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower or
Guarantor shall make such deductions, (iii) the Borrower or Guarantor
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within thirty (30)
days after the date of such payment (or, if receipts or evidence are not
available within thirty (30) days, as soon as possible thereafter), the
Borrower shall furnish to such Agent or Lender (as the case may be) the
original or a facsimile copy of a receipt evidencing payment thereof to the
extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Administrative Agent. If the
Borrower fails to pay any Taxes when due to the appropriate taxing authority or
fails to remit to any Agent or any Lender the required receipts or other
required documentary evidence, the Borrower shall indemnify such Agent and such
Lender for any Taxes that may become payable by such Agent or such Lender
arising out of such failure.


 


(b)           In addition, the Borrower
agrees to pay any and all present or future stamp, court or documentary taxes
and any other excise, property, intangible or mortgage recording taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (all such
non-excluded taxes described in this Section 3.01(b) being
hereinafter referred to as “Other Taxes”).


 


(c)           The Borrower agrees to
indemnify each Agent and each Lender for (i) the full amount of Taxes and
Other Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable and paid under this Section 3.01)
payable by such Agent and such Lender and (ii) any reasonable expenses
arising therefrom or with respect thereto, in each case whether or not such
Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority.  Such
Agent or Lender, as the case may be, will, at the Borrower’s request, provide
the Borrower with a written statement thereof setting forth in reasonable
detail the basis and calculation of such amounts, and shall include reasonable
supporting documentation, as the case may be. 
Payment under this Section 3.01(c) shall be made within
ten (10) days after the date such Lender or such Agent makes a demand
therefor.  For the avoidance of doubt,
the Borrower shall not be required to indemnify any Lender or Agent under this Section 3.01(c) with
respect to any Taxes that have been compensated for by the payment of any
additional amounts pursuant to Section 3.01(a) or Other Taxes
pursuant to Section 3.01(b).


 


53

















 


(d)           If any Lender or Agent
determines, in its reasonable discretion, that it has received a refund in
respect of any Taxes or Other Taxes as to which indemnification or additional
amounts have been paid to it by the Borrower pursuant to this Section 3.01,
it shall remit such refund as soon as practicable after it is determined that
such refund pertains to Taxes or Other Taxes (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 3.01 with respect to the Taxes or Other Taxes giving rise
to such refund plus any interest included in such refund by the relevant taxing
authority attributable thereto) to the Borrower, net of all reasonable
out-of-pocket expenses of the Lender or Agent, as the case may be and without
interest (other than any interest paid by the relevant taxing authority with
respect to such refund); provided, that,
the Borrower, upon the request of the Lender or Agent, as the case may be,
agrees promptly to return such refund (plus any penalties, interest or other
charges imposed by the relevant taxing authority) to such party in the event
such party is required to repay such refund to the relevant taxing authority.
Such Lender or Agent, as the case may be, shall, at the Borrower’s request,
provide the Borrower with a copy of any notice of assessment or other evidence
of the requirement to repay such refund received from the relevant taxing
authority (provided, that, such Lender or Agent may delete any
information therein that such Lender or Agent deems confidential).  Nothing herein contained shall interfere with
the right of a Lender or Agent to arrange its tax affairs in whatever manner it
thinks fit nor oblige any Lender or Agent to claim any tax refund or to make
available its tax returns or disclose any information relating to its tax
affairs or any computations in respect thereof or require any Lender or Agent
to do anything that would prejudice its ability to benefit from any other
refunds, credits, reliefs, remissions or repayments to which it may be
entitled.


 


(e)           Each Lender agrees that,
upon the occurrence of any event giving rise to the operation of Section 3.01(a)
or (c) with respect to such Lender it will, if requested by the
Borrower, use commercially reasonable efforts (subject to legal and regulatory
restrictions) to designate another Applicable Lending Office for any Loan or
Letter of Credit affected by such event; provided, that (i) such
designation would eliminate or reduce amounts payable pursuant to Section 3.01(a) or
(c), as the case may be, and (ii) such efforts are made on terms
that, in the judgment of such Lender, cause such Lender and its Applicable
Lending Office(s) to suffer no economic, legal or regulatory disadvantage;
and provided,
further, that nothing in this Section 3.01(e) shall affect
or postpone any of the Obligations of the Borrower or the rights of such Lender
pursuant to Section 3.01(a) or (c).  The Borrower agrees to pay all reasonable
costs and expenses incurred by any Lender or Agent in connection with any such
designation.


 


(f)            Each Lender organized under
the laws of a jurisdiction outside the United States shall, on or prior to the
date of its execution and delivery of this Agreement, and from time to time
thereafter as reasonably requested in writing by the Borrower (but only so long
thereafter as the Lender remains lawfully able to do so), provide each of the
Borrower and the Administrative Agent with two properly completed and executed
original Internal Revenue Service Forms W-8BEN, W-8ECI or W-IMY (together with
any required attachments, if any), as appropriate, or any successor or other
form prescribed by the Internal Revenue Service certifying that such Lender is
exempt from or entitled to a reduced rate of U.S. withholding tax on payments
pursuant to this Agreement..  In the case
of a Lender that is claiming the “portfolio interest” exemption, such Lender
hereby represents to the Borrower and the Administrative Agent that it is not (i) a
“bank” as defined in Section 881(c)(3)(A) of the Code, (ii) a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Code) of the Borrower or (iii) a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of
the Code).  If any form or document
referred to in this Subsection requires the disclosure of information,
other than information necessary to compute the tax payable and information
required on the date hereof by Internal Revenue Service Form W-8BEN,
W-8ECI, W-IMY or the related representation described above, that the
applicable Lender reasonably considers to be confidential, such Lender shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information.  If any Lender is a “United States person”
within the meaning of Section 7701(a)(3) of the 


 


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Code, such Lender shall, on
or prior to the date of its execution and delivery of this Agreement, and from
time to time thereafter as reasonably requested in writing by the Borrower (but
only so long thereafter as the Lender remains lawfully able to do so), provide
to each the Borrower and the Administrative Agent with two properly completed
and executed original Internal Revenue Service W-9 Forms.  Notwithstanding any other provision of this Section 3.01,
a Lender shall not be required to deliver any form pursuant to this Section 3.01(f) that
such Lender is not legally able to deliver.


 


Section 3.02           Illegality.  (a)  If any Lender determines that any
Law has made it unlawful, or that any Governmental Authority that is a court,
statutory board or commission has asserted that it is unlawful, for any Lender
or its Applicable Lending Office to make, maintain or fund Eurodollar Rate
Loans, to determine or charge interest rates based upon the Eurodollar Rate,
then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, in respect of Eurodollar Rate Loans, (A) any
obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist, (B) upon
receipt of such notice, the Borrower shall upon demand from such Lender (with a
copy to the Administrative Agent), prepay in the case of Eurodollar Rate Loans,
such Eurodollar Rate Loans that have become unlawful 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 promptly, if such Lender
may not lawfully continue to maintain such Eurodollar Rate Loans, (C) upon
any such prepayment or conversion, the Borrower shall also pay accrued interest
on the amount so prepaid or converted and all amounts due, if any, in
connection with such prepayment or conversion under Section 3.05.  Each Lender agrees to designate a different
Applicable Lending Office if such designation will avoid the need for any such
notice and will not, in the good faith judgment of such Lender, otherwise be
materially disadvantageous to such Lender.


 


(b)           If any provision of this
Agreement or any of the other Loan Documents would obligate the Borrower to
make any payment of interest with respect to any of the Revolving Credit
Exposure or other amount payable to the Administrative Agent or any Lender in
an amount or calculated at a rate which would be prohibited by any Law then,
notwithstanding such provision, such amount or rates shall be deemed to have
been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by any applicable
law or so result in a receipt by the Administrative Agent or such Lender of
interest with respect to its Revolving Credit Exposure at a criminal rate, such
adjustment to be effected, to the extent necessary, as follows:


 


(i)            first, by reducing
the amount or rates of interest required to be paid to the Administrative Agent
or the affected Lender under Section 2.08; and


 


(ii)           thereafter, by reducing
any fees, commissions, premiums and other amounts required to be paid to the
Administrative Agent or the affected Lender which would constitute interest
with respect to the Revolving Credit Exposure for purposes of any applicable
law.


 


Section 3.03           Inability
to Determine Rates.  If the Required Lenders determine that for
any reason 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 that 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, or that Dollar
deposits are not being offered to banks in the London interbank eurodollar
market for the applicable amount and the Interest Period of such Eurodollar
Rate 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 


 


55

















 


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 Borrowing of Base Rate Loans in the
amount specified therein..


 


Section 3.04           Increased Cost and Reduced
Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.  (a)  If any Lender reasonably determines
that as a result of the introduction of or any Change in Law or a change in the
interpretation of any Law with which such Lender is required to comply, in each
case, after the date hereof, there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining any Loan (other than
a Base Rate Loan) or issuing or participating in Letters of Credit, or a
reduction in the amount received or receivable by such Lender in connection
with any of the foregoing (excluding for purposes of this Section 3.04(a) any
such increased costs or reduction in amount resulting from (i) Taxes or
Other Taxes covered by Section 3.01, (ii) the imposition of,
or any change in the rate of, any taxes imposed on or measured by net income
(including branch profits) and franchise (and similar) taxes imposed in lieu of
net income taxes payable by such Lender, or (iii) reserve requirements
contemplated by Section 3.04(c)), then from time to time within
fifteen (15) days after demand by such Lender setting forth in reasonable
detail such increased costs (with a copy of such demand to the Administrative
Agent given in accordance with Section 3.06), the Borrower shall
pay to such Lender such additional amounts as will compensate such Lender for
such increased cost or reduction. At any time when any Eurodollar Rate Loan is
affected by the circumstances described in this Section 3.04(a),
the Borrower may either (i) if the affected Eurodollar Rate Loan is then
being made pursuant to a Borrowing, cancel such Borrowing by giving the
Administrative Agent telephonic notice (confirmed promptly in writing) thereof
on the same date that the Borrowers receive any such demand from such Lender or
(ii) if the affected Eurodollar Rate Loan is then outstanding, upon at
least three (3) Business Days’ notice to the Administrative Agent, require
the affected Lender to convert such Eurodollar Rate Loan into a Base Rate Loan,
subject to the requirements of Section 3.05 to the extent
applicable.


 


(b)           If any Lender determines
that the introduction of any Law regarding capital adequacy or any change
therein or in the interpretation thereof with which such Lender (or its
Applicable Lending Office) is required to comply, in each case after the date
hereof, would have the effect of reducing the rate of return on the capital of
such Lender or any corporation controlling such Lender to a level below that
which such Lender or the corporation controlling such Lender could have
achieved but for such Change in Law (taking into consideration such Lender’s
policies and the policies of any corporation controlling such Lender with
respect to capital adequacy) as a consequence of such Lender’s obligations
hereunder, then from time to time upon demand of such Lender setting forth in
reasonable detail the charge and the calculation of such reduced rate of return
(with a copy of such demand to the Administrative Agent given in accordance
with Section 3.06), the Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such reduction within
fifteen (15) days after receipt of such demand.


 


(c)           The Borrower shall pay to
each Lender, (i) as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or including
Eurodollar funds or deposits, 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 in the absence of manifest
error), and (ii) as long as such Lender shall be required to comply with
any reserve ratio requirement or analogous requirement of any other central
banking or financial regulatory authority imposed in respect of the maintenance
of the Revolving Credit Commitments or the funding of the Eurodollar Rate
Loans, such additional costs (expressed as a percentage per annum and rounded
upwards, if necessary, to the nearest five decimal places) equal to the actual
costs allocated to such Revolving Credit Commitment or Loan by such Lender 


 


56

















 


(as determined by such
Lender in good faith, which determination shall be conclusive absent manifest
error) which in each case shall be due and payable on each date on which
interest is payable on such Loan, provided the Borrower shall have received at
least fifteen (15) days’ prior notice (with a copy to the Administrative Agent)
of such additional interest or cost from such Lender.  If a Lender fails to give notice fifteen (15)
days prior to the relevant Interest Payment Date, such additional interest or
cost shall be due and payable fifteen (15) days from receipt of such notice.


 


(d)           Subject to Section 3.06(b),
failure or delay on the part of any Lender to demand compensation pursuant to
this Section 3.04 shall not constitute a waiver of such Lender’s
right to demand such compensation.


 


(e)           If any Lender requests
compensation under this Section 3.04, then such Lender will, if
requested by the Borrower, use commercially reasonable efforts to designate
another Applicable Lending Office for any Loan or Letter of Credit affected by
such event; provided, that, such efforts
are made on terms that, in the reasonable judgment of such Lender, cause such
Lender and its Applicable Lending Office(s) to suffer no material
economic, legal or regulatory disadvantage; and provided, further, that nothing in this Section 3.04(e) shall
affect or postpone any of the Obligations of the Borrower or the rights of such
Lender pursuant to Section 3.04(a), (b), (c) or (d).


 


Section 3.05           Funding Losses.  Upon written demand of any Lender (with a
copy to the Administrative Agent) from time to time, which demand shall set
forth in reasonable detail the basis for requesting such amount, 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 Eurodollar Rate Loan on a day other
than the last day of the Interest Period for such Loan; or


 


(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;


 


including any loss or expense
(excluding loss of anticipated profits) 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 or the European interbank market,
respectively, for a comparable amount and for a comparable period, whether or
not such Eurodollar Rate Loan was in fact so funded.


 


Section 3.06           Matters Applicable to All
Requests for Compensation.  (a) 
Any Agent or Lender claiming compensation under this Article III
shall deliver a certificate to the Borrower setting forth the additional amount
or amounts to be paid to it hereunder, which shall be conclusive absent
manifest error.  In determining such
amount, such Agent or Lender may use any reasonable averaging and attribution
methods.  With respect to any Lender’s
claim for compensation under Section 3.01, Section 3.02
or Section 3.04, the Borrower shall not be required to compensate
such Lender for any amount incurred more than two hundred and seventy (270)
days prior to the date that such Lender notifies the Borrower of the event that
gives rise to such claim; provided, that,
if the circumstance giving rise to such claim is retroactive, then such 270-day
period referred to above shall be extended to include the period of retroactive
effect thereof. If any Lender requests compensation by the Borrower under 


 


57

















 


Section 3.04, the Borrower
may, by notice to such Lender (with a copy to the Administrative Agent),
suspend the obligation of such Lender to make or continue Eurodollar Rate Loans
from one Interest Period to another, or to convert Base Rate Loans into
Eurodollar Rate Loans, until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of Section 3.06(b)
shall be applicable); provided, that, such
suspension shall not affect the right of such Lender to receive the
compensation so requested.


 


(b)           If the obligation of any
Lender to make or continue any Eurodollar Rate Loan from one Interest Period to
another, or to convert Base Rate Loans into Eurodollar Rate Loans shall be
suspended pursuant to Section 3.06(a) hereof, such Lender’s
Eurodollar Rate Loans shall be automatically converted into Base Rate Loans on
the last day(s) of the then current Interest Period(s) for such
Eurodollar Rate Loans (or, in the case of an immediate conversion required by Section 3.02,
on such earlier date as required by Law) and, unless and until such Lender
gives notice as provided below that the circumstances specified in Section 3.01,
Section 3.02 or Section 3.04 hereof that gave rise to
such conversion no longer exist:


 


(i)            to the extent that such
Lender’s Eurodollar Rate Loans have been so converted, all payments and
prepayments of principal that would otherwise be applied to such Lender’s
Eurodollar Rate Loans shall be applied instead to its Base Rate Loans; and


 


(ii)           all Loans that would
otherwise be made or continued from one Interest Period to another by such
Lender as Eurodollar Rate Loans shall be made or continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be converted
into Eurodollar Rate Loans shall remain as Base Rate Loans.


 


(c)           If any Lender gives notice
to the Borrower (with a copy to the Administrative Agent) that the
circumstances specified in Section 3.01, Section 3.02
or Section 3.04 hereof that gave rise to the conversion of such
Lender’s Eurodollar Rate Loans pursuant to this Section 3.06 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Rate Loans made by other Lenders
are outstanding, such Lender’s Base Rate Loans shall be automatically converted
to Eurodollar Rate Loans, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding Eurodollar Rate Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding Eurodollar Rate Loans and by such Lender are held pro  rata
(as to principal amounts, interest rate basis, and Interest Periods) in
accordance with their respective Revolving Credit Commitments.


 


Section 3.07           Replacement of Lenders under
Certain Circumstances.  (a) 
If at any time (i) any Lender requests reimbursement for amounts owing
pursuant to Section 3.01 or Section 3.04 as a result of
any condition described in such Sections or any Lender ceases to make
Eurodollar Rate Loans as a result of any condition described in Section 3.02
or Section 3.04, (ii) any Lender becomes a Defaulting Lender
or (iii) any Lender becomes a Non-Consenting Lender, then the Borrower
may, at its sole expense and effort, on ten (10) Business Days’ prior
written notice to the Administrative Agent and such Lender, replace such Lender
by requiring such Lender to (and such Lender shall be obligated to) assign
pursuant to Section 11.07(b) (with the assignment fee to be
paid by the Borrower in such instance) all of its rights and obligations under
this Agreement (or, with respect to clause (iii) above, all of
its rights and obligations with respect to the Loans or Revolving Credit
Commitments that is the subject of the related consent, waiver or amendment) to
one or more Eligible Assignees; provided,
that, neither the Administrative Agent nor any Lender shall have any obligation
to the Borrower to find a replacement Lender or other such Person; and provided,
further, that (A) 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, (B) in the case 


 


58

















 


of
any such assignment resulting from a Lender becoming a Non-Consenting Lender,
the applicable Eligible Assignees shall have agreed to the applicable
departure, waiver or amendment of the Loan Documents and (C) any such
assignment shall not be made if it conflicts with applicable Laws.  A Lender shall not be required to make any
such assignment if, prior thereto, as a result of a waiver by the Required
Lenders or otherwise, the circumstances entitling the Borrower to require such
assignment cease to apply.


 


(b)           Any Lender being replaced
pursuant to Section 3.07(a) above shall execute and deliver an
Assignment and Assumption with respect to such Lender’s Revolving Credit
Commitment and outstanding Loans and participations in L/C Obligations, and the
Borrower deliver replacement Notes evidencing such Loans as requested by the
assignee Lender.  Pursuant to such
Assignment and Assumption, (A) the assignee Lender shall acquire all or a
portion, as the case may be, of the assigning Lender’s Revolving Credit
Commitment and outstanding Loans and participations in L/C Obligations, (B) all
obligations of the Borrower owing to the assigning Lender together with accrued
interest thereon to the date of payment of such principal amount and all other
amounts payable to such Lender under this Agreement shall be paid in full by
the assignee Lender to such assigning Lender concurrently with such Assignment
and Assumption and (C) upon such payment and, if so requested by the
assignee Lender, the Borrower shall deliver to the assignee Lender a Note or
Notes executed by the Borrower, the assignee Lender shall become a Lender
hereunder with respect to the interests assigned, in addition to any other
interest it may otherwise hold as a Lender under this Agreement, and the
assigning Lender shall cease to constitute a Lender hereunder with respect to
such assigned interest, except with respect to indemnification provisions under
this Agreement, which shall survive as to such assigning Lender.


 


(c)           Notwithstanding anything to
the contrary contained above, any Lender that acts as an L/C Issuer may not be
replaced hereunder at any time that it has any Letter of Credit outstanding
hereunder unless arrangements reasonably satisfactory to such L/C Issuer
(including the furnishing of a back-up standby letter of credit in form and
substance, and issued by an issuer reasonably satisfactory to such L/C Issuer,
or the depositing of cash collateral into a cash collateral account in amounts
and pursuant to arrangements reasonably satisfactory to such L/C Issuer) have
been made with respect to each such outstanding Letter of Credit and the Lender
that acts as the Administrative Agent may not be replaced hereunder except in
accordance with the terms of Section 10.09.


 


(d)           In the event that (i) the
Borrower or the Administrative Agent has requested that the Lenders consent to
a departure or waiver of any provisions of the Loan Documents or agree to any
amendment thereto, (ii) the consent, waiver or amendment in question
requires the agreement of all affected Lenders in accordance with the terms of Section 11.01
and (iii) the Required Lenders have agreed to such consent, waiver or
amendment, then any Lender who does not agree to such consent, waiver or
amendment shall be deemed a “Non-Consenting Lender”.


 


Section 3.08           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


 


Section 4.01           Conditions of Initial Credit
Extension.  The obligation
of each Lender to make its Initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent except as otherwise agreed
between the Borrower and the Administrative Agent:


 


(a)           The Administrative Agent’s
or Collateral Trustee’s receipt, as applicable, of the following, each of which
shall be originals, facsimiles or electronic transmission in .pdf format 


 


59

















 


(followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the signing Loan Party, each in
form and substance reasonably satisfactory to the Administrative Agent and its
legal counsel:


 


(i)            executed counterparts of
this Agreement and the Guaranty by each Loan Party and Lender, as applicable;


 


(ii)           an original Note executed by
the Borrower in favor of each Lender that has requested a Note;


 


(iii)          each Collateral Document set
forth on Schedule 2 required to be executed on the Closing Date as
indicated on such schedule, substantially simultaneously with the Initial
Credit Extension duly executed by each Loan Party thereto, together with (A) original
certificates, if any, representing the pledged equity referred to therein
accompanied by undated stock powers executed in blank and instruments
evidencing the pledged debt referred to therein endorsed in blank; and (B) evidence
that, substantially simultaneously with the closing of the Revolving Credit
Facility, all other actions, recordings and filings under the Uniform Commercial
Code and with the United States Patent and Trademark Office and the United
States Copyright Office shall have been taken, completed or otherwise provided
in a manner reasonably satisfactory to the Administrative Agent and Collateral
Trustee;


 


(iv)          such certificates (including
a certificate substantially in the form of Exhibit I) of
resolutions or other corporate action, incumbency certificates and/or other
certificates of Responsible Officers of each Loan Party as the Administrative
Agent may reasonably require evidencing the identity, authority and capacity of
each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such Loan
Party is a party or is to be a party on the Closing Date;


 


(v)           an opinion from Haynes &
Boone, LLP, New York and Texas counsel to the Loan Parties, substantially in
the form of Exhibit H;


 


(vi)          copies of a recent Lien and
judgment search in each jurisdiction reasonably requested by the Collateral
Agent with respect to the Loan Parties together with evidence that all existing
Liens (other than in respect of Liens permitted under Section 7.01)
have been terminated and all actions required to terminate and release such
Liens have been satisfactorily taken or will be taken substantially
simultaneously with the closing of the Transaction; and


 


(vii)         good standing certificates
or certificates of status, as applicable and bring down certificates, for each
Loan Party.


 


(b)           The Lenders shall have received
on or prior to the Closing Date, all documentation and other information
reasonably requested by them in writing at least seven (7) Business Days
prior to the Closing Date in order to allow the Lenders to comply with
applicable “know your customer” and anti-money laundering rules and
regulations, including the USA PATRIOT Act.


 


(c)           All fees and expenses
required to be paid hereunder and invoiced prior to the Closing Date shall have
been paid in full in cash on or prior to the Closing Date.


 


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(d)                                 Prior to or substantially
simultaneously with the Closing Date, the Acquisition shall have been
consummated, or substantially simultaneously with the Closing Date shall be
consummated, in accordance with the Acquisition Agreement in the form delivered
to the Lead Arranger on December 3, 2009 (and no provision of the
Acquisition Agreement shall have been waived, amended, supplemented or
otherwise modified in a manner material and adverse to the Lenders without
written notification to the Lenders and the consent of the Lead Arranger (it
being understood that any change in the price (including a price decrease),
other than a change in price that is not material and adverse to the Lenders,
or in the structure of the Acquisition will be deemed to be material and
adverse to the Lenders and will require the prior written consent of the
Lenders)).


 


(e)                                  Prior to or substantially
simultaneously with the Closing Date, (i) the Borrower shall have issued
the Senior Notes in an aggregate principal amount of not less than $300,000,000
and shall have received the net proceeds thereof and (ii) the Parent shall
have received $37,000,000 in gross cash proceeds from the sale of its Equity
Interests.


 


(f)                                    The Administrative Agent
shall have received (i) unqualified (as to “going concern” and scope)
audited consolidated balance sheets and related statements of income, changes
in equity and cash flows of the Parent for the fiscal years ended December 31,
2006, December 31, 2007 and December 31, 2008, (ii) the
Unaudited Financial Statements, (iii) the Pro Forma Financial Statements,
and (iv) historical financial statements of the Acquired Business.


 


(g)                                 Substantially simultaneously
with the Closing Date, all Existing Indebtedness (except for the Existing
Indebtedness designated on Schedule 1.01A as remaining in effect after
the Closing Date) shall have been repaid in full, together with all fees and
other amounts owing thereon or an amount has been deposited in escrow for the
irrevocable and indefeasible prepayment and repayment of such Existing
Indebtedness as of the Closing Date.


 


(h)                                 The Total Leverage Ratio as
of the Closing Date, after giving effect to the Transactions on a Pro  Forma
basis for the twelve months ending as of September 30, 2009, shall not be
greater than 2.85:1.00; provided, that, for purposes of this Section 4.01(h),
Consolidated Total Debt shall exclude any amounts in respect of Existing
Indebtedness for which corresponding amounts have been deposited in escrow for
the irrevocable and indefeasible prepayment and repayment of such Existing
Indebtedness as of the Closing Date.  For
purposes of this Section 4.01(h), it is agreed that Closing Date
EBITDA for the twelve months ending as of September 30, 2009 is
$109,500,000.


 


(i)                                     The Administrative Agent
shall be reasonably satisfied that all necessary governmental and third party
consents and approvals necessary in connection with the Transaction have been
obtained and be effective and all applicable waiting periods in respect thereof
shall have expired without any adverse action being taken by any Governmental
Authority and that no Law shall be applicable in the reasonable judgment of the
Lenders that restrains or prevents the consummation of the Transaction.


 


(j)                                     The Administrative Agent
shall have received evidence reasonably satisfactory to it of the insurance
coverage of the Borrower and Guarantor and such insurance coverage shall be in
accordance with Section 6.07.


 


Section 4.02                                Conditions to
All Credit Extensions.  The
obligation of each Lender to honor any Request for Credit Extension (other than
a Loan Notice requesting only a conversion of Loans to the other Type) is
subject to the following conditions precedent:


 


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(a)                                  (i) in the case of the
Initial Credit Extension, (A) the representations and warranties of the
Parent and its Subsidiaries contained in the Acquisition Agreement that are
material to the interests of the Lenders, but only to the extent that Parent
has the right to terminate its obligations under the Acquisition Agreement as a
result of a breach of any such representations by the Parent (determined
without regard to whether any notice is required to be delivered by the Parent)
and (B) the representations and warranties of the Borrower in Sections 5.01,
5.02, 5.03, 5.04, 5.08, and 5.14 (and
corresponding representations in any other Loan Document) shall be true and
correct on and as of the date of such Initial Credit Extension; or (ii) with
respect to any other Credit Extension other than the Initial Credit Extension,
the representations and warranties of the Borrower and each other Loan Party
contained in Article V or any other Loan Document shall be true and
correct in all material respects on and as of the date of such Credit
Extension; provided, that, to the extent
that such representations and warranties specifically refer to an earlier date,
they shall be true and correct in all material respects as of such earlier
date; provided, further, that any representation and warranty that is qualified as
to “materiality”, “Material Adverse Effect” or similar language shall be true
and correct (after giving effect to any qualification therein) in all respects
on such respective dates;


 


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


 


(c)                                  The Administrative Agent
and, if applicable, the relevant L/C Issuer shall have received a Request for
Credit Extension in accordance with the requirements hereof together with any
additional information as the Administrative Agent or L/C Issuer may reasonably
request.


 


Each Request for Credit
Extension (other than a Loan Notice requesting only a conversion of 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 Section 4.02(a) and (b) have
been satisfied on and as of the date of the applicable Credit Extension.


 


ARTICLE V


 


REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and
warrants to the Agents and the Lenders that:


 


Section 5.01                                Existence,
Qualification and Power; Compliance with Laws.  Each Loan Party and each other Subsidiary (a) is
duly incorporated, organized or formed, and validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization (to the
extent such concept exists in such jurisdiction), (b) has all requisite
power and authority 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, (c) is duly qualified and in good
standing (to the extent such concept exists) under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, (d) is in compliance
with all Laws (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System), orders, writs, injunctions and orders
and (e) has all requisite governmental licenses, authorizations, consents
and approvals to operate its business as currently conducted; except in each
case referred to in clause (c), (d) or (e), to
the extent that failure to do so would not reasonably be expected to have a
Material Adverse Effect.


 


Section 5.02                                Authorization;
No Contravention.  The
execution, delivery and performance by each Loan Party of each Loan Document to
which such Person is a party, and the consummation of the Transaction, are
within such Loan Party’s corporate or other powers, have been duly 


 


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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 (other than as permitted by Section 7.01),
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 material Law; except with
respect to any breach, contravention or violation (but not creation of Liens)
referred to in clause (b), to the extent that such breach,
contravention or violation would not reasonably be expected to have a Material
Adverse Effect.


 


Section 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, or for the consummation of the Transaction, (b) the grant by any
Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the
perfection or maintenance of the Liens created under the Collateral Documents
(including the priority thereof) or (d) the exercise by the Administrative
Agent or any Lender of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents, except for (i) filings
necessary to perfect the Liens on the Collateral granted by the Loan Parties in
favor of the Secured Parties, (ii) the approvals, consents, exemptions,
authorizations, actions, notices and filings which have been duly obtained,
taken, given or made and are in full force and effect and (iii) those
approvals, consents, exemptions, authorizations or other actions, notices or
filings set forth on Schedule 5.03, the failure of which to obtain
or make would not reasonably be expected to have a Material Adverse
Effect.  All applicable waiting periods
in connection with the Transaction have expired without any action having been
taken by any competent authority restraining, preventing or imposing materially
adverse conditions upon the Transaction or the rights of the Loan Parties or
their Subsidiaries freely to transfer or otherwise dispose of, or to create any
Lien on, any properties now owned or hereafter acquired by any of them.  The Acquisition is being consummated in
accordance with the Acquisition Agreement (except as otherwise expressly
permitted under this Agreement) and applicable Law.


 


Section 5.04                                Binding Effect.  This Agreement and each other Loan Document
has been duly executed and delivered by each Loan Party that is party
thereto.  This Agreement and each other
Loan Document constitutes a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance
with its terms, except as such enforceability may be limited by Debtor Relief
Laws and by general principles of equity and principles of good faith and fair
dealing.


 


Section 5.05                                Financial
Statements; No Material Adverse Effect.  (a)  (i)  The Audited Financial
Statements and Unaudited Financial Statements fairly present in all material
respects the financial condition of the Parent as of the dates thereof and
their results of operations for the period covered thereby in accordance with
GAAP consistently applied throughout the periods covered thereby, except (x) as
otherwise disclosed to the Administrative Agent prior to the Closing Date and (y) in
the case of the Unaudited Financial Statements, to changes resulting from
normal year end audit adjustments and the absence of footnotes.


 


(ii)                                  The unaudited
pro forma consolidated balance sheet of the Parent and its Subsidiaries as at September 30,
2009 (the “Pro Forma Balance Sheet”) and the unaudited pro forma
consolidated statement of operations of the Parent and its Subsidiaries for the
12 month period ending on September 30, 2009 (together with the Pro
Forma Balance Sheet, the “Pro Forma Financial Statements”),
copies of which have heretofore been furnished to the Administrative Agent,
have been prepared giving effect (as if such events had occurred on such date
or at the beginning of such periods, as the case may be) 


 


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to the Transaction and each
material acquisition by the Parent or any of its Subsidiaries consummated after
December 31, 2008 and prior to the Closing Date.  The Pro  Forma Financial
Statements have been prepared in good faith, based on assumptions believed by
the Parent to be reasonable as of the date of delivery thereof, and present
fairly in all material respects on a Pro  Forma basis the
estimated financial position of the Parent and its Subsidiaries as at September 30,
2009 and their estimated results of operations for the periods covered thereby,
assuming that the events specified in the preceding sentence had actually
occurred at such date or at the beginning of the periods covered thereby.


 


(b)                                 Since December 31,
2008, there has been no event or circumstance, either individually or in the
aggregate, that has had or would reasonably be expected to have a Material Adverse
Effect.


 


(c)                                  The forecasts
of consolidated balance sheets, income statements and cash flow statements of
the Parent for each fiscal year ending after the Closing Date until the third
anniversary of the Closing Date, copies of which have been furnished to the
Administrative Agent prior to the Closing Date, have been prepared in good
faith on the basis of the assumptions stated therein, which assumptions were
believed to be reasonable at the time of preparation of such forecasts, it
being understood that actual results may vary from such forecasts and that such
variations may be material.


 


Section 5.06                                Litigation.  Except as set forth on Schedule 5.06,
there is no action, suit, investigation, litigation or proceeding affecting any
Loan Party or any of its Subsidiaries, including any Environmental Action,
pending or threatened before any Governmental Authority or arbitrator or
purports to affect the legality, validity or enforceability of any Loan
Document or the consummation of the Transaction, that would be reasonably
likely to have a Material Adverse Effect.


 


Section 5.07                                Ownership of
Property; Liens.  (a) 
Each Loan Party and each of its Subsidiaries is the legal and beneficial owner
of the Collateral pledged by it free and clear of any Lien, except for the
Liens and security interest created or permitted under the Loan Documents
including, any Liens permitted under Section 7.01.


 


(b)                                 Each Loan Party
and each of its Subsidiaries has good and defensible title in fee simple to, or
valid leasehold interests in, or easements or other limited property interests
in, all real property necessary in the ordinary conduct of its business, free
and clear of all Liens except for defects in title that do not materially
interfere with its ability to conduct its business or to utilize such assets
for their intended purposes and Liens permitted by Section 7.01 and
except where the failure to have such title or other interest would not
reasonably be expected to have a Material Adverse Effect.  Set forth as Schedule 5.07(b)(i) hereto
is a complete and accurate list of all real property owned by the Loan Parties
and their Subsidiaries as of the Closing Date and set forth on Schedule 5.07(b)(ii) hereto
is a complete and accurate list of all leases of Real Property under which the
Loan Parties and their Subsidiaries are the lessees as of the Closing
Date.  Set forth on Schedule 5.07(b)(iii) is
a complete and accurate list of all Collateral Access Leases to which each Loan
Party is a party as of the Closing Date.


 


Section 5.08                                Perfection of
Security Interests.  Upon the
making of the filings and taking of the other actions set forth on Schedule 5.08,
all filings and other actions necessary or desirable to perfect and protect the
security interest in the Collateral created under the Collateral Documents have
been duly made or taken and are in full force and effect, and the Collateral
Documents create in favor of the Collateral Trustee for the benefit of the
Secured Parties a valid and, together with such filings and other actions, perfected
first priority security interest in the Collateral, securing the payment of the
Secured Obligations, subject to Liens permitted under Section 7.01
and all filings and other actions necessary or desirable to perfect and protect
such security interest have been duly taken.


 


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Section 5.09                                Environmental
Compliance.  Except as
would not be reasonably likely to result in a Material Adverse Effect:


 


(a)                                  Except as otherwise set
forth on Schedule 5.09(a), or as would not reasonably be expected
to result in a material liability, the operations and properties of each Loan
Party and each of its Subsidiaries comply in all material respects with all
applicable Environmental Laws and Environmental Permits, all past
non-compliance with such Environmental Laws and Environmental Permits has been
resolved without ongoing obligations or costs, and no circumstances exist that
would be reasonably likely to (A) form the basis of a material
Environmental Action against any Loan Party or any of its Subsidiaries or any
of their properties or (B) cause any such property to be subject to any
material restrictions on ownership, occupancy, use or transferability under any
Environmental Law.


 


(b)                                 Except as otherwise set
forth on Schedule 5.09(b) hereto, or as would not reasonably
be expected to result in a material liability, none of the properties currently
or formerly owned or operated by any Loan Party or any of its Subsidiaries is
listed or, to the Borrower’s knowledge, proposed for listing on the NPL or on
the CERCLIS or any analogous foreign, state or local list or is adjacent to any
such property; there are no and never have been any underground or aboveground
storage tanks other than in compliance with applicable Environmental Laws or
any surface impoundments, septic tanks, pits, sumps or lagoons in which
Hazardous Materials are being or have been treated, stored or disposed on any
property currently owned or operated by any Loan Party or any of its
Subsidiaries or, to the best of its knowledge, on any property formerly owned
or operated by any Loan Party or any of its Subsidiaries; other than in
compliance with applicable Environmental Laws there is no asbestos or
asbestos-containing material on any property currently owned or operated by any
Loan Party or any of its Subsidiaries; and Hazardous Materials have not been
released, discharged or disposed of by any Loan Party, any of its Subsidiaries
or any predecessor on any property currently or formerly owned or operated by
any Loan Party or any of its Subsidiaries.


 


(c)                                  Except as otherwise set
forth on Schedule 5.09(c) hereto, or as would not reasonably
be expected to result in a material liability, neither any Loan Party nor any
of its Subsidiaries is undertaking, and has not completed, either individually
or together with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or threatened
release, discharge or disposal of Hazardous Materials at any site, location or
operation, either voluntarily or pursuant to the order of any governmental or
regulatory authority or the requirements of any Environmental Law; and all
Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or operated by
any Loan Party or any of its Subsidiaries have been disposed of in a manner not
reasonably expected to result in material liability to any Loan Party or any of
its Subsidiaries.


 


(d)                                 Except as set forth in Schedule 5.09(d) or
as would not reasonably be expected to result, individually or in the
aggregate, a material liability, the Borrower and each of its Subsidiaries has
obtained all material Environmental Permits required for ownership and
operation of its property and business. 
Except as set forth in Schedule 5.09(d), neither the
Borrower nor any of its Subsidiaries has received any written notification
pursuant to any applicable Environmental Law or otherwise has knowledge that (A) any
material work, repairs, construction or Capital Expenditures are required to be
made in order to be in or continue to be in compliance with any applicable
Environmental Laws or any material Environmental Permit or (B) any
Environmental Permit is about to be reviewed, made subject to new limitations
or conditions, revoked, withdrawn or terminated.


 


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(e)                                  Except as set forth in Schedule 5.09(e),
or as would not reasonably be expected to result in a material liability, no Loan
Party nor any other Subsidiary has contractually assumed any liability or
obligation under or relating to any applicable Environmental Law.


 


Section 5.10                                Taxes.  (a)  Each Loan Party has timely filed
all material federal, provincial, state, municipal, foreign and other tax
returns and reports required to be filed, and have timely paid all material
federal, provincial, state, municipal, foreign and other 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.


 


(b)                                 Except as set
forth in Schedule 5.10(b), as of the Closing Date, to the knowledge of
the Borrower, there are no (i) material claims being asserted in writing
with respect to any taxes, (ii) presently effective material waivers or
extensions of statutes in writing with respect to any taxes, and (iii) tax
returns are being examined by, and no written notification of intention to
examine has been received from, the Internal Revenue Service or any other
taxing authority, in each case, with respect to the Loan Parties.


 


(c)                                  Neither any Loan
Party nor any of its Subsidiaries is party to any tax sharing agreement.


 


Section 5.11                                Compliance with
ERISA.  (a)  Except as set forth
in Schedule 5.11(a), each Plan is in material compliance with the
applicable provisions of ERISA, the Code and other federal or state Laws.


 


(b)                                 (i) No
ERISA Event has occurred or is reasonably expected to occur; (ii) neither
any Loan Party 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  et seq. or 4243
of ERISA with respect to a Multiemployer Plan; and (iii) neither any Loan
Party nor any ERISA Affiliate has engaged in a transaction that would be
subject to Section 4069 or 4212(c) of ERISA.


 


Section 5.12                                Labor Matters.  There are no strikes pending or threatened
against any Loan Party or any Subsidiary that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.  The hours worked and payments made to
employees of the Loan Parties and their Subsidiaries have not been in violation
in any material respect of the Fair Labor Standards Act or any other applicable
law dealing with such matters.  All
material payments due from the Loan Parties or their Subsidiaries or for which
any claim may be made against any Loan Party or its Subsidiary, on account of
wages and employee health and welfare insurance and other benefits have been
paid or accrued as a liability on the books of the Loan Parties or such
Subsidiary to the extent required by GAAP. 
The consummation of the Transactions will not give rise to a right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which any Loan Party or any of its
Subsidiaries (or any predecessor) is bound, other than collective bargaining
agreements that, individually or in the aggregate, are not material to the Loan
Parties and their Subsidiaries.


 


Section 5.13                                Subsidiaries; Equity
Interests.  As of the
Closing Date, neither the Borrower nor any other Loan Party has any
Subsidiaries other than those specifically disclosed in Schedule 5.13,
and all of the outstanding Equity Interests in the Borrower and its
Subsidiaries have been validly issued, are fully paid and nonassessable.  As of the Closing Date, Schedule 5.13
sets forth the name and jurisdiction of organization of each Subsidiary, (b) sets
forth the ownership interest of the Borrower and any of its Subsidiaries in
each of its Subsidiaries, including the percentage of such 


 


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ownership
and (c) identifies each Person the Equity Interests of which are required
to be pledged pursuant to the Collateral and Guarantee Requirement.


 


Section 5.14                                Margin
Regulations; Investment Company Act; USA PATRIOT Act.  (a)  No Loan Party is engaged nor will
it 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, and no proceeds of any Borrowings or drawings under any
Letter of Credit will be used for any purpose that violates Regulation U.


 


(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, as amended.


 


(c)                                  Neither the
Borrower nor any of its Subsidiaries is in violation of any laws relating to
terrorism or money laundering, including Executive Order No. 13224 on
Terrorist Financing, effective September 23, 2001 and the USA PATRIOT Act
and the use of the proceeds of the Advances and the Letters of Credit will not
violate the Trading with the Enemy Act, as amended or any of the foreign assets
control regulations of the United States Treasury Department (31 C.F.R.
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto.


 


Section 5.15                                Disclosure.  No report, financial statement, certificate
or other written information furnished by or on behalf of any Loan Party to any
Agent or any Lender in connection with the transactions contemplated hereby and
the negotiation of this Agreement or delivered hereunder or any other Loan
Document (as modified or supplemented by other information so furnished) when
taken as a whole contains when furnished 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 materially
misleading; provided, that, with respect to
projected financial information and pro  forma financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time of
preparation; it being understood that such projections may vary from actual
results and that such variances may be material.


 


Section 5.16                                Intellectual
Property.  Set forth on
Schedule 5.16 is a complete and accurate list of all Registered
patents, trademarks, service marks, domain names and copyrights, owned by each
Loan Party or any of its Subsidiaries as of the Closing Date, showing as of the
Closing Date the jurisdiction in which each such item of Registered
Intellectual Property is registered and the registration number.  Each of the Loan Parties and the other
Subsidiaries own or have the right to use, all of the trademarks, service
marks, trade names, domain names, copyrights, patents, know-how and other
intellectual property recognized under applicable Law (collectively, “Intellectual
Property”) that are material to the operation of their respective
businesses as currently conducted and to the knowledge of each Loan Party, no
such Intellectual Property is infringing upon any Intellectual Property rights
held by any other Person.


 


Section 5.17                                Solvency.  The Loan Parties, taken as a whole, are
Solvent.


 


Section 5.18                                No Default.  No Default has occurred and is continuing or
would result from any Borrowing or Credit Extension under this Agreement or
from the application of the proceeds therefrom.


 


Section 5.19                                Status of
Revolving Credit Facility as Senior Indebtedness.  The Obligations under the Revolving Credit
Facility constitute (i) senior Indebtedness of the Borrower and its 


 


67

















 


Subsidiaries,
and (ii) Indebtedness under a “Credit Facility” as such term is defined in
the Senior Indenture.


 


Section 5.20                                Use of Proceeds.  The Borrower will use the proceeds of the
Revolving Credit Loans and may request the issuance of Letters of Credit,
solely for general corporate purposes and, to the extent permitted under Section 7.02(j),
Permitted Acquisitions.


 


ARTICLE VI


 


AFFIRMATIVE COVENANTS


 


So long as any Lender shall
have any Revolving Credit Commitment hereunder, any Loan or other Obligation
hereunder which is accrued and payable 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 Section 6.01, Section 6.02
and Section 6.03) cause each Material Subsidiary to:


 


Section 6.01                                Financial
Statements.  Deliver to
the Administrative Agent for prompt further distribution to each Lender:


 


(a)                                  Annual Financials.  As soon as available, but in any event within
ninety (90) days after the end of each subsequent fiscal year of the Parent, a
consolidated balance sheet of the Parent and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of income or
operations, stockholders’ 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 registered public
accounting firm of nationally recognized standing, 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, together with a
comparison of actual figures against the forecasts for such fiscal year, all in
reasonable detail and prepared in accordance with GAAP, certified by a
Responsible Officer of the Borrower.


 


(b)                                 Quarterly Financials.  As soon as available, but in any event,
within forty-five (45) days after the end of each of the first three (3) fiscal
quarters of each fiscal year of the Parent (commencing with the first full
fiscal quarter ended after the Closing Date), a consolidated balance sheet of
the Parent and its Subsidiaries as at the end of such fiscal quarter, and the
related (i) consolidated statements of income or operations for such
fiscal quarter and for the portion of the fiscal year then ended and (ii) consolidated
statements of cash flows for the portion of the fiscal year then ended, setting
forth in each case (A) in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year and (B) a comparison of actual figures for such
fiscal quarter against the forecasts for such fiscal quarter, all in reasonable
detail and certified by a Responsible Officer of the Borrower as fairly
presenting in all material respects the financial condition, results of
operations, stockholders’ equity and cash flows of the Parent and its
Subsidiaries in accordance with GAAP, subject only to normal year-end
adjustments and the absence of footnotes.


 


(c)                                  [Reserved]


 


(d)                                 Simultaneously with the
delivery of each set of consolidated financial statements referred to in Section 6.01(a) and
(b) above the same consolidated financial statements prepared 


 


68

















 


in accordance with the Accounting Principles, together with a
reconciliation statement of GAAP against the Accounting Principles.


 


(e)                                  Annual Forecasts and Budget.  As soon as available and in any event within
sixty (60) days after the end of each Fiscal Year, forecasts prepared by
management of the Borrower, in form reasonably satisfactory to the
Administrative Agent, of balance sheets, income statements and cash flow
statements on a monthly basis for the Fiscal Year following such Fiscal Year
and on an annual basis for each Fiscal Year thereafter until the Maturity Date
together with a budget for each fiscal quarter of the Fiscal Year following
such Fiscal Year, in form reasonably satisfactory to the Administrative Agent.


 


(f)                                    Management Discussion and
Analysis Reports. 
Simultaneously with the delivery of each set of consolidated financial
statements referred to in Section 6.01(a), (b) and the
report referred to in Section 6.01(e), a report setting forth
management’s analysis and discussion of the condition (financial and otherwise)
operations, prospects and forecasts in respect of the business of the Borrower
and its Subsidiaries.  The Borrower
shall, not later than 20 days following the Lenders’ request, schedule one
telephonic conference per applicable period with management of the Borrower to
discuss the contents of the relevant reports.


 


Section 6.02                                Certificates;
Reports; Other Information.  Deliver to the Administrative Agent for
prompt further distribution to each Lender:


 


(a)                                  upon delivery of the
financial statements referred to in Section 6.01(a) and (b) and
a duly completed Compliance Certificate signed by a Responsible Officer of the
Parent;


 


(b)                                 promptly after the same are
publicly available, copies of all annual, regular, periodic and special reports
and registration statements which the Parent files with the SEC or with any
Governmental Authority that may be substituted therefor (other than amendments
to any registration statement (to the extent such registration statement, in
the form it became effective, is delivered), exhibits to any registration
statement and, if applicable, any registration statement on Form S-8) and
in any case not otherwise required to be delivered to the Administrative Agent
pursuant hereto;


 


(c)                                  promptly after the
furnishing thereof, copies of any material requests or material notices
received by any Loan Party or any of its Subsidiaries (other than in the
ordinary course of business);


 


(d)                                 together with the delivery of
the financial statements pursuant to Section 6.01(a) and each
Compliance Certificate pursuant to Section 6.02(a), (i) a
description of each event, condition or circumstance during the last fiscal
quarter covered by such Compliance Certificate requiring a prepayment under Section 2.05(b),
(ii) a list of Subsidiaries that identifies each Subsidiary as a Material
Subsidiary or an Immaterial Subsidiary as of the date of delivery of such
Compliance Certificate or a confirmation that there is no change in such
information since the later of the Closing Date or the date of the last such
list and (iii) such other information required by the Compliance
Certificate; and


 


(e)                                  promptly, such additional
information regarding the business, legal, financial or corporate affairs of
any Loan Party or any Material Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender through the
Administrative Agent may from time to time reasonably request.


 


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Documents required to be
delivered pursuant to Section 6.01(a), (b), (e) or
Section 6.02(c) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which
the Parent posts such documents, or provides a link thereto on the Parent’s
website on the Internet at the website address listed on Schedule 11.02;
or (ii) on which such documents are posted on the Parent’s behalf on
IntraLinks/IntraAgency or another relevant 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) upon written request by the
Administrative Agent, the Borrower shall deliver paper copies of such documents
to the Administrative Agent for further distribution to each Lender until a
written request to cease delivering paper copies is given by the Administrative
Agent and (ii) the Borrower shall notify (which may be by facsimile or
electronic mail) the Administrative Agent 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 the foregoing,
the Borrower shall deliver originally executed Compliance Certificates to the
Administrative Agent (in addition to the electronic copies pursuant to the
foregoing).  Each Lender shall be solely
responsible for timely accessing posted documents or requesting delivery of
paper copies of such documents from the Administrative Agent and maintaining
its copies of such documents.


 


Section 6.03                                Notice
Requirements; Other Information.  Promptly after a Responsible Officer obtains
knowledge thereof, notify, or, as soon as available, provide to the
Administrative Agent, for prompt further distribution to each Lender, as the
case may be:


 


(a)                                  of the occurrence of any
Default, which notice shall specify the nature thereof, the period of existence
thereof and what action the Borrower proposes to take with respect thereto;


 


(b)                                 the occurrence of any matter
that has resulted or could reasonably be expected to result in a Material
Adverse Effect;


 


(c)                                  the commencement of, or any
material development in, any litigation or governmental proceeding (including without
limitation pursuant to any applicable Environmental Laws) pending against the
Borrower or any of the Subsidiaries that would reasonably be expected to be
determined adversely and, if so determined, to result in a Material Adverse
Effect;


 


(d)                                 of the occurrence of any
ERISA Event or other labor related matters, in each case, above the Threshold
Amount;


 


(e)                                  the occurrence of any event
triggering a Collateral and Guarantee Requirement under Section 6.11;


 


(f)                                    copies of all notices,
requests and other documents received by any Loan Party or any of its
Subsidiaries under or pursuant to any Mortgaged Agreement or instrument,
indenture, loan or credit or similar agreement regarding or related to any
breach or default by any party thereto or any other event that would reasonably
be expected to have a Material Adverse Effect, and from time to time upon
request by the Administrative Agent, copies of any amendment, modification or
waiver of any provision of any Mortgaged Agreement or instrument, indenture, loan
or credit or similar agreement and such information and reports regarding the
Mortgaged Agreements and such instruments, indentures and loan and credit and
similar agreements as the Administrative Agent may reasonably request;


 


(g)                                 as soon as available and in
any event upon delivery of the financial statements required to be delivered
pursuant to Section 6.01(b), an updated Perfection Certificate with



 


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schedules updating the information contained therein to the extent any
information contained therein must be updated or changed in order to make such
information accurate and complete;


 


(h)                                 of a tax event or liability
not previously disclosed in writing by the Borrower to the Administrative Agent
which would reasonably be expected to result in a material liability, together
with any other information as may be reasonably requested by the Administrative
Agent to enable the Administrative Agent to evaluate such matters;


 


(i)                                     any event or circumstance
causing the Parent to cease to, directly or indirectly, own the Borrower or the
occurrence of a Change of Control;


 


(j)                                     of any change (i) in
any Loan Party’s corporate name, (ii) any Loan Party’s identity and
corporate structure or (iii) any Loan Party’s taxpayer identification
number.  The Borrower agrees that it will
not, and will not permit any of its Subsidiaries to, permit or make any change
referred to in this Section 6.03(j) unless it shall have
provided not less than 30 days prior notice thereof to Administrative Agent and
the Collateral Trustee in order that all filings may have been made under the
Uniform Commercial Code within the time periods provided therein or otherwise
that are required in order for the Collateral Trustee to continue at all times
following such change to have a valid, legal and perfected first priority
security interest in the Collateral and for the Collateral at all times
following such change to have a valid, legal and perfected first priority
security interest as contemplated by the Collateral Documents; and


 


(k)                                  Immediately upon the
discovery of any inaccuracy, miscalculation or misstatement contained in any
Compliance Certificate or other certificate provided for any period that
affects any financial or other calculations, representations or warranties or
other statements impacting any provision of this Agreement and any other Loan
Document in any material respect, notice of such inaccuracy, miscalculation or
misstatement together with an updated certificate including the corrected information,
calculation or statement, as applicable.


 


Section 6.04                                Environmental
Matters.  (a)  Comply, cause each
of its Subsidiaries to comply and use commercially reasonable efforts to cause
all lessees and other Persons operating or occupying its properties to comply,
in all material respects, with all applicable Environmental Laws and
Environmental Permits; obtain and renew, and cause each of its Subsidiaries to
obtain and renew, all Environmental Permits necessary for its operations and
properties; and conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other action reasonably required to remove and clean up all
releases or threatened releases of Hazardous Materials from any of its
properties, as required under, and in accordance with the requirements of all
Environmental Laws; provided, however, that neither the Borrower
nor any of its Subsidiaries shall be required to undertake any such cleanup,
removal, remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.


 


(b)                                 In the event
any assessments requested by the Administrative Agent identify any material
non-compliance with Environmental Law relating to the sites specified in such
reports (the “Specified Sites”) that could reasonably be expected to
result in any Environmental Liabilities in excess of the Threshold Amount with
respect to the Specified Sites as reasonably determined by the Lenders, the
Borrower shall (i) provide the Lenders with a plan to remedy such
non-compliance (a “Specified Remediation Plan”), (ii) shall
implement any changes or additions to such Specified Remediation Plan as may be
reasonably requested by the Lenders and (iii) shall implement such
Specified Remediation Plan or cure any such non-compliance within 180 days of
such Specified Remediation Plan being approved by the Lenders or within such
other time as the Lenders may agree.


 


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(c)                                  Environmental
Reporting Requirements. 
Promptly after a Responsible Officer obtains knowledge thereof, notify
the Administrative Agent of or, as soon as practicable after receipt thereof,
deliver to the Administrative Agent, for prompt further distribution to each
Lender, material documents concerning:


 


(i)                                     any
Environmental Action against or of any non-compliance by any Loan Party or any
of its Subsidiaries with any Environmental Law or Environmental Permit that
would (1) reasonably be expected to result in a material liability or (2) cause
any Mortgaged Properties to be subject to any additional restrictions on
ownership, occupancy, use or transferability under any Environmental Law;


 


(ii)                                  (1) any
occurrence of any release or threatened release of Hazardous Materials required
to be reported to any Governmental Authority under applicable Environmental
Law, (2) any remedial actions taken by any Loan Party or its Subsidiaries
in respect of any such release or threatened release that could reasonably be
expected to result in an Environmental Action or (3) the Loan Parties’
discovery of any occurrence of or condition on any real property adjoining or
in the vicinity of any site or facility that would be reasonably expected to
cause such site or facility or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use thereof under
any Environmental Laws, in each case where such event or occurrence would
reasonably be expected to have a Material Adverse Effect;


 


(iii)                               copies of any
and all material written communications with respect to (1) any
Environmental Action, (2) any release or threatened release or
non-compliance with any Environmental Law required to be reported to any
Governmental Authority and (3) any request for information from a
Governmental Authority that suggests such Governmental Authority is
investigating the potential responsibility of the Borrower or any of its
Subsidiaries as a potentially responsible party, in each case where such event
or occurrence would reasonably be expected to have a Material Adverse Effect;


 


(iv)                              (1) any
Permitted Acquisition that could reasonably be expected to (A) expose the
Borrower or any of its Subsidiaries to, or result in, material Environmental
Actions or (B) affect the ability of the Borrower and its Subsidiaries to
maintain in full force and effect all Governmental Authorizations and
Environmental Permits required for the continued operations of their respective
businesses and (2) any action proposed to be taken by the Borrower or any
of its Subsidiaries to modify current operations in a manner that would
reasonably be expected to subject the Borrower and its Subsidiaries to any
material additional obligations or requirements under Environmental Laws;


 


(v)                                 copies of all environmental
reports, audits or analyses (whether produced by the Borrower or its
Subsidiaries or any third party or Governmental Authority) in respect of any
sites owned, leased or operated by the Borrower and its Subsidiaries to the
extent requested by the Administrative Agent or any Lender upon a request to
the Administrative Agent;


 


(vi)                              upon a good
faith belief that a release of Hazardous Materials or a violation of
Environmental Law reasonably likely to result in a fine or penalty in excess of
the Threshold Amount has occurred and within 60 days after such request and at
the expense of the Borrower, any additional environmental site assessment
reports for any of its or its Subsidiaries’ properties described in such
request prepared by an environmental consulting firm acceptable to the
Administrative Agent, indicating the presence or 


 


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absence of such Hazardous Materials and the
estimated cost of any compliance, removal or remedial action in connection with
any such Hazardous Materials on such properties; without limiting the
generality of the foregoing, if the Administrative Agent reasonably determines
at any time that a material risk exists that any such report will not be
provided within the time referred to above, the Administrative Agent may retain
an environmental consulting firm to prepare such report at the expense of the
Borrower, and the Borrower hereby grants and agrees to cause any Subsidiary
that owns any property described in such request to grant at the time of such
request to the Administrative Agent, the Lenders, such firm and any agents or
representatives thereof an irrevocable non-exclusive license, subject to the
rights of tenants, to enter onto their respective properties to undertake such
an assessment; and


 


(vii)                           any such other
documents and information as the Administrative Agent may reasonably request
from time to time.


 


Section 6.05                                Maintenance of
Existence.  (a) 
Preserve, renew and maintain in full force and effect its legal existence,
structure and name under the Laws of the jurisdiction of its organization and (b) take
all commercially reasonable action to maintain all rights, privileges
(including its good standing), permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except (i) to the extent
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Borrower and its
Subsidiaries and to the extent that the loss thereof shall not be
disadvantageous to Borrower, its Subsidiaries or the Lenders in any material
respect and (ii) pursuant to a transaction permitted by Section 7.04
or Section 7.05.


 


Section 6.06                                Maintenance of
Properties.  Maintain,
preserve and protect all of its material properties and equipment that are used
or useful in the operation of its business in good working order, repair and
condition, ordinary wear and tear excepted and casualty or condemnation
excepted, and make all commercially reasonable and appropriate repairs,
renewals, replacements, modifications, improvements, upgrades, extensions and
additions thereof except where failure to do so would not reasonably be
expected to have a Material Adverse Effect.


 


Section 6.07                                Maintenance of
Insurance.  Maintain
with financially sound and reputable insurance companies (in the good faith
judgment of management), 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 reasonable and customary for
similarly situated Persons engaged in the same or similar businesses as the
Borrower and its Subsidiaries) as are customarily carried by Person engaged in
similar businesses and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates.


 


Section 6.08                                Compliance with
Laws.  Comply in all material
respects with the requirements of all Laws and all orders, writs, injunctions,
decrees and judgments applicable to it or to its business or property
(including without limitation Environmental Laws and ERISA).


 


Section 6.09                                Books and
Records.  Maintain proper books of
record and account, in which entries that are full, true and correct in all
material respects and are in conformity with GAAP consistently applied shall be
made of all material financial transactions and matters involving the assets
and business of the Borrower or such Subsidiary, as the case may be.


 


Section 6.10                                Inspection
Rights.  Permit representatives and
independent contractors of the Administrative Agent and each Lender to visit
and inspect any properties of the Borrower and its 


 


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Subsidiaries
(subject, in the case of third party customer sites, to customary access
agreements) and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants, all at the reasonable
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 excluding any such
visits and inspections during the occurrence and continuance of an Event of
Default, (i) only the Administrative Agent on behalf of the Lenders may
exercise rights of the Administrative Agent and the Lenders under this Section 6.10
and (ii) the Administrative Agent shall not exercise such rights more than
two (2) times during any calendar year absent the existence of an Event of
Default and only one (1) such visit shall be at the Borrower’s expense; provided,
further, 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 upon reasonable advance notice.  The Administrative and the Lenders shall give
the Borrower the opportunity to participate in any discussions with the
Borrower’s independent public accountants to the extent reasonably
feasible.  Neither the Borrower nor any
Subsidiary shall be required to disclose to the Administrative Agent or any
Lender any information that, in the opinion of counsel to the Borrower or such
Subsidiary, is prohibited by Law to be disclosed, is subject to attorney client
privilege or constitutes attorney work product or the disclosure of which would
cause a material breach of a binding non-disclosure agreement with a third
party to the extent such agreement is not made in contemplation of the
avoidance of this Section 6.10.


 


Section 6.11                                Covenant to
Guarantee Obligations and Give Security.  Upon (x) the formation or acquisition of
any new direct or indirect Subsidiaries by any Loan Party or (y) the
acquisition of any property by any Loan Party, and such property, in the
judgment of the Collateral Trustee, shall not already be subject to a perfected
first priority security interest in favor of the Collateral Trustee for the
benefit of the Secured Parties, then each Loan Party shall, in each case at
such Loan Party’s expense:


 


(a)                                  in connection with the
formation or acquisition of a Subsidiary, within 30 days after such formation
or acquisition (or such longer period as the Collateral Trustee may agree in
its reasonable discretion), cause each such Subsidiary that is required to be a
Guarantor pursuant to the Collateral and Guarantee Requirement, and cause each
direct and indirect parent of such Subsidiary (if it has not already done so),
to duly execute and deliver to the Collateral Trustee a guaranty or guaranty
supplement, in form and substance reasonably satisfactory to the Collateral
Trustee, guaranteeing the other Loan Parties’ obligations under the Loan
Documents,


 


(b)                                 within 10 days after (or
such longer period as the Collateral Trustee may agree in its reasonable
discretion) such formation or acquisition, furnish to the Collateral Trustee a
description of the real properties and personal properties of such Subsidiary
that is required to become a Guarantor under the Collateral and Guarantee
Requirement or the real properties and personal properties so acquired, in each
case in detail reasonably satisfactory to the Collateral Trustee,


 


(c)                                  within 30 days after (or
such longer period as the Collateral Trustee may agree in its reasonable
discretion) (i) acquisition of property by any Loan Party, duly execute
and deliver, and cause each Loan Party to duly execute and deliver, to the Collateral
Trustee such additional pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and other security
agreements (which, to the extent applicable and if relating to the type of
Collateral the granting of a security interest in which can be effected through
the execution of a Security Agreement Supplement or Intellectual Security
Agreement Supplement (each as defined in the Security Agreement), shall be
effected in such manner), as specified by, and in form and substance reasonably
satisfactory to the Collateral Trustee, securing payment of 


 


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all the Obligations of such Loan Party under the Loan Documents and
constituting Liens on all such properties and (ii) such formation or
acquisition of any new Subsidiary that is required to become a Guarantor under
the Collateral and Guarantee Requirement, duly execute and deliver and cause
such Subsidiary that is required to become a Guarantor under the Collateral and
Guarantee Requirement and each Loan Party acquiring Equity Interests in such
Subsidiary to duly execute and deliver to the Collateral Trustee Mortgages,
pledges, assignments, security agreement supplements, intellectual property
security agreement supplements and other security agreements (which, to the
extent applicable and if relating to the type of Collateral the granting of a
security interest in which can be effected through the execution of a Security
Agreement Supplement or Intellectual Security Agreement Supplement shall be
effected in such manner) as specified by, and in form and substance reasonably
satisfactory to, the Collateral Trustee, securing payment of all of the
obligations of such Subsidiary or Loan Party, respectively, under the Loan Documents,


 


(d)                                 within 30 days (or such
longer period as the Collateral Trustee may agree in its reasonable discretion)
after such formation or acquisition, take, and cause each Loan Party and each
newly acquired or newly formed Subsidiary that is required to become a
Guarantor under the Collateral and Guarantee Requirement to take or cause to be
taken, whatever action (including, without limitation, the recording of
Mortgages, the filing of Uniform Commercial Code financing statements, the
giving of notices and the endorsement of notices on title documents) may be
necessary or advisable in the reasonable opinion of the Collateral Trustee to
vest in the Collateral Trustee (or in any representative of the Collateral
Trustee designated by it) valid and subsisting Liens on the properties
purported to be subject to the Mortgages, pledges, assignments, security
agreement supplements, intellectual property security agreement supplements and
security agreements delivered pursuant to this Section 6.11,
enforceable against all third parties in accordance with their terms,


 


(e)                                  within 30 days (or such
longer period as the Collateral Trustee may agree in its reasonable discretion)
after such formation or acquisition, deliver to the Collateral Trustee, upon
the request of the Collateral Trustee in its reasonable discretion, a signed
copy of a favorable opinion in customary form, addressed to the Collateral
Trustee and the other Secured Parties, of counsel for the Loan Parties
acceptable to the Collateral Trustee as to (1) the matters contained in clauses (a),
(c) and (d) above, (2) such guaranties, guaranty
supplements, Mortgages, pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and security agreements
being legal, valid and binding obligations of each Loan Party thereto
enforceable in accordance with their terms, as to the matters contained in clause (d) above,
(3) such recordings, filings, notices, endorsements and other actions
being sufficient to create valid perfected Liens on such properties, and (4) matters
of corporate formalities as the Collateral Trustee may request and such other
matters as the Collateral Trustee may reasonably request,


 


(f)                                    at any time and from time to
time, promptly execute and deliver, and cause each Loan Party and each newly
acquired or newly formed Subsidiary that is required to become a Guarantor
under the Collateral and Guarantee Requirement to execute and deliver, any and
all further instruments and documents and take, and cause each Loan Party and
each newly acquired or newly formed Subsidiary that is required to become a
Guarantor under the Collateral and Guarantee Requirement to take, all such
other action as the Collateral Trustee may deem reasonably necessary or
desirable in obtaining the full benefits of, or in perfecting and preserving
the Liens of, such guaranties, Mortgages, pledges, assignments, security
agreement supplements, intellectual property security agreement supplements and
security agreements, and


 


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(g)                                 (i)  the Borrower shall
provide the security interests and Guarantees set forth on Schedule 1
on or prior to the dates corresponding to such security interests and
Guarantees set forth on Schedule 1; and


 


(ii)                                  after the
Closing Date, promptly within sixty (60) days after the acquisition of any real
property by any Loan Party, if such real property shall not already be subject
to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the
Borrower shall give notice thereof to the Administrative Agent and promptly
thereafter shall cause such real property to be subjected to a Lien to the
extent required by the Collateral and Guarantee Requirement, and otherwise
satisfy the Collateral and Guarantee Requirement with respect to such real
property, and will take, or cause the relevant Loan Party to take, such actions
as shall be necessary or reasonably requested by the Administrative Agent or
the Collateral Trustee to grant and perfect or record such Lien.


 


(iii)                               In the case of
any Collateral Access Lease entered into after the Closing Date, comply with
the requirements set forth in Section 6.19 with respect to such
lease during a period of sixty (60) days following the date of effectiveness of
such lease.


 


Section 6.12                                Use of Proceeds.  Use the proceeds of any Credit Extension,
whether directly or indirectly, in a manner consistent with the uses set forth
in the Preliminary Statements to this Agreement and as set forth in Section 5.20.


 


Section 6.13                                Further Assurances
and Post-Closing Undertakings.  (a)  General Assurances.  (i)  Promptly upon request by any Agent,
or any Lender through the Administrative Agent, correct, and cause each of its
Subsidiaries promptly to correct, any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment, filing or
recordation thereof.


 


(ii)                                  Promptly upon
request by any Agent, or any Lender through the Administrative Agent, do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, conveyances, pledge
agreements, Mortgages, deeds of trust, trust deeds, assignments, financing
statements and continuations thereof, termination statements, notices of
assignment, transfers, certificates, assurances and other instruments as any
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 now or hereafter 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
Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do
so.


 


(b)                                 Account Control
Agreements.  Within 60
days following the Closing Date, provide to the Collateral Trustee duly
executed account control agreements with respect to pledged deposit accounts
(other than accounts constituting payroll and accounts holding cash and Cash
Equivalents of not more than $150,000 in the aggregate for more than two (2) consecutive
Business Days for all Loan Parties) in form and substance reasonably
satisfactory to the Collateral Trustee.


 


(c)                                  Certain Foreign
Subsidiaries.  Upon the
written request of the Administrative Agent following a Change in Law pursuant
to which the Administrative Agent reasonably determines  


 


76

















 


that the circumstances
causing the undistributed earnings of any Foreign Subsidiary (as determined for
United States federal income tax purposes) to be treated as a deemed dividend
to the Borrower or any Domestic Subsidiary for U.S. federal income tax purposes
or such other circumstances no longer subject the Borrower or any Domestic
Subsidiary to liability for any additional United States income taxes by virtue
of Section 956 of the Code or any other applicable provision of the Code (“CFC
Pledge Restrictions”), unless (x) counsel for the Company reasonably
acceptable to the Administrative Agent provides, within 60 days after such
written request of the Administrative Agent, a written opinion addressed to the
Borrower and the Administrative Agent, in form and substance mutually
satisfactory to the Borrower and the Administrative Agent to the effect that,
with respect to any direct Foreign Subsidiary of any Loan Party that has not
already had all of the Equity Interests issued by it pledged pursuant to the
Collateral Documents, a pledge of more than 66.0% of the total combined voting
power of all classes of Equity Interests of such Foreign Subsidiary entitled to
vote could reasonably be expected, despite such Change in Law, to continue to
be subject to a CFC Pledge Restriction, then (y) that portion of such
Foreign Subsidiary’s outstanding Equity Interests issued by such Foreign
Subsidiary not theretofore pledged pursuant to the relevant Collateral Document
shall be pledged to the Collateral Trustee for the benefit of the Secured
Parties pursuant to a supplement to the relevant Collateral Document (or
another pledge agreement in substantially identical form, if needed) to the
extent that entering into such Collateral Document is permitted by the Laws of
the respective foreign jurisdiction and with all documents delivered pursuant
to this Section 6.13(c) to be in form, scope and substance
reasonably satisfactory to the Collateral Trustee.


 


Section 6.14                                Taxes.  The Company will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any properties belonging to it, in each case on a timely basis, and all
lawful claims which, if unpaid, may reasonably be expected to become a lien or
charge upon any properties of the Company or its Subsidiaries not otherwise
permitted under this Agreement; provided,
that, neither the Company nor any of its Subsidiaries shall be required to pay
any such tax, assessment, charge, levy or claim which is being contested in
good faith and by proper proceedings if it has maintained adequate reserves
with respect thereto in accordance with GAAP unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable against
its other creditors.


 


Section 6.15                                End of Fiscal
Years; Fiscal Quarters.  The
Borrower will cause (i) its and Parent’s fiscal year to end on or about December 31
of each calendar year and (ii) its and Parent’s fiscal quarters to end on
or about March 31, June 30, September 30 and December 31 of
each calendar year, in each case unless otherwise approved by the
Administrative Agent.


 


Section 6.16                                Material
Contracts.  Comply with
all the terms and provisions of each Material Contract, except to the extent such
failure to comply would not reasonably be expected to have a Material Adverse
Effect.


 


Section 6.17                                Ratings.  Use reasonable efforts to maintain at all
times (a) corporate family ratings from Moody’s and corporate credit
ratings from S&P and (b) ratings for the Revolving Credit Facility
from Moody’s and S&P.  The Borrower
will promptly notify the Administrative Agent in the event of a downgrade in
any of the foregoing ratings.


 


Section 6.18                                Compliance with
Terms of Leaseholds.  Comply with
all material obligations in respect of all leases of real property to which the
Loan Parties or their respective Subsidiaries is a party, except to the extent
such failure to comply would not reasonably be expected to have a Material
Adverse Effect.


 


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Section 6.19                                Collateral
Access Agreements.  During the
60 day period following the Closing Date, the Borrower shall use commercially
reasonable efforts to obtain collateral access agreements, in form and
substance reasonably satisfactory to the Collateral Trustee, for any Collateral
Access Leases, in each case executed by the lessor under the applicable real
property lease.  Notwithstanding anything
to the contrary in this Agreement, if the Borrower shall fail to obtain the collateral
access agreement with respect to any such real property lease within the
specified time period, after using commercially reasonable efforts to do so,
the Borrower shall have no further obligation to execute and deliver to the
Collateral Trustee the same and the condition set forth in this Section 6.19
with respect thereto shall be deemed to be satisfied by the Borrower.  The Borrower shall promptly, upon request,
provide the Administrative Agent with a report in reasonable detail summarizing
the commercially reasonable efforts undertaken to obtain the collateral access
agreements referenced in this Section 6.19.


 


ARTICLE VII


 


NEGATIVE COVENANTS


 


So long as any Lender shall
have any Commitment hereunder, any Loan or other Obligation hereunder which is
accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall not, nor shall it permit any of
its Subsidiaries to, directly or indirectly:


 


Section 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, including Liens to secure the Senior Notes under the terms of the
Collateral Documents;


 


(b)                                 Liens existing on the date
hereof and listed on Schedule 7.01(b);


 


(c)                                  Liens for taxes, assessments
or governmental charges which are not overdue for a period of more than thirty
(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 to the extent required in
accordance with GAAP;


 


(d)                                 statutory or common law
Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen,
construction contractors or other like Liens arising in the ordinary course of
business which secure amounts not overdue for a period of more than thirty (30)
days or if more than thirty (30) days overdue, are unfiled (or if filed have
been discharged or stayed) and no other action has been taken to enforce such
Lien 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 to the extent required in accordance with
GAAP;


 


(e)                                  (i) pledges or deposits
in the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other social security legislation and (ii) pledges
and deposits in the ordinary course of business securing liability for
reimbursement or indemnification obligations of (including obligations in
respect of letters of credit or bank guarantees for the benefit of) insurance
carriers providing property, casualty or liability insurance to the Borrower or
any Subsidiary;


 


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(f)                                    deposits to secure the
performance of bids, trade contracts, governmental contracts and leases (other
than Indebtedness for borrowed money), statutory obligations, surety, stay,
customs and appeal bonds, performance bonds and other obligations of a like
nature (including those to secure health, safety and environmental obligations)
incurred in the ordinary course of business in an aggregate amount not to
exceed $25,000,000;


 


(g)                                 easements, rights-of-way,
restrictions, encroachments, protrusions and other similar encumbrances and
minor title defects affecting real property which, in the aggregate, do not in
any case materially interfere with the ordinary conduct of the business of the
Borrower or any Material Subsidiary;


 


(h)                                 Liens securing judgments for
the payment of money not constituting an Event of Default under Section 9.01(h);


 


(i)                                     Liens securing Indebtedness
permitted under Section 7.03(e); provided,
that, (i) such Liens attach concurrently with or within 120 days after the
acquisition, construction, repair, replacement or improvement (as applicable)
of the property subject to such Liens, (ii) such Liens do not at any time encumber
any property other than the property financed by such Indebtedness,
replacements thereof and additions and accessions to such property and the
proceeds and the products thereof and customary security deposits, and (iii) with
respect to Capitalized Leases, such Liens do not at any time extend to or cover
any assets (except for additions and accessions to such assets, replacements
and products thereof and customary security deposits) other than the assets
subject to such Capitalized Leases;


 


(j)                                     leases, licenses, subleases
or sublicenses and Liens on the property covered thereby, in each case, granted
to others in the ordinary course of business which do not (i) interfere in
any material respect with the business of the Borrower or any Material Subsidiary
or (ii) secure any Indebtedness;


 


(k)                                  Liens (i) on cash
advances in favor of the seller of any property to be acquired in an Investment
permitted pursuant to Section 7.02(j) to be applied against
the purchase price for such Investment and (ii) consisting of an agreement
to Dispose of any property in a Disposition permitted under Section 7.05,
in each case, solely to the extent such Investment or Disposition, as the case
may be, would have been permitted on the date of the creation of such Lien;


 


(l)                                     Liens in favor of the
Borrower or any Subsidiary securing Indebtedness permitted under Section 7.03(d);
provided, that, no such Lien on assets of Loan Parties shall be
permitted to secure Indebtedness owed by a Loan Party to any Non-Loan Party
Subsidiary;


 


(m)                               Liens existing on property
at the time of its acquisition or existing on the property of any Person at the
time such Person becomes a Subsidiary, in each case after the date hereof; provided, that, (i) such Lien was not
created in contemplation of such acquisition or such Person becoming a
Subsidiary, (ii) such Lien does not extend to or cover any other assets or
property (other than the proceeds or products thereof and other than
after-acquired property subjected to a Lien securing Indebtedness and other
obligations incurred prior to such time and which Indebtedness and other
obligations are permitted hereunder that require, pursuant to their terms at
such time, a pledge of after-acquired property, it being understood that such
requirement shall not be permitted to apply to any property to which such
requirement would not have applied but for such acquisition), and (iii) the
Indebtedness secured thereby is permitted under Section 7.03(e) or
(g);


 


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(n)                                 any interest or title of a
lessor or sublessor under leases or subleases entered into by the Borrower or
any of its Subsidiaries in the ordinary course of business;


 


(o)                                 Liens that are contractual
rights of set-off (i) relating to the establishment of depository
relations with banks or other financial institutions not given in connection
with the incurrence of Indebtedness, (ii) relating to pooled deposit or
sweep accounts of the Borrower or any Subsidiary to permit satisfaction of
overdraft or similar obligations incurred in the ordinary course of business of
the Borrower or its Subsidiaries or (iii) relating to purchase orders and
other agreements entered into with customers of the Borrower or any Subsidiary
in the ordinary course of business;


 


(p)                                 any zoning or similar law or
right reserved to or vested in any Governmental Authority to control or
regulate the use of any real property that does not materially interfere with
the ordinary conduct of the business of the Borrower or any Material
Subsidiary;


 


(q)                                 Liens on specific items of
inventory or other goods and the proceeds thereof securing such Person’s
obligations in respect of documentary letters of credit issued for the account
of such Person to facilitate the purchase, shipment or storage of such inventory
or goods; or


 


(r)                                    the modification,
replacement, renewal or extension of any Lien permitted by clauses (b),
(i) and (m) of this Section 7.01; provided, that, (i) the Lien does not
extend to any additional property other than (A) after-acquired property that
is affixed or incorporated into the property covered by such Lien or financed
by Indebtedness permitted under Section 7.03, and (B) proceeds
and products thereof; and (ii) the renewal, extension or refinancing of
the obligations secured or benefited by such Liens is permitted by Section 7.03;


 


(s)                                  ground leases in respect of
real property on which facilities owned or leased by the Borrower or any of its
Subsidiaries are located;


 


(t)                                    Liens on property of a
Non-Loan Party securing Indebtedness of Non-Loan Party Subsidiaries permitted
to be incurred by Section 7.03;


 


(u)                                 Liens solely on any cash
earnest money deposits made by the Borrower or any of its Subsidiaries in
connection with any letter of intent or purchase agreement permitted hereunder;


 


(v)                                 Liens securing Indebtedness
permitted pursuant to Section 7.03(n); and


 


(w)                               licenses of patents,
trademarks and other Intellectual Property rights granted by the Borrower and
its Subsidiaries in the ordinary course of business and not interfering in any
material respect with the ordinary conduct of the business of the borrower or
such Subsidiary.


 


Section 7.02                                Investments.  Make any Investments, except:


 


(a)                                  Investments by the Borrower
or any of its Subsidiaries in Cash Equivalents;


 


(b)                                 loans or advances to officers,
directors, partners and employees of the Borrower or its Subsidiaries (i) for
reasonable and customary business-related travel, entertainment, relocation and
analogous ordinary business purposes in an amount not to exceed $1,000,000 in
the aggregate outstanding at any time and (ii) in connection with such
Person’s purchase of 


 


80

















 


Equity Interests of the Borrower (provided, that, the amount of
such loans and advances shall be contributed to the Borrower in cash as common
equity) in an aggregate principal amount outstanding not to exceed $1,000,000
in the aggregate;


 


(c)                                  asset purchases (including
purchases of inventory, equipment, supplies and materials) and the licensing or
contribution of intellectual property pursuant to joint marketing arrangements
with other Persons, in each case in the ordinary course of business;


 


(d)                                 Investments (i) by any
Loan Party in any other Loan Party, (ii) by any Subsidiary in any Loan
Party and (iii) by any Non-Loan Party in any other Non-Loan Party;


 


(e)                                  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;


 


(f)                                    Investments consisting of
Liens, Indebtedness, fundamental changes, Dispositions, Restricted Payments and
Capital Expenditures permitted under Section 7.01, Section 7.03,
Section 7.04, Section 7.05, Section 7.06,
and Section 7.16, respectively; provided,  however,
that no Investments may be made solely pursuant to this Section 7.02(f);


 


(g)                                 Investments consisting of
any modification, replacement, renewal, reinvestment or extension of any
Investment existing on the date hereof; provided,
that, the amount of any Investment permitted pursuant to this Section 7.02(g) is
not increased from the amount of such Investment on the Closing Date except
pursuant to the terms of such Investment as of the Closing Date or as otherwise
permitted by this Section 7.02;


 


(h)                                 Investments in Swap
Contracts permitted under Section 7.03(f);


 


(i)                                     promissory notes and other
non-cash consideration received in connection with Dispositions permitted by Section 7.05;


 


(j)                                     the purchase or other
acquisition of all or substantially all of the property and assets or
businesses of any Person or of assets constituting a business unit, line of
business or division of such Person, or Equity Interests in a Person that, upon
the consummation thereof, will be a Wholly-owned Subsidiary of the Borrower
(including as a result of a merger or consolidation) (each, a “Permitted
Acquisition”); provided, that:


 


(i)                                     such Person so
purchased or otherwise acquired and the lines of business so purchased or
acquired shall be in compliance with the requirements of Section 7.07;


 


(ii)                                  the Borrower,
the applicable Loan Parties and such newly-acquired Subsidiary shall comply
with the Collateral and Guarantee Requirements and the requirements of Section 6.11;


 


(iii)                               all
transactions in connection with such acquisition shall be consummated, in all
material respects, in accordance with Law and in conformity with all applicable
Governmental Authorizations and shall be subject to all necessary corporate and
board approvals;


 


(iv)                              immediately
before and immediately after giving Pro  Forma Effect to any such
purchase or other acquisition, no Default shall have occurred and be
continuing;


 


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(v)                                 after giving Pro
Forma Effect to any such purchase or other acquisition, the Borrower
shall be in pro  forma compliance with the Financial Covenants set
forth in Section 7.13 and 7.14, with such compliance to be
based on the most recently ended period of twelve fiscal months with respect to
Pro  Forma Adjustments to Consolidated Adjusted EBITDA;


 


(vi)                              the Borrower
shall have delivered to the Administrative Agent, at least five Business Days
prior to the date on which any such acquisition is to be consummated, (A) a
certificate of a Responsible Officer certifying that all requirements set forth
in this Section 7.02(j) have been satisfied or will be
satisfied on or prior to the consummation of such acquisition, setting forth
all relevant financial information with respect to such acquisition, including,
without limitation, the aggregate consideration and other information required to
demonstrate compliance with the Financial Covenants and (B) any such
report or notice relating to matters required to be disclosed pursuant to Section 6.04(c)(iv);


 


(vii)                           at the time of
such acquisition and immediately after giving effect thereto, the Borrower
shall have available domestic unrestricted cash determined in accordance with
GAAP, together with any undrawn amounts under the Revolving Credit Facility, in
an aggregate amount of not less than $10,000,000;


 


(viii)                        the amount for
all Permitted Acquisitions hereunder shall not at any time exceed $50,000,000
in the aggregate;


 


(k)                                  the Transaction;


 


(l)                                     Investments consisting of
guarantees by any Loan Party of Indebtedness of any Non-Loan Party of the types
referred to in Section 7.03(k) in an aggregate guaranteed
amount not to exceed the greater of (i) $50,000,000 and (ii) 10% of
consolidated total revenue for the Parent and its Subsidiaries for the
trailing, twelve month period ending on the last day of the most recent fiscal
quarter for which quarterly financial statements as set forth in Section 6.01(b) are
available;


 


(m)                               Investments by Loan Parties
in Non-Loan Parties so long as at the time such Investment is made the Net
Investment in Non-Loan Parties is greater than zero;


 


(n)                                 so long as immediately
before and after giving effect to any such Investment no Default has occurred
and is continuing, other Investments that do not exceed $10,000,000 in the
aggregate;


 


(o)                                 Investments held by any
Subsidiary acquired after the Closing Date or of a corporation merged into the
Borrower or merged or consolidated with any Subsidiary in accordance with Section 7.04
after the Closing Date to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger or consolidation
and were in existence on the date of such acquisition, merger or consolidation
and to the extent otherwise permitted under Section 7.02 (and not
solely in reliance on this Section 7.02(o)); and


 


(p)                                 Guarantee Obligations of the
Borrower or any Subsidiary in respect of leases (other than Capitalized Leases)
or of other obligations that do not constitute Indebtedness, in each case
entered into in the ordinary course of business.


 


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


 


(a)                                  Indebtedness of the Borrower
and any of its Subsidiaries under the Loan Documents;


 


(b)                                 Indebtedness of the Borrower
and any of its Subsidiaries under the Senior Notes and any Permitted
Refinancing with respect thereto, provided that the aggregate principal amount
of such Indebtedness shall not exceed $300,000,000 at any time (plus the amount
of any reasonable and documented fees, commissions, discounts and other costs
and expenses associated with any Permitted Refinancing of the Senior Notes, and
any prepayment premiums);


 


(c)                                  Guarantee Obligations of the
Borrower and its Subsidiaries in respect of Indebtedness of the Borrower or any
Subsidiary otherwise permitted hereunder (except that a Non-Loan Party may not,
by virtue of this Section 7.03(c), guarantee Indebtedness that such
Non-Loan Party could not otherwise incur under this Section 7.03); provided,
that, if the Indebtedness being guaranteed is subordinated to the Obligations,
such Guarantee Obligation shall be subordinated to the Guarantee of the
Obligations on terms at least as favorable to the Lenders as those contained in
the subordination of such Indebtedness;


 


(d)                                 Indebtedness of any
Subsidiary to the Borrower or to any other Subsidiary, or of Borrower to any
Subsidiary; provided, that (i) all such Indebtedness shall be
evidenced by promissory notes and, except with respect to any Indebtedness
owing to any Non-Loan Party, all such notes shall be subject to the Collateral
Requirement and shall be pledged to the Collateral Trustee as security for the
Obligations hereunder and (ii) except with respect to intercompany
Indebtedness among Non-Loan Parties, all such Indebtedness shall be unsecured
and subordinated in right of payment to the payment in full of the Obligations
pursuant to the terms of the applicable promissory notes or an intercompany
subordination agreement that is reasonably satisfactory to the Administrative
Agent;


 


(e)                                  Indebtedness with respect to
Capitalized Leases and purchase money Indebtedness and Indebtedness in an
aggregate amount not exceed $30,000,000; provided, that, any such
Indebtedness (i) in the case of Capitalized Leases or purchase money
Indebtedness, shall be secured by the asset subject to such Capitalized Leases
or acquired asset in connection with the incurrence of such Indebtedness, as
the case may be, and (ii) in the case of purchase money Indebtedness,
shall constitute not less than 75% of the aggregate consideration paid with
respect to such asset;


 


(f)                                    Indebtedness in respect of
Swap Contracts designed to hedge against interest rates, foreign exchange rates
or commodities pricing risks incurred in the ordinary course of business and
not for speculative purposes;


 


(g)                                 Indebtedness in an aggregate
amount not to exceed $10,000,000 at any one time outstanding (plus the amount
of Indebtedness then otherwise permitted to be incurred at such time pursuant
to this Section 7.03) assumed in connection with any Permitted
Acquisition, provided, that, such
Indebtedness (i) was not incurred in contemplation of such Permitted
Acquisition, (ii) is secured only by the assets acquired in the applicable
Permitted Acquisition (including any acquired Equity Interests), and (iii) both
immediately prior and after giving effect thereto no Default shall exist or
result therefrom;


 


(h)                                 Existing Indebtedness;


 


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(i)                                     Cash Management Obligations
and other Indebtedness in respect of netting services, automatic clearinghouse
arrangements, overdraft protections and similar arrangements in each case in
connection with deposit accounts incurred in the ordinary course;


 


(j)                                     Indebtedness incurred by the
Borrower or any of its Subsidiaries in respect of letters of credit, bank
guarantees, banker’s acceptances, warehouse receipts or similar instruments or
premium financing arrangements incurred, issued or created in the ordinary
course of business, including in respect of workers compensation claims,
health, disability or other employee benefits or property, casualty or
liability insurance or self-insurance or other Indebtedness with respect to
reimbursement-type obligations regarding workers compensation claims;


 


(k)                                  obligations in respect of
performance, bid, appeal and surety bonds and performance and completion
guarantees and similar obligations provided by the Borrower or any of its
Subsidiaries or obligations in respect of letters of credit, bank guarantees or
similar instruments related thereto, in each case in the ordinary course of
business or consistent with past practice;


 


(l)                                     Indebtedness supported by a
Letter of Credit in a principal amount not to exceed the face amount of such
Letter of Credit;


 


(m)                               Indebtedness incurred by a
Non-Loan Party in an aggregate principal amount not to exceed $15,000,000 at
any one time outstanding; and


 


(n)                                 additional Indebtedness
(whether or not secured) in an aggregate principal amount not to exceed at any
one time outstanding $15,000,000.


 


For purposes of determining compliance
with this Section 7.03, in the event that an item of Indebtedness
meets the criteria of more than one of the categories of Indebtedness described
in clauses (a) through (l) above, the Borrower
shall, in its sole discretion, classify and reclassify or later divide,
classify or reclassify such item of Indebtedness (or any portion thereof) and
will only be required to include the amount and type of such Indebtedness in
one or more of the above clauses; provided, that, all Indebtedness
outstanding under the Loan Documents will be deemed to have been incurred in
reliance only on the exception in clause (a) of this Section 7.03.


 


Section 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:


 


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


 


(b)                                 any Subsidiary that is not a
Loan Party may merge or consolidate with or into any other Subsidiary that is
not a Loan Party;


 


(c)                                  any Subsidiary may Dispose
of all or substantially all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or another Subsidiary; provided, that, if the transferor in such a transaction is a Loan
Party, then (i) the transferee must be a Loan Party or (ii) to the
extent constituting an Investment, such Investment must be a permitted
Investment in or 


 


84

















 


Indebtedness of a Subsidiary which is not a Loan Party in accordance
with Section 7.02 and Section 7.03, respectively;


 


(d)                                 so long as no Default exists
or would result therefrom, the Borrower may merge with any other Person in
accordance with Section 7.02(j); provided,
that, the Borrower shall be the continuing or surviving corporation;


 


(e)                                  so long as no Default exists
or would result therefrom, any Subsidiary may merge with any other Person in
order to effect an Investment permitted pursuant to Section 7.02; provided, that, the continuing or surviving
Person shall be a Subsidiary, which together with each of its Subsidiaries,
shall have complied with the Collateral and Guarantee Requirements and the
requirements of Section 6.11;


 


(f)                                    the Acquisition may be
consummated; and


 


(g)                                 so long as no Default exists
or would result therefrom, a merger, dissolution, liquidation, consolidation or
Disposition, the purpose of which is to effect a Disposition permitted pursuant
to Section 7.04(c) or Section 7.05, may be effected.


 


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


 


(a)                                  Dispositions of obsolete,
worn out or surplus property, whether now owned or hereafter acquired, in the
ordinary course of business and Dispositions of property no longer used or
useful in the conduct of the business of the Borrower and its Subsidiaries;


 


(b)                                 Dispositions of inventory
and immaterial assets in the ordinary course of business (including allowing
any registrations or any applications for registration of any immaterial
Intellectual Property to lapse or go abandoned in the ordinary course of
business);


 


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


 


(d)                                 Dispositions of property to
the Borrower or a Subsidiary; provided,
that, if the transferor of such property is a Loan Party (i) the
transferee thereof must be a Loan Party or (ii) to the extent such
transaction constitutes an Investment, such transaction is permitted under Section 7.02;


 


(e)                                  Dispositions permitted by Section 7.02,
Section 7.04 and Section 7.06 and Liens permitted by Section 7.01;


 


(f)                                    Dispositions in the ordinary
course of business of Cash Equivalents;


 


(g)                                 licenses granted to a Person
of selected data from the Borrower’s and/or any Subsidiary’s data library in
exchange for ownership of separate seismic data supplied by such Person,
licenses of inventory or data assets, sales or grants of licenses or
sublicenses to use any inventory, patents, trade secrets, know-how and other
intellectual property, and other leases, subleases, licenses or sublicenses, in
each case in the ordinary course of business and consistent 


 


85

















 


with past practice or which do not materially interfere with the
business of the Borrower and its Subsidiaries;


 


(h)                                 transfers of property
subject to Casualty Events upon receipt of the Net Cash Proceeds of such
Casualty Event;


 


(i)                                     Dispositions of accounts
receivable in the ordinary course of business in connection with the collection
or compromise thereof;


 


(j)                                     the unwinding of any Swap
Contract pursuant to its terms;


 


(k)                                  Permitted Sale Leasebacks in
an aggregate total amount not to exceed $30,000,000 in any Fiscal Year;


 


(l)                                     Dispositions of other assets
having an aggregate fair market value not to exceed $10,000,000 in any fiscal
year; provided, that, (i) the purchase price paid to the Borrower
or such Subsidiary for such asset shall be no less than the fair market value
of such asset at the time of such sale and (ii) not less than 75% of the
consideration for such disposition shall be paid in cash; and


 


(m)                               Dispositions of any assets
acquired pursuant to a Permitted Acquisition;


 


provided, that, other
than in respect of Dispositions specified under clauses (a), (b),
(c), (d), (e), (f), (g), (h), (i),
(j) and (k), the proceeds of any Dispositions permitted
hereunder shall be applied in accordance with the requirements of Section 2.05(b)(i) to
the extent not reinvested or for which no commitment for reinvestment has been
made within 12 months of receipt thereof.


 


Section 7.06                                Restricted
Payments.  Declare or
make, or permit Parent to make, directly or indirectly, any Restricted Payment,
except:


 


(a)                                  the Borrower may make
Restricted Payments to the Parent, each Subsidiary may make Restricted Payments
to the Parent, the Borrower and to other Subsidiaries that are Loan Parties and
each Wholly-owned direct or indirect Non-Loan Party may make Restricted
Payments to any other Wholly-owned direct or indirect Non-Loan Party;


 


(b)                                 the Parent and each
Subsidiary may declare and make dividend payments or other distributions
payable solely in the Equity Interests (other than Disqualified Equity
Interests not otherwise permitted by Section 7.03) of such Person;


 


(c)                                  to the extent constituting
Restricted Payments, the Borrower and its Subsidiaries may enter into and
consummate transactions expressly permitted by any provision of Section 7.02,
Section 7.04 or Section 7.08;


 


(d)                                 repurchases of Equity
Interests in the ordinary course of business in the Borrower (or any direct or
indirect parent thereof) or any Subsidiary deemed to occur upon exercise of
stock options or warrants if such Equity Interests represent a portion of the
exercise price of such options or warrants;


 


(e)                                  the Borrower or any
Subsidiary may, in good faith, make non-cash payments (or make non-cash
Restricted Payments to allow any direct or indirect parent thereof to pay) for
the repurchase, retirement or other acquisition or retirement for value of
Equity Interests of it or any 


 


86

















 


direct or indirect parent thereof held by any future, present or former
employee, director, officer or consultant (or any Affiliates, spouses, former
spouses, other immediate family members, successors, executors, administrators,
heirs, legatees or distributees of any of the foregoing) of the Borrower (or
any direct or indirect parent of the Borrower) or any of its Subsidiaries
pursuant to any employee, management or director equity plan, employee,
management or director stock option plan or any other employee, management or
director benefit plan or any agreement (including any stock subscription or
shareholder agreement) with any employee, director, officer or consultant of
the Parent, the Borrower or any Subsidiary; provided, that, under this
clause (e) the Parent and its Subsidiaries may make cash dividends or such
other Restricted Payments after the Closing Date in an aggregate amount not to
exceed (i) if the Total Leverage Ratio is equal to or greater than
1.50:1.00 on a Pro  Forma basis, $1,000,000 in the aggregate or (ii) if
the Total Leverage Ratio is less than 1.50:1.00 on a Pro  Forma
basis, $2,500,000 in the aggregate;


 


(f)                                    the Parent or any Subsidiary
may pay any dividend or distribution within 60 days after the date of
declaration thereof, if at the date of declaration such payment would have
complied with the provisions of this Agreement;


 


(g)                                 the Parent may pay cash
dividends or distributions on its Series C preferred stock and its Series B
preferred stock;  provided that (x) immediately
before and immediately after giving Pro  Forma Effect to any such
payment, no Default shall have occurred and be continuing; (y) after
giving Pro  Forma Effect to any such payment, the Borrower shall
be in pro forma compliance with the Financial Covenants; and (z) at the
time of such payment and immediately after giving effect thereto, the Borrower
shall have no Borrowings outstanding under this Agreement determined on a Pro
Forma Basis except for L/C Borrowings; and


 


(h)                                 so long as no Default has
occurred and is continuing and the Total Leverage Ratio is less than 1.50:1.00
on a Pro  Forma Basis, the Parent may make additional Restricted
Payments in an aggregate amount not to exceed $1,000,000 in any fiscal year and
$5,000,000 in the aggregate from the Closing Date.


 


Section 7.07                                Change in
Nature of Business.  Engage in
any line of business or activity other than those lines of business and
activities conducted by the Borrower and its Subsidiaries on the date hereof or
any business reasonably related or ancillary thereto.


 


Section 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:


 


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


 


(b)                                 the Transaction and the
payment of fees and expenses related to the Transaction;


 


(c)                                  equity issuances,
repurchases, redemptions, retirements or other acquisitions or retirements of
Equity Interests by the Borrower or any Subsidiary permitted under Section 7.06;


 


(d)                                 loans and other transactions
by and among (i) Loan Parties and (ii) Non-Loan Parties to the extent
permitted under this Article VII;


 


87

















 


(e)                                  employment and severance
arrangements between the Borrower or any of its Subsidiaries and their
respective officers and employees in the ordinary course of business and
transactions pursuant to stock option plans and employee benefit plans and
arrangements;


 


(f)                                    the payment of customary
fees and reasonable out-of-pocket costs to, and indemnities provided on behalf
of, directors, officers, employees and consultants of the Borrower and its
Subsidiaries or any direct or indirect parent of the Borrower in the ordinary
course of business to the extent attributable to the ownership or operation of
the Borrower and its Subsidiaries; and


 


(g)                                 dividends permitted under Section 7.06.


 


Section 7.09                                Prepayments,
Etc. of Indebtedness; Amendments or Modification to Senior Note Documents.  (a) Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of any subordination terms of, any Indebtedness,
except: (i) the prepayment of the Loans in accordance with the terms of
this Agreement, (ii) regularly scheduled or required repayments or
redemptions of the Senior Notes and (iii) prepayment of the Senior Notes
with proceeds of Indebtedness constituting a Permitted Refinancing or the
issuance of Equity Interests provided that at the time of such prepayment and
immediately after giving effect thereto there shall be not less than
$10,000,000 in availability under this Agreement.


 


(b)                                 Amend, modify
or change in any manner material and adverse to the Lenders any term or condition
of the Senior Note Documents without the consent of the Required Lenders, or
permit any of its Subsidiaries to do any of the foregoing other than to prepay
any Indebtedness payable to the Borrower.


 


Section 7.10                                Negative Pledge. 
Enter into or suffer to exist, or permit any of its Subsidiaries to
enter into or suffer to exist, any agreement prohibiting or conditioning the
creation or assumption of any Lien upon any of its property or assets except (a) the
Loan Documents, the Senior Note Documents, and any other agreements in
favor of the Collateral Trustee or (b) prohibitions or conditions under (i) any
purchase money or Indebtedness permitted by Section 7.03(e) solely
to the extent that the agreement or instrument governing such Indebtedness
prohibits a Lien on the property acquired with the proceeds of such
Indebtedness, (ii) any Capitalized Lease permitted by Section 7.03(e) solely
to the extent that such Capitalized Lease prohibits a Lien on the property
subject thereto, (iii) by reason of customary provisions restricting
pledges, assignments, subletting or other transfers contained in leases,
licenses and similar agreements entered into in the ordinary course of business
(provided that such restrictions are limited to the property or assets subject
to such leases, licenses or similar agreements, as the case may be), (iv) any
agreement entered into with respect to any multi-client data library
transaction to the extent that such agreement prohibits or restricts the
Borrower or its Subsidiaries from granting liens or security interests on or
pledges of any such data or any deposit or securities accounts or the funds or
other investment property held therein which constitutes prepayments by a
client for such client’s respective share of the costs associated with such
data library or of the price to be paid by such client for a license or other
right to use such data, or (v) any Indebtedness outstanding on the date
any Person first becomes a Subsidiary of the Borrower (so long as such
agreement was not entered into solely in contemplation of such Person becoming
a Subsidiary of the Borrower).


 


Section 7.11                                Partnerships, Etc. 
Become a general partner in any general or limited partnership, or
permit any of its Subsidiaries to do so, other than any Subsidiary the sole
assets of which consist of its interest in such partnership.


 


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Section 7.12                                Amendments to Constitutive Documents. 
Amend, or permit any of its Subsidiaries to amend, its certificate of
incorporation or bylaws or other constitutive documents in a manner material
and adverse to the Lenders and the Agents.


 


Section 7.13                                Total Leverage
Ratio.  Permit the Total Leverage
Ratio for any Test Period ending on the last day of a fiscal quarter set forth
below to be greater than the ratio set forth opposite such Test Period below:


 


	
  Fiscal Quarter Ending

  	
   

  	
  Total Leverage Ratio

  	
   

  
	
  June 30, 2010

  	
   

  	
  3.95:1.00

  	
   

  
	
  September 30, 2010

  	
   

  	
  3.00:1.00

  	
   

  
	
  December 31, 2010

  	
   

  	
  2.75:1.00

  	
   

  
	
  March 31, 2011 and the last day of each fiscal quarter
  thereafter

  	
   

  	
  2.50:1.00

  	
   

  



 


Section 7.14                                Interest Coverage Ratio.  Permit the Interest Coverage Ratio for any
Test Period ending on the last of day of each fiscal quarter beginning with the
fiscal quarter ending June 30, 2010 to be less than 2.50:1.00.


 


Section 7.15                                Fixed Charge Coverage Ratio.  Permit the Fixed Charge Coverage Ratio for
any Test Period ending on the last day of each fiscal quarter, beginning with
the fiscal quarter ending June 30, 2010 to be less than (i) 1.25:1.00 for the fiscal quarter ending June 30, 2010, and (ii) 1.50:1.00
for each fiscal quarter ending thereafter.


 


Section 7.16                                Capital Expenditures.  Make, or
permit any of its Subsidiaries to make, any Capital Expenditures that would
cause the aggregate of all such Capital Expenditures made by the Parent and its
Subsidiaries in each Fiscal Year beginning with Fiscal Year 2010 and ending
with Fiscal Year ending 2013 to exceed $150,000,000 (the “Base Amount”);
provided, that if, for any such Fiscal Year, the Base Amount exceeds the
aggregate amount of Capital Expenditures made by the Borrower and its
Subsidiaries, as determined on a consolidated basis during such Fiscal Year
(the amount of such excess being the “Excess Amount”), the Base Amount
for the following Fiscal Year shall be automatically adjusted to be equal to
the sum of the Base Amount for such year plus such Excess Amount; provided
further, that solely for purposes of determining compliance with the
Financial Covenant set forth in this Section 7.16, any Capital
Expenditures related to  the prefunded
amount of any investment in a multi-client data acquisition  program shall be excluded from the
calculation of Capital Expenditures if such multi-client program is at least
75% prefunded at the time that surveying commences for such program, provided
that the non-prefunded amount of any such multi-client program shall not exceed
$5,000,000 in the aggregate for any such program.


 


ARTICLE VIII




[RESERVED]


 


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ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES


 


Section 9.01                                Events of
Default.  Any of the following events
referred to in any of clauses (a) through (l) inclusive
of this Section 9.01 shall constitute an “Event of Default”:


 


(a)                                  Non-Payment.  Any Loan Party fails to pay (i) when and
as required to be paid herein, any amount of principal of any Loan or (ii) within
five (5) Business Days after the same becomes due, any interest on any
Loan or any other amount payable hereunder or with respect to 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) or
Section 6.05 (solely with respect to the Borrower), Section 6.12
or Article VII; or


 


(c)                                  Other Defaults.  Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in Section 9.01(a) or
(b) above) contained in any Loan Document on its part to be
performed or observed and such failure continues for thirty (30) days after
receipt by the Borrower of written notice thereof by 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 any Loan Party herein, in any other Loan Document, or
in any document required to be delivered in connection herewith or therewith
shall be incorrect or misleading in any material respect when made or deemed
made; or


 


(e)                                  Cross-Default.  Any Loan Party or any Subsidiary (A) fails
to make any payment beyond the applicable grace period with respect thereto, if
any (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness (other than Indebtedness
hereunder) having an aggregate principal amount of not less than the Threshold
Amount, or (B) fails to observe or perform any other agreement or
condition relating to any such Indebtedness, or any other event occurs, the
effect of which default or other event is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, all such Indebtedness to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem all such Indebtedness to be made, prior to its stated
maturity; or


 


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


 


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(g)                                 Inability to Pay Debts;
Attachment.  (i) Any
Loan Party or any Material Subsidiary becomes unable or admits in writing its
inability or fails generally to pay its debts as they become due, or (ii) any
writ or warrant of attachment or execution or similar process in respect of a
claim in excess of the Threshold Amount is issued or levied against all or any
material part of the property of the Loan Parties, taken as a whole, and is not
released, vacated, stayed or fully bonded within sixty (60) days after its
issue or levy; or


 


(h)                                 Judgments.  There is entered against any Loan Party or
any Subsidiary a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance) and such judgment or order shall not have
been satisfied, vacated, discharged or stayed or bonded pending an appeal for a
period of sixty (60) consecutive days; or


 


(i)                                     ERISA.  (i) An ERISA Event occurs with respect
to a Pension Plan or Multiemployer Plan which has resulted or would reasonably
be expected to result in liability of any Loan Party or ERISA Affiliate under
Title IV of ERISA in an aggregate amount which would reasonably be expected to
exceed the Threshold Amount, (ii) any Loan Party 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 which would
reasonably be expected to exceed the Threshold Amount, (iii) any Loan
Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA, and as a result of
such reorganization or termination the aggregate annual contributions of the
Loan Parties and the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an aggregate amount which would
reasonably be expected to exceed the Threshold Amount; or (iv) a
termination, withdrawal or noncompliance with applicable law or plan terms or
termination, withdrawal or other event similar to an ERISA Event occurs with
respect to a Foreign Plan that would reasonably be expected to exceed the
Threshold Amount; or


 


(j)                                     Invalidity of Loan Documents.  Any material provision of any Loan Document,
at any time after its execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder or the satisfaction in full of all the
Obligations, ceases to be in full force and effect; or 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 (other than as a result of repayment in full
of the Obligations and termination of the Aggregate Commitments), or purports
to revoke or rescind any Loan Document; or


 


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


 


(l)                                     Liens.  Any Collateral Document or financing
statement after delivery thereof pursuant to Section 4.01 or Section 6.11
and, to the extent applicable, timely and proper filing thereof with applicable
authorities, shall for any reason (other than pursuant to the terms thereof)
cease to create a valid and perfected first priority lien on and security
interest in the Collateral having an aggregate fair market value in excess of
$250,000 purported to be covered thereby, except to the extent that any such
loss of perfection or priority results from the failure of the Administrative
Agent and the Collateral Trustee to maintain possession of certificates
actually received by it representing securities pledged under the Collateral
Documents or to file Uniform 


 


91

















 


Commercial Code continuation statements in the applicable jurisdictions
as required under the UCC to continue the perfection of such security interest
or the equivalent in the applicable jurisdiction.


 


Section 9.02                                Remedies Upon
Event of Default.  If any
Event of Default occurs and is continuing, the Administrative Agent may and, at
the request of the Required Lenders, shall 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 Issuers to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligations
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
and the Lenders all rights and remedies available to it and the Lenders under
the Loan Documents or applicable Law;


 


provided, that upon the occurrence of an Event of Default
under Section 9.01(f) with respect to the Borrower, the
obligation of each Lender to make Loans and any obligation of the L/C Issuers
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 any Agent
or any Lender.


 


Section 9.03                                Application of
Funds.  If the circumstances described
in Section 2.12(g) have occurred, or after the exercise of
remedies provided for in Section 9.02 (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 9.02), including in any bankruptcy or insolvency
proceeding, 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 (other than principal and interest, but including Attorney Costs
payable under Section 11.04 and amounts payable under Article III)
payable to each Agent in its capacity as such;


 


Second, to payment of
that portion of the Obligations constituting fees, indemnities and other
amounts (other than principal and interest) payable to the Lenders (including
Attorney Costs payable under Section 11.04 and amounts payable
under Article III), ratably among them in proportion to the amounts
described in this clause Second payable to them;


 


Third, to payment of
that portion of the Obligations constituting accrued and unpaid interest
(including, but not limited to, post-petition interest), ratably among the
Lenders in proportion to the respective amounts described in this clause Third
payable to them;


 


92






 












 


Fourth, to payment of
that portion of the Obligations constituting unpaid principal, Unreimbursed
Amounts or face amounts of the Loans, L/C Borrowings and Swap Termination Value
under Secured Hedge Agreements and Cash Management Obligations, ratably among
the Secured Parties in proportion to the respective amounts described in this clause Fourth
held by them;


 


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


 


Sixth, to the
payment of all other Obligations of the Loan Parties that are due and payable
to the Administrative Agent and the other Secured Parties on such date, ratably
based upon the respective aggregate amounts of all such Obligations owing to
the Administrative Agent and the other Secured Parties on such date; 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 Fifth above, together with any amounts in the
Cash Collateral Account provided in respect of the L/C Exposure of any
Defaulting Lender pursuant to Section 2.15, shall be applied to
satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the
order set forth above and, if no Obligations remain outstanding, to the
Borrower.


 


ARTICLE X




ADMINISTRATIVE AGENT AND OTHER AGENTS


 


Section 10.01                          Appointment and
Authorization of Agents.  (a) 
Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. 
Notwithstanding any provision to the contrary contained in this Agreement
or in any other Loan Document, the Administrative Agent shall have no duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.  Without limiting
the generality of the foregoing sentence, the use of the term “agent” herein
and in the other Loan Documents with reference to any Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable Law. 
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties.


 


Notwithstanding any
provision contained in this Agreement providing for any action in the
Administrative Agent’s reasonable discretion or approval of any action or
matter in the Administrative Agent’s reasonable satisfaction, the
Administrative Agent shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loans Documents that the
Administrative Agent is 


 


93

















 


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.  The
Administrative Agent 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, any other
Loan Party or any of their respective Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any other
Agent-Related Person in any capacity.


 


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 (v) the
satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


 


(b)                                 Each L/C Issuer
shall act on behalf of the Lenders with respect to any Letters of Credit issued
by it and the documents associated therewith, and each such L/C Issuer shall
have all of the benefits and immunities (i) provided to the Agents in this
Article X with respect to any acts taken or omissions suffered by
such L/C Issuer in connection with Letters of Credit issued by it or proposed
to be issued by it and the applications and agreements for letters of credit
pertaining to such Letters of Credit as fully as if the term “Agent” as used in
this Article X and in the definition of “Agent-Related Person”
included such L/C Issuer with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to such L/C Issuer.


 


(c)                                  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, L/C Issuer
(if applicable) and a potential Hedge Bank or Cash Management Bank) hereby
irrevocably appoints and authorizes the Administrative Agent to act as the
agent of (and to hold any security interest, charge or other Lien created by
the Collateral Documents for and on behalf of or on trust for) such Lender 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 10.02 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 X
(including Section 10.07, 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.


 


(d)                                 U.S. Bank
National Association shall act as the “collateral trustee” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, L/C Issuer
(if applicable) and a potential Hedge Bank or Cash Management Bank) hereby
acknowledges the appointment and authorization of U.S. Bank National
Association by the Administrative Agent as a “Secured Party” pursuant to and in
respect of the Collateral Trust and Intercreditor Agreement to act as the agent
of (and to hold any security interest, charge or other Lien created by the
Collateral Documents for and on behalf 


 


94

















 


of or on trust for) such
Lender 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, U.S. Bank
National Association, as “collateral trustee” (and any co-agents, sub-agents
and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.02
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 X
(including Section 10.07, as though such co-agents, sub-agents and
attorneys-in-fact were the “collateral trustee” under the Loan Documents) as if
set forth in full herein with respect thereto.


 


Section 10.02                          Delegation of
Duties.  The Administrative Agent may
execute any of its duties under this Agreement or any other Loan Document
(including for purposes of holding or enforcing any Lien on the Collateral (or
any portion thereof) granted under the Collateral Documents or of exercising
any rights and remedies thereunder) by or through Affiliates, agents, employees
or attorneys-in-fact, such sub-agents as shall be deemed necessary by the
Administrative Agent, and shall be entitled to advice of counsel, both internal
and external, and other consultants or experts concerning all matters
pertaining to such duties. The Administrative Agent shall not be responsible
for the negligence or misconduct of any agent or sub-agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct.


 


Section 10.03                          Liability of
Agents.  No Agent-Related Person shall (a) be
liable to any Lender for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or
willful misconduct, as determined by the final judgment of a court of competent
jurisdiction, in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
the perfection or priority of any Lien or security interest created or
purported to be created under the Collateral Documents, or for any failure of
any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.


 


Section 10.04                          Reliance by
Agents.  (a)  Each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
communication, signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, electronic mail message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to any Loan Party), independent accountants and
other experts selected by such Agent. 
Each Agent shall be fully justified in failing or refusing to take any
action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.  Each Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders (or such greater number of Lenders as may be expressly required hereby
in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.


 


95

















 


(b)                                 For purposes of
determining compliance with the conditions specified in Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


Section 10.05                          Notice of
Default.  The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a
Lender or the Borrower referring to this Agreement, describing such Default and
stating that such notice is a “notice of default”.  The Administrative Agent will promptly notify
the Lenders of its receipt of any such notice. 
The Administrative Agent shall take such action with respect to any
Event of Default as may be directed by the Required Lenders in accordance with Article IX;
provided, that unless and until the
Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Event of Default as it shall deem advisable
or in the best interest of the Lenders.


 


Section 10.06                          Credit Decision;
Disclosure of Information by Agents.  Each Lender acknowledges that no
Agent-Related Person has made any representation or warranty to it, and that no
act by any Agent hereafter taken, including any consent to and acceptance of
any assignment or review of the affairs of any Loan Party or any Affiliate
thereof, shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender as to any matter, including whether
Agent-Related Persons have disclosed material information in their
possession.  Each Lender represents to
each Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower and the other Loan Parties hereunder. Each
Lender also represents that it will, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Borrower and the
other Loan Parties. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by any Agent herein, such Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of any of the Loan Parties or
any of their respective Affiliates which may come into the possession of any
Agent-Related Person.


 


Section 10.07                          Indemnification
of Agents.  Whether or
not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed
by or on behalf of any Loan Party and without limiting the obligation of any
Loan Party to do so), pro  rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities to
the extent incurred by it; provided, that
no Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent resulting from such
Agent-Related Person’s own gross negligence or willful misconduct, as
determined by the final non-appealable judgment of a court of competent
jurisdiction; provided, that, no action
taken in accordance with the directions of the Required Lenders (or such other
number or percentage of the Lenders as shall be required by the Loan Documents)
shall be deemed to constitute gross negligence or 


 


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willful
misconduct for purposes of this Section 10.07.  In the case of any investigation, litigation
or proceeding giving rise to any Indemnified Liabilities, this Section 10.07
applies whether any such investigation, litigation or proceeding is brought by
any Lender or any other Person.  Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Borrower; provided, that, such reimbursement by the
Lenders shall not affect the Borrower’s continuing reimbursement obligations
with respect thereto, if any.  The
undertaking in this Section 10.07 shall survive termination of the
Aggregate Commitments, the payment of all other Obligations and the resignation
of the Administrative Agent.


 


Section 10.08                          Agents in their
Individual Capacities. 
Royal Bank and its Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, acquire Equity Interests in and
generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Royal Bank were not the Administrative Agent
hereunder and without notice to or consent of the Lenders.  The Lenders acknowledge that, pursuant to
such activities, Royal Bank or its Affiliates may receive information regarding
any Loan Party or any Affiliate of a Loan Party (including information that may
be subject to confidentiality obligations in favor of such Loan Party or such
Affiliate) and acknowledge that the Administrative Agent shall be under no obligation
to provide such information to them. 
With respect to its Loans, Royal Bank shall have the same rights and
powers under this Agreement as any other Lender and may exercise such rights
and powers as though it were not the Administrative Agent, and the terms “Lender”
and “Lenders” include Royal Bank in its individual capacity.


 


Section 10.09                          Successor
Agents.  The Administrative Agent may
resign as the Administrative Agent upon thirty (30) days’ notice to the Lenders
and the Borrower.  If the Administrative
Agent resigns under this Agreement, the Required Lenders shall appoint a
successor agent for the Lenders, which appointment of a successor agent shall
require the consent of the Borrower at all times other than during the
existence of an Event of Default under Section 9.01 (a), (f) or
(g) (which consent of the Borrower shall not be unreasonably
withheld or delayed).  If no successor
agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and, if no Default has occurred and is continuing, the
Borrower, a successor agent from among the Lenders.  If the Administrative Agent becomes a
Defaulting Agent, the Borrower may at its option appoint a successor agent to
replace the Defaulting Agent, and such successor agent shall be appointed from
among the Lenders; provided, that such Lender is a commercial bank
organized under the Laws of the United States, any State thereof or the
District of Columbia or any other country that is a member of the Organization
for Economic Cooperation and Development, so long as such bank will act in such
capacity through a branch or agency located in the United States and has
combined capital and surplus of at least $1,000,000,000.  Upon the acceptance of its appointment as
successor agent hereunder, the Person acting as such successor agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term “Administrative Agent”, shall mean such successor
administrative agent and/or supplemental administrative agent, as the case may
be, and the retiring Administrative Agent’s appointment, powers and duties as
the Administrative Agent shall be terminated. 
After the retiring Administrative Agent’s resignation hereunder as the
Administrative Agent, the provisions of this Article X and Section 11.04
and Section 11.05 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent under
this Agreement.  If no successor agent
has accepted appointment as the Administrative Agent by the date which is
thirty (30) days following the retiring Administrative Agent’s 


 


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notice
of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of
the duties of the Administrative Agent hereunder until such time, if any, as
the Required Lenders appoint a successor agent as provided for above.  Lenders assuming the role of Administrative
Agent as specified in the immediately preceding sentence shall assume the
rights and obligations of the Administrative Agent (including the
indemnification provisions set forth in Section 10.07) as if each
such Lender were the Administrative Agent. 
Upon the acceptance of any appointment as the Administrative Agent
hereunder by a successor and upon the execution and filing or recording of such
financing statements, or amendments thereto, and such amendments or supplements
to the Mortgages, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may reasonably request, in order to (a) continue
the perfection of the Liens granted or purported to be granted by the
Collateral Documents or (b) otherwise ensure that the Collateral and
Guarantee Requirement is satisfied, the Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion,
privileges, and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents.


 


Section 10.10                          Administrative
Agent May File Proofs of Claim.  In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise:


 


(a)                                  to file and prove a claim
for the whole amount of the principal and interest owing and unpaid in respect
of the Loans, L/C Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Section 2.09 and Section 11.04) 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


 


(c)                                  any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender 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, to
pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Agents and their respective agents
and counsel, and any other amounts due to the Administrative Agent under Section 2.09
and Section 11.04.


 


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 any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize the Administrative Agent to vote in respect of
the claim of any Lender in any such proceeding.


 


Section 10.11                          Release of
Collateral and Guaranty.  (a) 
The Lenders irrevocably agree that any Lien on any property granted to or held
by the Collateral Trustee under any Loan Document shall be automatically
released (i) upon termination of the Aggregate Commitments and payment in
full of all 


 


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Obligations
(other than (A) obligations under Secured Hedge Agreements not yet due and
payable, (B) Cash Management Obligations not yet due and payable and (C) contingent
indemnification obligations not yet accrued and payable), the expiration or
termination of all Letters of Credit (unless the Letters of Credit in the
Outstanding Amount of the L/C Obligations related thereto have been Cash
Collateralized up to 102% of such Outstanding Amounts or if a backstop letter
of credit reasonably satisfactory to the applicable L/C Issuer is in place) and
any other obligation (including a guarantee that is contingent in nature), (ii) upon
the sale, lease, transfer or other disposition of any item of Collateral of any
Loan Party (including, without limitation, as a result of the sale, in
accordance with the terms of the Loan Documents, of the Loan Party that owns
such Collateral) in accordance with the terms of the Loan Documents, (iii) subject
to Section 10.01, if the release of such Lien is approved,
authorized or ratified in writing by the Required Lenders, or (iv) if the
property subject to such Lien is owned by a Guarantor, upon release of such
Guarantor from its obligations under its Guaranty pursuant to clause (b) below.  The Collateral Trustee will, at the Borrower’s
expense, execute and deliver to such 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 in accordance with the terms of the Loan Documents.


 


(b)                                 That any
Guarantor shall be automatically released from its obligations under the
Guaranty if (i) in the case of any Subsidiary, such Person ceases to be a
Material Subsidiary of the Company (as certified by a Responsible Officer and
subject to the maximum aggregate percentage in respect of Immaterial
Subsidiaries specified in the definition of Immaterial Subsidiary) and the
Borrower notifies the Administrative Agent in writing that it wishes such
Guarantor to be released from its obligations under the Guaranty or (ii) the
termination of the Aggregate Commitments and payment in full of all Obligations
(other than (A) obligations under Secured Hedge Agreements not yet due and
payable, (B) Cash Management Obligations not yet due and payable and (C) contingent
indemnification obligations not yet accrued and payable) and the expiration or
termination of all Letters of Credit (unless the Letters of Credit in the
Outstanding Amount of the L/C Obligations related thereto have been Cash
Collateralized or if a backstop letter of credit reasonably satisfactory to the
applicable L/C Issuer is in place) and any other obligation (including a
guarantee that is contingent in nature).


 


Section 10.12                          Other Agents;
Arrangers and Managers.  None
of the Lenders or other Persons identified on the facing page or signature
pages of this Agreement as a “syndication agent”, or “co-arranger” shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such.  Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. 
Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.


 


Section 10.13                          Appointment of
Supplemental Administrative Agents.  (a)  It is the purpose of this Agreement
and the other Loan Documents that there shall be no violation of any Law of any
jurisdiction denying or restricting the right of banking corporations or
associations to transact business as agent or trustee in such
jurisdiction.  It is recognized that in
case of litigation under this Agreement or any of the other Loan Documents, and
in particular in case of the enforcement of any of the Loan Documents, or in
case the Administrative Agent deems that by reason of any present or future Law
of any jurisdiction it may not exercise any of the rights, powers or remedies
granted herein or in any of the other Loan Documents or take any other action
which may be desirable or necessary in connection therewith, the Administrative
Agent is hereby authorized to appoint an additional individual or institution
selected by the Administrative Agent in its sole discretion as a separate
trustee, co-trustee, administrative agent, collateral agent, collateral
trustee, administrative sub-agent or administrative co-agent (any such
additional individual or institution being referred to herein individually as a
“Supplemental Administrative Agent” and collectively as “Supplemental
Administrative Agents”).


 


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(b)                                 In the event
that the Administrative Agent appoints a Supplemental Administrative Agent with
respect to any Collateral, (i) each and every right, power, privilege or
duty expressed or intended by this Agreement or any of the other Loan Documents
to be exercised by or vested in or conveyed to the Administrative Agent with
respect to such Collateral shall be exercisable by and vest in such
Supplemental Administrative Agent to the extent, and only to the extent,
necessary to enable such Supplemental Administrative Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Administrative Agent shall run to and be
enforceable by either the Administrative Agent or such Supplemental
Administrative Agent, and (ii) the provisions of this Article X
and of Section 11.04 and Section 11.05 that refer to
the Administrative Agent shall inure to the benefit of such Supplemental
Administrative Agent and all references therein to the Administrative Agent
shall be deemed to be references to the Administrative Agent and/or such
Supplemental Administrative Agent, as the context may require.


 


(c)                                  Should any
instrument in writing from any Loan Party be required by any Supplemental
Administrative Agent so appointed by the Administrative Agent for more fully
and certainly vesting in and confirming to him or it such rights, powers,
privileges and duties, the Borrower shall, or shall cause such Loan Party to,
execute, acknowledge and deliver any and all such instruments promptly upon
request by the Administrative Agent.  In
case any Supplemental Administrative Agent, or a successor thereto, shall die,
become incapable of acting, resign or be removed, all the rights, powers,
privileges and duties of such Supplemental Administrative Agent, to the extent
permitted by Law, shall vest in and be exercised by the Administrative Agent
until the appointment of a new Supplemental Administrative Agent.


 


ARTICLE XI




MISCELLANEOUS


 


Section 11.01                          Amendments, Etc.  No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by any Loan Party
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders and the Borrower, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that:


 


(a)                                  no amendment, waiver or
consent shall, unless in writing and signed by all of the Lenders (other than
any Lender that is, at such time, a Defaulting Lender), do any of the following
at any time:


 


(i)                                     change the
percentage of (x) the Commitments, (y) the aggregate unpaid principal
amount of Loans or (z) the aggregate Available Amount of outstanding
Letters of Credit that, in each case, shall be required for the Lenders or any
of them to take any action hereunder,


 


(ii)                                  release one or
more Guarantors (or otherwise limit such Guarantors’ liability with respect to
the Obligations owing to the Agents and the Lenders under the Guaranties) if
such release or limitation is in respect of all or substantially all of the
value of the Guaranties to the Lenders,


 


(iii)                               release all or
substantially all of the Collateral in any transaction or series of related
transactions, or


 


100






 












 


(iv)                              amend any provision of this Section 11.01,
the definition of “Required Lenders,” “ Pro  Rata Share,” Section 2.05(b)(vi),
Section 2.06(c) or Section 9.03;


 


(b)                                 no amendment, waiver or
consent shall, unless in writing and signed by the Required Lenders and each
Lender specified below for such amendment, waiver or consent:


 


(i)                                     increase or
extend the Revolving Credit Commitments of a Lender without the consent of such
Lender;


 


(ii)                                  reduce the
principal of, or stated rate of interest on, or stated premium payable on, the
Loans owed to a Lender or any fees or other amounts stated to be payable
hereunder or under the other Loan Documents to such Lender without the consent
of such Lender; or


 


(iii)                              postpone any
date scheduled for any payment of principal of, or interest on, the Loans
pursuant to Section 2.07 or Section 2.08, any date
scheduled for payment or for any date fixed for any payment of fees (including
Participation Fees) hereunder in each case payable to a Lender without the
consent of such Lender; or


 


(iv)                              change the
order of application of any reduction in the Revolving Credit Commitments or
any prepayment of Loans from the application thereof set forth in the
applicable provisions of Section 2.05(b)(x) in any manner that
materially and adversely affects the Lenders without the consent of holders of
a majority of the Revolving Credit Commitments or Loans; and


 


(c)                                  no amendment, waiver or
consent shall change or amend any provision of Section 2.13 without
the consent of the Lenders holding at least 662/3% of the Total Facility Exposure, but excluding any Defaulting Lenders.


 


provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by the L/C Issuer in addition to
the Lenders required above to take such action, affect the rights or
obligations of the L/C Issuer under this Agreement; and provided, further,
that no amendment, waiver or consent shall, unless in writing and signed by an
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of such Agent under this Agreement or the other Loan
Documents.


 


Notwithstanding anything to
the contrary contained in this Section 11.01, any guarantees,
collateral security documents and related documents executed by Subsidiaries in
connection with this Agreement may be in a form reasonably determined by the
Administrative Agent acting on the advice of counsel and may be, together with
this Agreement, amended, supplemented and waived with the consent of the
Administrative Agent acting on the advice of counsel at the request of the
Borrower without the need to obtain the consent of any other Lender if such
amendment, supplement or waiver is delivered in order to (i) cure
ambiguities, omissions, mistakes or defects or (ii) to cause such
guarantee, collateral security document or other document to be consistent with
this Agreement and the other Loan Documents.


 


Section 11.02                          Notices and
Other Communications; Facsimile and Electronic Copies.  (a)  General.  Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder or under any other Loan
Document shall be in writing (including by facsimile transmission) (and, as to
service of process, only in writing and in accordance with applicable law) and,
to the extent set forth in Section 11.02(e), in an electronic
medium and delivered as set forth in Section 11.02(e).  All such written notices shall be mailed,
faxed or delivered to the applicable address, facsimile number or 


 


101

















 


electronic
mail address, and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:


 


(i)                                     if to the
Borrower, the Administrative Agent or an L/C Issuer, to the address, facsimile
number, electronic mail address or telephone number specified for such Person
on Schedule 11.02 or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such party
in a notice to the other parties from time to time; and


 


(ii)                                  if to any other
Lender, to the address, facsimile number, electronic mail address or telephone
number specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be
designated by such party in a written notice to the Borrower, the
Administrative Agent and the L/C Issuer.


 


All such notices and other
communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the relevant party hereto and (ii) (A) if
delivered by hand or by courier, when signed for by or on behalf of the
relevant party hereto; (B) if delivered by mail, four (4) Business
Days after deposit in the mails, postage prepaid; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail (which form of delivery is subject to the
provisions of Section 11.02(b)), when delivered; provided, that, notices and other
communications to the Borrower, Administrative Agent and the L/C Issuer
pursuant to Article II shall not be effective until actually
received by such Person during the person’s normal business hours. In no event
shall a voice mail message be effective as a notice, communication or
confirmation hereunder.


 


(b)                                 Effectiveness
of Facsimile Documents and Signatures.  Loan Documents may be transmitted and/or
signed by facsimile or electronic transmission of a .pdf copy; provided
that original copies are delivered promptly thereafter.


 


(c)                                  Reliance by
Agents and Lenders.  The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic 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 each
Agent-Related Person and each Lender 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 in the absence of gross
negligence or willful misconduct.  All
telephonic notices to the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.


 


(d)                                 Notice to other
Loan Parties.  The
Borrower agrees that notices to be given to any other Loan Party under this
Agreement or any other Loan Document may be given to the Borrower in accordance
with the provisions of this Section 11.02 with the same effect as
if given to such other Loan Party in accordance with the terms hereunder or
thereunder.


 


(e)                                  The Borrower
hereby agrees that it will provide to the Administrative Agent all information,
documents and other materials that it is obligated to furnish to the
Administrative Agent pursuant to the Loan Documents, including, without
limitation, all notices, requests, financial statements, financial and other
reports, certificates and other information materials, but excluding any such
communication that (i) relates to a request for a new, or a Conversion of
an existing, Borrowing or other Extension of Credit (including any election of
an interest rate or interest period relating thereto), 


 


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(ii) relates to the
payment of any principal or other amount due under this Agreement prior to the
scheduled date therefor, (iii) provides notice of any Default or Event of
Default under this Agreement or (iv) is required to be delivered to
satisfy any condition precedent to the effectiveness of this Agreement and/or
any Borrowing or other Extension of Credit thereunder (all such non-excluded
communications being referred to herein collectively as “Communications”),
by transmitting the Communications in an electronic/soft medium in a format
acceptable to the Administrative Agent to an electronic mail address specified
by the Administrative Agent to the Borrower. In addition, the Borrower agrees
to continue to provide the Communications to the Administrative Agent in the
manner specified in the Loan Documents but only to the extent requested by the
Administrative Agent.  The Borrower
further agrees that the Administrative Agent may make the Communications
available to the Lenders by posting the Communications on IntraLinks or a
substantially similar electronic transmission system (the “Platform”).


 


(f)                                    THE PLATFORM IS
PROVIDED “AS IS” AND “AS AVAILABLE.”  THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, 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 THE AGENT PARTIES IN
CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM.  IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR
ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE
ANY LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR
DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN
TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE
ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET,
EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.


 


(g)                                 The
Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute
effective delivery of the Communications to the Administrative Agent for
purposes of the Loan Documents.  Each
Lender  agrees that notice to it (as
provided in the next sentence) specifying that the Communications have been
posted to the Platform shall constitute effective delivery of the
Communications to such Lender for purposes of the Loan Documents.  Each Lender agrees (i) to notify the
Administrative Agent in writing (including by electronic communication) from
time to time of such Lender’s e-mail address to which the foregoing notice may
be sent by electronic transmission and (ii) that the foregoing notice may
be sent to such e-mail address.  Nothing
herein shall prejudice the right of the Administrative Agent or any Lender to
give any notice or other communication pursuant to any Loan Document in any
other manner specified in such Loan Document.


 


(h)                                 Each Loan Party
hereby acknowledges that certain of the Lenders may be “public-side” Lenders
(i.e., Lenders that do not wish to receive material non-public information with
respect to any Loan Party or its securities) (each, a “Public Lender”).  Each Loan Party hereby agrees that (i) Communications
that are to be made available on the Platform to Public Lenders who notify the
Borrower and the Administrative Agent of such Lender’s status as a Public
Lender shall be clearly and conspicuously marked by such Loan Party as “PUBLIC,”
which, at a minimum, shall mean that the word 


 


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“PUBLIC” shall appear
prominently on the first page thereof, (ii) by marking Communications
“PUBLIC,” each Loan Party shall be deemed to have authorized the Administrative
Agent and the Lenders to treat such Communications as either publicly available
information or not material information (although it may contain sensitive
business information and remains subject to the confidentiality undertakings of
Section 11.08) with respect to such Loan Party or its securities
for purposes of United States Federal and state securities laws, (iii) all
Communications marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Side Information,” and (iv) the
Administrative Agent shall be entitled to treat any Communications that are not
marked “PUBLIC” as being suitable only for posting on a portion of the Platform
not designated “Public Side Information.”


 


(i)                                     EACH LENDER
ACKNOWLEDGES THAT UNITED STATES FEDERAL AND STATE SECURITIES LAWS PROHIBIT ANY
PERSON WITH MATERIAL, NON-PUBLIC INFORMATION ABOUT AN ISSUER FROM PURCHASING OR
SELLING SECURITIES OF SUCH ISSUER OR, SUBJECT TO CERTAIN LIMITED EXCEPTIONS,
FROM COMMUNICATING SUCH INFORMATION TO ANY OTHER PERSON.  EACH LENDER AGREES TO COMPLY WITH APPLICABLE
LAW AND ITS RESPECTIVE CONTRACTUAL OBLIGATIONS WITH RESPECT TO CONFIDENTIAL AND
MATERIAL NON-PUBLIC INFORMATION.  Each
Lender that is not a Public Lender confirms to the Administrative Agent that
such Lender has adopted and will maintain internal policies and procedures
reasonably designed to permit such Lender to take delivery of Restricting
Information (as defined below) and maintain its compliance with applicable law
and its respective contractual obligations with respect to confidential and
material non-public information.  A
Public Lender may elect not to receive Communications and Information that
contains material non-public information with respect to the Loan Parties or
their securities (such Communications and Information, collectively, “Restricting
Information”), in which case it will identify itself to the Administrative
Agent as a Public Lender.  Such Public
Lender shall not take delivery of Restricting Information and shall not
participate in conversations or other interactions with the Agent Parties, any
Lender or any Loan Party concerning the Facility in which Restricting
Information may be discussed.  No Agent
Party, however, shall by making any Communications and Information (including
Restricting Information) available to a Lender (including any Public Lender),
by participating in any conversations or other interactions with a Lender
(including any Public Lender) or otherwise, be responsible or liable in any way
for any decision a Lender (including any Public Lender) may make to limit or to
not limit its access to the Communications and Information.  In particular, no Agent Party shall have, and
the Administrative Agent, on behalf of all Agent Parties, hereby disclaims, any
duty to ascertain or inquire as to whether or not a Lender (including any
Public Lender) has elected to receive Restricting Information, such Lender’s
policies or procedures regarding the safeguarding of material nonpublic
information or such Lender’s compliance with applicable laws related
thereto.  Each Public Lender acknowledges
that circumstances may arise that require it to refer to Communications and
Information that might contain Restricting Information.  Accordingly, each Public Lender agrees that
it will nominate at least one designee to receive Communications and
Information (including Restricting Information) on its behalf and identify such
designee (including such designee’s contact information) on such Public Lender’s
Administrative Questionnaire.  Each
Public Lender agrees to notify the Administrative Agent in writing from time to
time of such Public Lender’s designee’s address to which notice of the
availability of Restricting Information may be sent.  Each Public Lender confirms to the
Administrative Agent and the Lenders that are not Public Lenders that such
Public Lender understands and agrees that the Administrative Agent and such
other Lenders may have access to Restricting Information that is not available
to such Public Lender and that such Public Lender has elected to make its
decision to enter into this Agreement and to take or not take action under or
based upon this Agreement, any other Loan Document or related agreement knowing
that, so long as such Person remains a Public Lender, it does not and will not
be provided access to such Restricting Information.  Nothing in this Section 11.02(i) shall
modify or limit a Lender’s (including any Public Lender) obligations under Section 11.08
with regard to Communications and 


 


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Information and the
maintenance of the confidentiality of or other treatment of Communications or
Information.


 


Section 11.03                          No Waiver;
Cumulative Remedies.  No failure
by any Lender or the Administrative Agent to exercise, and no delay by any such
Person in exercising, any right, remedy, power or privilege hereunder or under
any other Loan Document 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, and provided under each other
Loan Document, are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by Law.


 


Section 11.04                          Attorney Costs
and Expenses.  The
Borrower agrees (a) to pay or reimburse the Administrative Agent and the
Lead Arranger for all reasonable and documented out-of-pocket costs and
expenses incurred in connection with the preparation, syndication, execution,
delivery and administration of this Agreement and the other Loan Documents, and
any amendment, waiver, consent or other modification of the provisions hereof
and thereof (whether or not the transactions contemplated thereby are
consummated), including all Attorney Costs of Shearman & Sterling LLP
and other local and foreign counsel in each relevant jurisdiction, and (b) to
pay or reimburse the Administrative Agent, the Lead Arranger and each Lender
for all reasonable and documented out-of-pocket costs and expenses incurred in
connection with the enforcement of any rights or remedies under this Agreement
or the other Loan Documents (including all costs and expenses incurred in
connection with any workout or restructuring in respect of the Loans, all such
costs and expenses incurred during any legal proceeding, including any
proceeding under any Debtor Relief Law, and including (i) prior to the
occurrence and continuance of an Event of Default, one counsel to the
Administrative Agent and the Lenders (and one local counsel in each applicable
jurisdiction and, in the event of any actual conflict of interest, one
additional counsel to the affected parties) and (ii) after an Event of
Default has occurred and is continuing, all Attorney Costs of counsel to the
Agents and the Lenders.  The foregoing
costs and expenses shall include all reasonable search, filing, recording and
title insurance charges and fees related thereto, and other reasonable and
documented out-of-pocket expenses incurred by any Agent.  The agreements in this Section 11.04
shall survive the termination of the Aggregate Commitments and repayment of all
other Obligations.  All amounts due under
this Section 11.04 shall be paid within ten (10) Business Days
of receipt by the Borrower of an invoice relating thereto setting forth such
expenses in reasonable detail.  If any
Loan Party fails to pay when due any costs, expenses or other amounts payable
by it hereunder or under any Loan Document, such amount may be paid on behalf
of such Loan Party by the Administrative Agent in its sole discretion.


 


Section 11.05                          Indemnification
by the Borrower.  Whether or
not the transactions contemplated hereby are consummated, the Borrower shall
indemnify and hold harmless each Agent-Related Person, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents,
trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”)
from and against any and all liabilities, obligations, losses, taxes, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including (a) prior to the occurrence and continuance of an
Event of Default, one counsel to the Administrative Agent and the Lenders (and
one local counsel in each applicable jurisdiction and, in the event of any
actual conflict of interest, one additional counsel to the affected parties)
and (b) after an Event of Default has occurred and is continuing, all
Attorney Costs of counsel to the Agents and the Lenders of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against
any such Indemnitee in any way relating to or arising out of or in connection
with (i) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby
or the consummation of the transactions contemplated thereby, (ii) any
Commitment, Loan or Letter of Credit or the use or proposed use of the 


 


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proceeds
therefrom (including any refusal by an L/C Issuer to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), or (iii) any
actual or alleged presence or release of Hazardous Materials on, at, under or
from any property currently or formerly owned or operated by the Borrower, any
Subsidiary or any other Loan Party, or any Environmental Liability related to
the Borrower, any Subsidiary or any other Loan Party, 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
(including any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) (all the foregoing,
collectively, the “Indemnified Liabilities”), in all cases, whether or
not caused by or arising, in whole or in part, out of the negligence of the
Indemnitee and whether brought by an Indemnified Party, a third party or by the
Borrower or any other Loan Party or any of the Borrower’s or such Loan Party’s
directors, shareholders or creditors, and regardless of whether any Indemnified
Party is a party thereto and whether or not any of the transactions
contemplated hereby are consummated; provided,
that, such indemnity shall not, as to any Indemnitee, be available to the
extent that such liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses or disbursements resulted
from the gross negligence, bad faith or willful misconduct of such Indemnitee
or of any affiliate, director, officer, employee, counsel, agent or
attorney-in-fact of such Indemnitee as determined by a final non-appealable
judgment of a court of competent jurisdiction. No Indemnitee shall be liable
for any damages arising from the use by others of any information or other
materials obtained through IntraLinks or other similar information transmission
systems in connection with this Agreement, nor shall any Indemnitee or any Loan
Party have any liability for any special, punitive, indirect or consequential
damages relating to this Agreement or any other Loan Document.  All amounts due under this Section 11.05
shall be paid within ten (10) Business Days after demand therefor.  The agreements in this Section 11.05
shall survive the resignation of any Agent, the replacement of any Lender or
any L/C Issuer, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.


 


Section 11.06                          Payments Set
Aside.  To the extent that any payment
by or on behalf of the Borrower is made to any Agent or any Lender, or any
Agent 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 such Agent 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 severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by any 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.


 


Section 11.07                          Successors and
Assigns.  (a)  The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that, except as otherwise provided herein (including without limitation as
permitted under Section 7.04), neither the Parent nor the Borrower
may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to
an Eligible Assignee in accordance with the requirements of Section 11.07(b),
(ii) by way of participation in accordance with the provisions of Section 11.07(e),
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of Section 11.07(g) or (iv) to an SPC in
accordance with the provisions of Section 11.07(h) (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 


 


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Section 11.07(e) and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


(b)                                 (i) 
Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more Eligible Assignees (each, an “Assignee”)
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 Section 11.07(b), participations in L/C Obligations) at the
time owing to it) with the prior written consent (such consent not to be
unreasonably withheld or delayed) of:


 


(A)                              the Borrower
(such consent not to be unreasonably withheld); provided,
that, no consent of the Borrower shall be required for an assignment of
Revolving Credit Commitments to (1) a Lender, an Affiliate of a Lender, an
Approved Fund relating thereto, (2) if a Default has occurred and is
continuing, any Assignee or (3) prior to the completion of the primary
syndication of the Revolving Credit Facility; and


 


(B)                                the L/C Issuer.


 


(ii)                                  Assignments
shall be subject to the following additional conditions:


 


(A)                              except in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund or an assignment of the entire remaining amount of the assigning Lender’s
Revolving Credit Commitment or Revolving Credit Loans, the amount of the
Revolving Credit Commitment or Revolving Credit Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1,000,000 unless the Borrower and the
Administrative Agent otherwise consents, provided,
that, (1) no such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing and (2) such amounts shall be
aggregated in respect of each Lender and its Affiliates or Approved Funds, if
any;


 


(B)                                the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption;


 


(C)                                the Assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire and any documentation required by Section 3.01(f);
and


 


(D)                               notwithstanding
anything to the contrary set forth in this  Section 11.07, no Loan Party shall
be an Assignee hereunder.


 


Subject to acceptance and
recording thereof by the Administrative Agent pursuant to Section 11.07(d) and
receipt by the Administrative Agent from the parties to each assignment of a
processing and recordation fee of $3,500, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be party to this Agreement as a Lender with respect to the interest
assigned and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement in
addition to any rights and obligations otherwise held by such assignee as 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, 


 


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11.04 and 11.05).  Upon request, and the surrender by the assigning
Lender of its Note (if any), 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 clause (b) shall
not be an effective assignment hereunder.


 


(c)                                  The L/C Issuer
may assign to one or more Eligible Assignees (other than an Approved Fund) all
or a portion of its rights and obligations under the undrawn portion of its
Letter of Credit Commitment at any time; provided, that
(i) each such assignment shall be to an Eligible Assignee (other than an
Approved Fund) and (ii) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and recording in
the Register, an Assignment and Assumption, together with a processing and
recordation fee of $3,500.


 


(d)                                 The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts (and related interest amounts) of the Loans, L/C Obligations
(specifying the Unreimbursed Amounts) and L/C Borrowings, owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, absent manifest error, and the
Borrower, the Agents and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower, any Agent and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.


 


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) (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) 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 Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and the other Loan Documents and to approve any amendment,
modification or waiver of any provision of this Agreement or the other Loan
Documents; 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 Section 11.01(a),
(b) or (c) that directly affects such Participant.  Subject to Section 11.07(f), the
Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01
(subject to the requirements of Section 3.01(e) and Section 3.01(f)),
3.04 and 3.05 (through the applicable Lender) to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.07(b).  To the extent permitted by applicable Law,
each Participant also shall be entitled to the benefits of Section 11.09
as though it were a Lender; provided, that,
such Participant agrees to be subject to Section 2.13 as though it
were a Lender.  Any Lender that sells participations shall maintain a register meeting
the requirements of Treasury Regulation Section 5f.103-1(c) (or any
successor regulation), on which it enters the name and the address of each
Participant and the principal amounts of each Participant’s participation
interest in the Commitments and/or Loans (or other rights or obligations) held
by it (the “Participant Register”). 
The entries in the Participant Register shall be conclusive, absent
manifest error, and such Lender shall treat each person whose name is recorded
in the Participant Register as the owner of such participation interest as the
owner thereof for all purposes notwithstanding any notice to the contrary.  In maintaining the Participant Register, such
Lender shall be acting as the agent of the Borrower solely for purposes of 


 


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Treasury Regulation Section 5f.103-1(c) and
undertakes no other duty, responsibility or obligation to the Borrower
(including, without limitation, in no event shall such Lender be considered a
fiduciary of the Borrower for any purpose). 
In addition to maintaining the Participant Register, such Lender shall,
upon request, show the Participant Register to the Borrower.


 


(e)                                  A Participant
shall not be entitled to receive any greater payment under Section 3.01,
3.04 or 3.05 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.


 


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


 


(g)                                 Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle identified as such
in writing from time to time by the Granting Lender to the Administrative Agent
and the Borrower (an “SPC”) the option to provide all or any part of any
Loan that such Granting Lender would otherwise be obligated to make pursuant to
this Agreement; provided, that (i) nothing
herein shall constitute a commitment by any SPC to fund any Loan and (ii) if
an SPC elects not to exercise such option or otherwise fails to make all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof.  Each party
hereto hereby agrees that (i) neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrower under this
Agreement (including its obligations under Section 3.01, 3.04
or 3.05), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable and
such liability shall remain with the Granting Lender, and (iii) the
Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. 
Notwithstanding anything to the contrary contained herein, any SPC may (i) with
notice to, but without prior consent of the Borrower and the Administrative
Agent, assign all or any portion of its right to receive payment with respect
to any Loan to the Granting Lender and (ii) disclose on a confidential
basis any non-public information relating to its funding of Loans to any rating
agency, commercial paper dealer or provider of any surety or Guarantee Obligation
or credit or liquidity enhancement to such SPC.


 


(h)                                 Notwithstanding
anything to the contrary contained herein, (1) any Lender may in
accordance with applicable Law create a security interest in all or any portion
of the Loans owing to it and the Note, if any, held by it and (2) any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities; provided,
that, unless and until such trustee actually becomes a Lender in compliance
with the other provisions of this Section 11.07, (i) no such
pledge shall release the pledging Lender from any of its obligations under the
Loan Documents and (ii) such trustee shall not be entitled to exercise any
of the rights of a Lender under the Loan Documents even though such trustee may
have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.


 


(i)                                    Notwithstanding
anything to the contrary contained herein, any L/C Issuer may, upon thirty (30)
days’ notice to the Borrower and the Lenders, resign as an L/C Issuer; provided, that, on 


 


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or prior to the expiration
of such 30-day period with respect to such resignation, the relevant L/C Issuer
shall have identified, in consultation with the Borrower or a successor L/C
Issuer willing to accept its appointment as successor L/C Issuer.  In the event of any such resignation of an
L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders
willing to accept such appointment a successor L/C Issuer hereunder; provided, that, no failure by the Borrower to
appoint any such successor shall affect the resignation of the relevant L/C
Issuer.  If an L/C Issuer resigns as an
L/C Issuer, it shall retain all the rights and obligations of an L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as an L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).


 


Section 11.08                          Confidentiality.  Each of the Agents and the Lenders agrees to
maintain the confidentiality of the Information and to not use or disclose such
information, except that Information may be disclosed (a) to its
Affiliates and its and its Affiliates’ directors, officers, employees,
trustees, investment advisors and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to
the extent requested by any Governmental Authority or examiner regulating any
Lender; (c) to the extent required by applicable Laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this
Agreement; (e) to any pledgee referred to in Section 11.07(g) or
Section 11.07(i), counterparty to a Swap Contract, Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement; (f) with
the written consent of the Borrower; (g) to the extent such Information
becomes publicly available other than as a result of a breach of this Section 11.08
by the disclosing party; (h) to any rating agency when required by it (it
being understood that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Information relating to the
Loan Parties received by it from such Lender); or (i) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder.  In addition, the Agents and the Lenders may
disclose the existence of this Agreement and information about this Agreement
to market data collectors, similar service providers to the lending industry,
and service providers to the Agents and the Lenders in connection with the
administration and management of this Agreement, the other Loan Documents, the
Commitments, and the Credit Extensions. 
For the purposes of this Section 11.08, “Information”
means all information received from any Loan Party or its Affiliates or its
Affiliates’ directors, officers, employees, trustees, investment advisors or
agents, relating to the Parent, the Borrower or any of their subsidiaries or
their business, other than any such information that is publicly available to
any Agent or any Lender prior to disclosure by any Loan Party other than as a
result of a breach of this Section 11.08, including, without
limitation, information delivered pursuant to Section 6.01, 6.02
or 6.03 hereof.


 


Section 11.09                          Setoff.  In addition to any rights and remedies of the
Lenders provided by Law, upon the occurrence and during the continuance of any
Event of Default, each Lender and its Affiliates and each L/C Issuer and its
Affiliates is authorized at any time and from time to time, without prior
notice to the Borrower or any other Loan Party, any such notice being waived by
the Borrower (on its own behalf and on behalf of each Loan Party and its
Subsidiaries) 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) at any time held by, and other Indebtedness at any time owing by, such
Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case
may be, to or for the credit or the account of the respective Loan Parties and
their Subsidiaries against any and all Obligations owing to such Lender and its
Affiliates or such L/C Issuer and its Affiliates hereunder or under any other
Loan Document, now or hereafter existing, irrespective of whether or not such
Agent or such Lender or Affiliate shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be 


 


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contingent
or unmatured or denominated in a currency different from that of the applicable
deposit or Indebtedness.  Each Lender and
L/C Issuer agrees promptly to notify the Borrower and the Administrative Agent
after any such set off and application made by such Lender or L/C Issuer, as
the case may be; provided, that, the
failure to give such notice shall not affect the validity of such setoff and
application.  The rights of the
Administrative Agent, each Lender and each L/C Issuer under this Section 11.09
are in addition to other rights and remedies (including other rights of setoff)
that the Administrative Agent, such Lender and such L/C Issuer may have.


 


Section 11.10                          Counterparts.  This Agreement and each other Loan Document
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.  Delivery by facsimile
transmission or electronic transmission of a .pdf copy of an executed
counterpart of a signature page to this Agreement and each other Loan
Document shall be effective as delivery of an original executed counterpart of
this Agreement and such other Loan Document; provided, that, original
signatures shall be promptly delivered thereafter, it being understood that
that the failure to request or deliver the same shall not limit the
effectiveness of any document or signature delivered by facsimile or electronic
transmission.


 


Section 11.11                          Integration.  This Agreement, together with the other Loan
Documents and the Fee Letter, comprises the complete and integrated agreement
of the parties on the subject matter hereof and thereof and supersedes all
prior agreements, written or oral, on such subject matter.  In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided,
that, the inclusion of supplemental rights or remedies in favor of the Agents
or the Lenders in any other Loan Document shall not be deemed a conflict with
this Agreement.  Each Loan Document was
drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.


 


Section 11.12                          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
each Agent and each Lender, regardless of any investigation made by any Agent
or any Lender or on their behalf and notwithstanding that any 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.


 


Section 11.13                          Severability.  If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby.  The invalidity of a provision
in a particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.


 


Section 11.14                          GOVERNING LAW.  (a)  THIS AGREEMENT AND EACH OTHER LOAN
DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK (EXCEPT, WITH RESPECT TO ANY OTHER LOAN DOCUMENT, AS
OTHERWISE EXPRESSLY PROVIDED THEREIN).


 


(b)                                 ANY LEGAL
ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN
EACH CASE WHETHER NOW 


 


111

















 


EXISTING OR HEREAFTER
ARISING, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN
NEW YORK COUNTY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH
STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, EACH
AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. 
THE BORROWER, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY
LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.


 


Section 11.15                          WAIVER OF RIGHT
TO TRIAL BY JURY.  EACH PARTY
TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.15 WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


Section 11.16                          Binding Effect.  This Agreement shall become effective when it
shall have been executed by the Borrower and the Administrative Agent shall
have been notified by each Lender and L/C Issuer that each such Lender and L/C
Issuer has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, each Agent and each Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lenders except as permitted by Section 7.04.


 


Section 11.17                          Judgment
Currency.  If, for the
purposes of obtaining judgment in any court, it is necessary to convert a sum
due hereunder or any other Loan Document in one currency into another currency,
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent would purchase the first currency
with such other currency on the Business Day preceding that on which final
judgment is given.  The obligation of the
Borrower in respect of any such sum due from it to the Administrative Agent or
the Lenders hereunder or under the other Loan Documents shall, notwithstanding
any judgment in a currency (the “Judgment Currency”) other than that in
which such sum is denominated in accordance with the applicable provisions of
this Agreement (the “Agreement Currency”), be discharged only to the
extent that on the Business Day following receipt by the Administrative Agent
of any sum adjudged to be so due in the Judgment Currency, the Administrative
Agent may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency.  If
the amount of the Agreement Currency so purchased is less than the sum
originally due to the Administrative Agent from the Borrower in the Agreement
Currency, the Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. 
If the amount of the Agreement Currency so purchased is greater than the
sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess to the Borrower
(or to any other Person who may be entitled thereto under applicable Law).


 


112

















 


Section 11.18                          Lender Action.  Each Lender agrees that it shall not take or
institute any actions or proceedings, judicial or otherwise, for any right or
remedy against any Loan Party or any other obligor under any of the Loan
Documents or the Secured Hedge Agreements (including the exercise of any right
of setoff, rights on account of any banker’s lien or similar claim or other
rights of self-help), or institute any actions or proceedings, or otherwise
commence any remedial procedures, with respect to any Collateral or any other
property of any such Loan Party, without the prior written consent of the
Administrative Agent.  The provisions of
this Section 11.18 are for the sole benefit of the Lenders and
shall not afford any right to, or constitute a defense available to, any Loan
Party.


 


Section 11.19                          USA PATRIOT Act.  Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA PATRIOT 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 to identify the Borrower in accordance with the USA PATRIOT
Act.  The Borrower agrees to provide, and
to cause each other Loan Party to provide, such information promptly upon
request.


 


[Signature
Pages Follow]


 


113
















 


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


 


	
   

  	
  GEOKINETICS HOLDINGS USA, INC.,

  
	
   

  	
   

  	
     as Borrower,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott McCurdy

  
	
   

  	
   

  	
  Name:

  	
  Scott McCurdy

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


114

















 


	
   

  	
  ROYAL BANK OF CANADA

  
	
   

  	
   

  	
  as Administrative Agent and Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ann Hurley

  
	
   

  	
   

  	
  Name:

  	
  Ann Hurley

  
	
   

  	
   

  	
  Title 

  	
  Manager, Agency

  



 


115

















 


	
   

  	
  ROYAL BANK OF CANADA,

  
	
   

  	
   

  	
  and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Jay T. Sartain

  
	
   

  	
   

  	
  Name:

  	
  Jay T. Sartain

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


116

















 


	
   

  	
  ROYAL BANK OF CANADA,

  
	
   

  	
   

  	
  as L/C Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Jay T. Sartain

  
	
   

  	
   

  	
  Name:

  	
  Jay T. Sartain

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


117

















 


	
   

  	
  Capital One, N.A.,

  
	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Don Backer

  
	
   

  	
   

  	
  Name:

  	
  Don Backer

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  



 


118

















 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew S. Bae

  
	
   

  	
   

  	
  Name:

  	
  Andrew S. Bae

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


119

















 


	
   

  	
  Siemens Financial Services,

  
	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Doug Maher

  
	
   

  	
   

  	
  Name:

  	
  Doug Maher

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Carol Walters

  
	
   

  	
   

  	
  Name:

  	
  Carol Walters

  
	
   

  	
   

  	
  Title:

  	
  Vice President-Documentation

  
	
   

  	
   

  	
   

  
					



 


120
















 


EXHIBIT A


 


FORM OF LOAN NOTICE


 


[Date]


Royal
Bank of Canada,


as
Administrative Agent under the Credit Agreement


referred
to below


 


	
  P.O. Box 50, 200 Bay Street

  
	
  Royal Bank Plaza

  
	
  12th Floor, South Tower

  
	
  Toronto, Ontario M5J 2W7

  
	
  Attention:

  	
  Manager,
  Agency Service Group

  
	
  Facsimile:

  	
  (416)
  842-4023

  



 


Ladies and Gentlemen:


 


The undersigned, Geokinetics Holdings USA, Inc.
(the “Borrower”), refers to the
Credit Agreement dated as of February 12, 2010 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”;
the terms defined therein being used herein as therein defined), among the
Borrower, the Lenders party thereto, Royal Bank of Canada, as Collateral Agent
and Administrative Agent for the Lenders and RBC Capital Markets, as Sole Lead
Arranger and Bookrunner, and hereby gives you notice, irrevocably, pursuant to Section 2.02
of the Credit Agreement that the undersigned hereby requests a [Borrowing]
[conversion] [continuation] [L/C Credit Extension] under the Credit Agreement,
and in that connection sets forth below the information relating to such
[Borrowing] [conversion] [continuation] [L/C Credit Extension] (the “Proposed [Borrowing] [conversion] [continuation] [L/C Credit
Extension]”) as required by [Section 2.02(a)] [Section 2.03(b)]
of the Credit Agreement:


[For a Borrowing:


 


(a)           Aggregate or
Face Amount of [Borrowing] [conversion] [continuation]: $              


 


(b)           Date of
[Borrowing] [conversion] [continuation] (which shall be a Business Day):                  


 


(c)           Type of
Borrowing (Base Rate or Eurodollar Rate): 
                  


 


(d)           [Interest
Period (if a Eurodollar Rate Loan):(1)  
                  ]]


 






(1)           As to each Eurodollar Rate Loan, an
Interest Period may be one, two or three months and such other shorter interest
period as may be permitted by the Lenders and the Administrative Agent.


 

















 


[For
an L/C Credit Extension [Borrower must submit a
Loan Notice for each issuance, extension of the expiry date, renewal or
increase of the amount of each Letter of Credit]:


 


(a)           Face Amount of
Letter of Credit: $                  


 


(b)           Drawing Date
(which shall be a Business Day):                    


 


(c)           Expiry Date(2):
                             ]


 


[The undersigned hereby certifies that the following
statements will be true on the date of the Proposed Borrowing:


 


(A)          [Subject to the
Conditions Precedent to Credit Extensions,](3) the representations and
warranties contained in each Loan Document are correct in all material respects
on and as of the date of the Proposed Borrowing, before and after giving effect
to the Proposed Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, other than any such representations or
warranties that, by their terms, refer to a specific date other than the date
of the Proposed Borrowing, in which case, as of such specific date.


 


(B)           No Default has
occurred and is continuing, or would result from such Proposed Borrowing or
from the application of the proceeds therefrom.](4)


 






(2) This date must
be at least five Business Days prior to the scheduled Maturity Date in effect
for the Revolving Credit Facility.


 


(3) Insert
if the Proposed Borrowing is the Initial Extension of Credit.


 


(4) Insert
if Proposed Borrowing.


 

















 


Delivery of an executed counterpart of this Loan
Notice by telecopier shall be effective as delivery of an original executed
counterpart of this Loan Notice.


 


 


	
   

  	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GEOKINETICS
  HOLDINGS USA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT B


 


FORM OF PREPAYMENT
NOTICE


 


Royal Bank of Canada,


as Administrative Agent
under the Credit Agreement


referred to below


 


	
  P.O. Box 50, 200 Bay Street

  
	
  Royal Bank Plaza

  
	
  12th Floor, South Tower

  
	
  Toronto, Ontario M5J 2W7

  
	
  Attention:

  	
  Manager,
  Agency Service Group

  
	
  Facsimile:

  	
  (416) 842-4023

  



 


Ladies and Gentlemen:


 


The undersigned, Geokinetics
Holdings USA, Inc. (the “Borrower”),
refers to the Credit Agreement dated as of February 12, 2010 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”;
the terms defined therein being used herein as therein defined), among the
Borrower, the Lenders party thereto, Royal Bank of Canada, as Collateral Agent
and Administrative Agent for the Lenders and RBC Capital Markets, as Sole Lead
Arranger and Bookrunner, and hereby gives you notice that, pursuant to Section 2.05[(a)][(b)]
of the Credit Agreement, on [date](5), the undersigned intends to
[prepay/permanently reduce] the Revolving Credit Loans, in the amount of $                     (6).


 


 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GEOKINETICS HOLDINGS USA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


 






(5)           Must be a date at least five
Business Days following notice of prepayment in the case of a mandatory
prepayment pursuant to Section 2.05(b); must be a date at least
three Business Days following date of 
notice of prepayment in the case of a voluntary prepayment of Eurodollar
Rate Loans under Section 2.05(a); and must be a date at least one
Business Day following the date of the notice of prepayment in the case of a
voluntary prepayment of a Base Rate Loan under Section 2.05(a).


 


(6)           Prepayments must be in a minimum principal amount of
(i) $1,000,000 or a whole multiple of $500,000 in excess thereof for
Eurodollar Rate Loans or (ii) $500,000 or a whole multiple of $100,000 in
excess thereof for Base Rate Loans; or, in each case, if less, the entire
principal amount thereof then outstanding.


 

















 


EXHIBIT C


 


FORM OF NOTE


 


	
  $               

  	
  Dated:             ,
  20   

  



 


FOR VALUE RECEIVED, the undersigned, Geokinetics
Holdings USA, Inc., a Delaware corporation (the “Borrower”), HEREBY
PROMISES TO PAY                                         
or its registered assigns (the “Lender”) for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below; terms defined
therein, unless otherwise defined herein, being used herein as therein defined)
on the Maturity Date the aggregate principal amount of the Revolving Credit
Loans and the L/C Advances owing to the Lender by the Borrower pursuant to the
Credit Agreement dated as of February 12, 2010 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”)
among the Borrower, the Lenders party thereto, Royal Bank of Canada, as
Collateral Agent and Administrative Agent for the Lenders and RBC Capital
Markets, as Sole Lead Arranger and Bookrunner.


 


The Borrower promises to pay interest on the unpaid
principal amount of each Revolving Credit Loan and L/C Advance from the date of
such Revolving Credit Loan or L/C Advance, as the case may be, until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement.


 


Both principal and interest are payable in lawful
money of the United States of America to Royal Bank of Canada, as
Administrative Agent, at such office and in the manner specified in the Credit
Agreement.  Each Revolving Credit Loan
and L/C Advance owing to the Lender by the Borrower, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto, which is part of this
Note; provided, however, that the failure of the Lender to
make any such recordation or endorsement shall not affect the Obligations of
the Borrower under this Note and the other Loan Documents.


 


This promissory note is one of the Notes referred to
in, and is entitled to the benefits of, the Credit Agreement.  The Credit Agreement, among other things, (i) provides
for the making of Revolving Credit Loans or L/C Advances by the Lender to or for
the benefit of the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such Revolving Credit Loan
and L/C Advance being evidenced by this Note, and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.  The Obligations of the Borrower under this
Note and the other Loan Documents, and the Obligations of the other Loan
Parties under the Loan Documents, are secured by the Collateral as provided in
the Loan Documents.


 


The Borrower, for itself, its successors and
assigns, hereby waives diligence, presentment, protest and demand and notice of
protest, demand, dishonor and non-payment of this Note.


 

















 


This
Note may not be transferred or assigned by the Lender to any Person EXCEPT IN
COMPLIANCE WITH THE TERMS OF THE CREDIT AGREEMENT.  The rights evidenced by this Note to receive
principal and interest may only be transferred if the transfer is registered on
a record of ownership and the transferee is identified as the owner of an
interest in the obligation pursuant to SECTION 11.07 OF THE CREDIT
AGREEMENT.  This Note may not at any time
be endorsed to, or to the order of, bearer.


 


This
Note shall be governed by, and construed in accordance with, the laws of the
State of New York.


 


 


	
   

  	
   

  	
  GEOKINETICS
  HOLDINGS USA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 

















 


LOANS OR ADVANCES AND PAYMENTS OF PRINCIPAL


 


	
  Date

  	
   

  	
  Amount of

  Loan or Advance

  	
   

  	
  Amount of

  Principal Paid

  or Prepaid

  	
   

  	
  Unpaid

  Principal

  Balance

  	
   

  	
  Notation

  Made By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


EXHIBIT D


 


FORM OF COMPLIANCE
CERTIFICATE


 


Financial Statement Date:             


 


THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:


 


1.             I am the Chief Financial
Officer of GEOKINETICS HOLDINGS USA, INC. (the “Parent”).


 


2.             I have reviewed the terms of
that certain Credit Agreement, dated as of February 12, 2010 (the “Credit
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined), among Geokinetics Holdings USA, Inc.
(the “Borrower”), the Lenders party thereto, Royal Bank of Canada, as
Collateral Agent and Administrative Agent for the Lenders and RBC Capital
Markets, as Sole Lead Arranger and Bookrunner.


 


3.     [Use following paragraph 3 for
annual financial statements]This Certificate is
delivered in conjunction with the annual audited consolidated financial
statements for the Parent and its Subsidiaries for the Fiscal Year of the
Parent ended as of                           ,
20     required to be delivered by Section 6.01(a) of
the Credit Agreement, together with the report and opinion of an independent
registered public accounting firm of nationally recognized standing.][Use following paragraph 3 for fiscal quarter-end
financial statements] [This
Certificate is delivered in conjunction with the consolidated balance sheet and
the related consolidated statement of income or operations and a consolidated
statement of cash flows of the Parent and its Subsidiaries required by Section 6.01(b) of
the Credit Agreement for the fiscal quarter of the Parent ended as of the above
date.  Such financial statements fairly
present, in all material respects, the financial condition, results of
operations, stockholder’s equity and cash flows of the Parent and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of
footnotes.]


 


4.             Based on my knowledge, the
financial statements do not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not misleading with
respect to the period covered by the financial statements.


 


5.             The undersigned has reviewed
and is familiar with the terms of the Credit Agreement and has made, or has
caused to be made under his/her supervision, a detailed review of the
transactions and condition (financial or otherwise) of the Parent and its
Subsidiaries during the accounting period covered by the financial statements
referred to in this Certificate.


 


6.             A review of the activities
of the Parent and its Subsidiaries during such fiscal period has been made
under the supervision of the undersigned with a view to determining whether
during such fiscal period the Parent and its Subsidiaries performed and
observed all their respective Obligations under the Loan Documents, and


 


[select
one:]


 

















 


[each of the Loan Parties performed and observed
each covenant and condition of the Loan Documents applicable to it, and no
Event of Default or Default has occurred and is continuing.]


 


—or—


 


[the following covenants or conditions have not been
performed or observed and the following is a list of each such Default, its
nature and status and steps implemented to correct such Default or Event of
Default:]


 


7.             The representations and
warranties of the Borrower contained in Article V of the Agreement,
or which are contained in any document furnished at any time under or in
connection with the Loan Documents, are true and correct in all material
respects on and as of the date hereof, 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, including the
statements in connection with which this Certificate is delivered.


 


8.             [Use following paragraph 8 for annual financial
statements][The financial
covenant analyses and information set forth on Schedules 2, 3, 4
and 5 attached hereto, demonstrating compliance with the covenants set
forth in Sections 7.02(j)(v), 7.05(l), 7.13, 7.14, 7.15 and 7.16 of the Credit
Agreement, are true and accurate on and as of the date of this Certificate.][Use following paragraph 8 for
fiscal quarter-end financial statements] [The financial covenant analyses and
information set forth on Schedules 2 and 3 attached hereto,
demonstrating compliance with the covenants set forth in Sections 7.13, 7.14,
7.15 and 7.16 of the Credit Agreement, are true and accurate on and as of the
date of this Certificate.]


 


[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]


 

















 


IN WITNESS WHEREOF, the undersigned has signed this Certificate as of the           
day of               ,
20   .


 


	
   

  	
   

  	
  GEOKINETICS,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  



 


 


	
  Schedule 1

  	
  –

  	
  Consolidated
  Adjusted EBITDA Calculation

  
	
   

  	
   

  	
   

  
	
  Schedule 2

  	
  –

  	
  Calculations
  Demonstrating Compliance With Financial Covenants

  
	
   

  	
   

  	
   

  
	
  Schedule 3

  	
  –

  	
  Calculations
  Regarding Capital Expenditures

  
	
   

  	
   

  	
   

  
	
  [Schedule
  4

  	
  –

  	
  Permitted
  Acquisitions

  
	
   

  	
   

  	
   

  
	
  Schedule 5

  	
  –

  	
  Permitted
  Dispositions](7)

  



 






(7) Add Schedules 4 and 5 only for annual financial statements.


 
















 


SCHEDULE
1  


 


CONSOLIDATED
ADJUSTED EBITDA CALCULATION


 


(FOR THE
[FISCAL QUARTER] [FISCAL YEAR] COMMENCING        
AND ENDING      )


 


	
  Consolidated
  Adjusted EBITDA:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (1) The
  sum of (without duplication, including for purposes of
  determining Consolidated Net Income), determined on a consolidated basis for
  Borrower and its Subsidiaries, to the extent deducted in determining
  Consolidated Net Income for such period:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)  Consolidated Net Income (or net loss)

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (b)  Consolidated Interest Expense (including
  amortization or write-off of debt discount)

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (c)  taxes based on income

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (d)  non-cash unrealized net losses under any
  permitted Swap Contracts

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (e)  Consolidated Depreciation and
  Amortization Expense

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (f)  Expenses related to the Transaction to
  the extent not capitalized

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (g)  Any one-time non-cash charges in
  connection with a Permitted Acquisition or permitted Investments

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (h)  Any one-time non-cash expenses or
  charges incurred in connection with the issuance, exercise, cancellation or
  appreciation of options and other equity grants in respect of Equity
  Interests

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (i)  To the extent decreasing consolidated
  net income for such period, any extraordinary items in accordance with GAAP

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (j)  other non-recurring, non-cash charges
  and non-cash losses in respect of unrealized currency translations, in each
  case, deducted in arriving at Consolidated Net Income

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Minus

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (2) The
  sum of:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)  non-cash credits included in arriving at
  such Consolidated Net Income (or net loss)

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (b)  non-cash unrealized net gains in respect
  of permitted Swap Contracts

  	
   

  	
  $ 

  	
   

  



 

















 


	
  (c) other non-cash extraordinary gains to the
  extent included in calculating Consolidated Net Income

  	
   

  	
  $ 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  CONSOLIDATED ADJUSTED EBITDA

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $ 

  	
   

  



 

















 


SCHEDULE
2


 


CALCULATIONS
DEMONSTRATING COMPLIANCE


WITH
FINANCIAL COVENANTS


 


1.     Total Leverage Ratio  (Section 7.13
of the Credit Agreement)


 


	
  (i)   Consolidated Total Debt of
  the Parent and its Subsidiaries (determined on a consolidated basis in
  accordance with GAAP but excluding the effect of any discounting of
  Indebtedness resulting from the application of purchase accounting in
  connection with the Transaction or any Permitted Acquisition) as of the last
  day of the Test Period, consisting of the sum of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (a)  Indebtedness
  for borrowed money

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  (b)  obligations
  in respect of Capitalized Leases

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  (c)  debt
  obligations evidenced by promissory notes or similar instruments

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  [Exclude
  Indebtedness in respect of (i) all letters of credit except (x) to
  the extent of unreimbursed amounts thereunder and (y) in respect of the
  L/C Exposure of any Defaulting Lender to the extent not Cash Collateralized,
  (ii) Parent’s Series C Preferred Stock and any other Equity
  Interest or hybrid security of the Parent that is determined to constitute
  Indebtedness in accordance with GAAP and (iii) obligations under Swap
  Contracts.]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Consolidated Total Debt [(a) +
  (b) + (c)]

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  (ii)  Consolidated
  Adjusted EBITDA for the Test Period ending on the computation date (per
  Schedule 1)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  (iii)  Total
  Leverage Ratio (i)/(ii):

  	
   

  	
     .   :1.00

  
	
   

  	
   

  	
   

  
	
  (iv)  Total
  Leverage Ratio not to be greater than:

  	
   

  	
   

  



 




	
  Fiscal Quarter Ending

  	
   

  	
  Total Leverage Ratio

  
	
  June 30, 2010

  	
   

  	
  3.95:1.00

  
	
  September 30, 2010

  	
   

  	
  3.00:1.00

  
	
  December 31, 2010

  	
   

  	
  2.75:1.00

  
	
  March 31, 2011 and thereafter

  	
   

  	
  2.50:1.00

  






 

















 


2.     Interest Coverage Ratio (Section 7.14
of the Credit Agreement)


 


	
  (i) 
   Consolidated Adjusted EBITDA for the Test Period as of the computation
  date (per Schedule 1):

  	
   

  	
  $ 

  
	
   

  	
   

  	
   

  
	
  (ii)  Consolidated
  Interest Expense for the Test Period ((a) minus (b)):

  	
   

  	
  $ 

  
	
   

  	
   

  	
   

  
	
  (a) consolidated
  cash interest expense of the Borrower and its Subsidiaries, to the extent
  such expense was deducted (and not added back) in computing Consolidated Net
  Income

   

  [include
  (i) all cash commissions, discounts and other fees and charges owed with
  respect to letters of credit or bankers acceptances, (ii) the cash
  interest component of Capitalized Lease Obligations, and (iii) net cash
  payments, if any, made (less net payments, if any, received) pursuant to
  interest rate obligations under any Swap Contracts with respect to
  Indebtedness]

   

  [exclude
  (i) penalties and interest relating to taxes, (ii) any additional
  cash interest owing pursuant to any registration rights agreement with
  respect to securities, (iii) any expensing of bridge, commitment and
  other financing fees, (iv) any interest expense associated with the
  Parent’s Series C Preferred Stock or any other Equity Interest or hybrid
  security that is determined to constitute Indebtedness in accordance with
  GAAP and (v) any accretion of accrued and unpaid interest on discounted
  liabilities]

  	
   

  	
  

  $

  
	
   

  	
   

  	
   

  
	
  (b) cash
  interest income

  	
   

  	
  $ 

  
	
   

  	
   

  	
   

  
	
  (iii) Interest
  Coverage Ratio (i)/(ii):

  	
   

  	
    .    1.00

  
	
   

  	
   

  	
   

  
	
  (iv) Interest
  Coverage Ratio not to be less than 2.50:1.00

  	
   

  	
   

  



 

















 


3.     Fixed Charge Coverage Ratio  (Section 7.15
of the Credit Agreement)


 


	
  1.

  	
   

  	
  Consolidated
  Adjusted EBITDA for the Test Period (per Schedule 1)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Maintenance
  Capital Expenditures for the Test Period

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Cash
  tax payments for the Test Period

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Consolidated
  Interest Expense for subject period (per item 2(ii) of Interest Coverage
  Ratio calculation above)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Scheduled
  repayments of principal amounts of Indebtedness for such Test Period whether
  or not actually paid during such Test Period

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Fixed
  Charge Coverage Ratio [{1 - (2 + 3)} / (4 + 5 )]:

  	
   

  	
  :   1.00

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Actual
  Ratio not to be less than:

  	
   

  	
   

  



 




	
  Fiscal Quarter Ending

  	
   

  	
  Total Leverage Ratio

  
	
  June 30, 2010

  	
   

  	
  1.25:1.00

  
	
  September 30, 2010 and thereafter

  	
   

  	
  1.50:1.00

  






 
















 


SCHEDULE
3


 


CALCULATIONS
REGARDING CAPITAL EXPENDITURES


 


Capital Expenditures  (Section 7.16 of the Credit Agreement)


 


	
  (i) Capital
  Expenditures for the Test Period [any Capital Expenditures related to the
  prefunded amount of any investment in a multi-client data acquisition program
  shall be excluded from the calculation of Capital Expenditures if such
  multi-client program is at least 75% prefunded at the time that surveying
  commences for such program, provided that the non-prefunded amount of any
  such multi-client program shall not exceed $5,000,000 in the aggregate for
  any such program]:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  (ii) Capital
  Expenditures as of the last day of the immediately preceding Fiscal Quarter
  (or $0 in the case of a test Period which is the first Fiscal Quarter of a Fiscal
  Year):

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  (iii) Capital
  Expenditures permitted for the current Fiscal Year:

  	
   

  	
  $

  	
  150,000,000

  
	
   

  	
   

  	
   

  
	
  (iv) Excess
  Amount carryover, if any, from the prior Fiscal Year:(1)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  (v) Total
  permitted Capital Expenditures (sum of (iii) and (iv))

  	
   

  	
  $

  	
   

  



 






(1) 100% of the Excess Amount from the
immediately preceding fiscal year, to the extent it has not already been
expended.


 

















 


SCHEDULE 4


 


PERMITTED ACQUISITIONS


 


Permitted Acquisitions made during the current
Reporting Period pursuant to the definition of Permitted Acquisitions:


[Date]     [Acquisition]        [Amount]


 


[Date]     [Acquisition]        [Amount]


 


(a) Consideration Paid:


 


Aggregate total consideration paid in respect of all acquisitions made
after the Closing Date:        $


 


Maximum Permitted: $50,000,000 in the aggregate


 


(b) Available domestic unrestricted cash (determined in accordance
with GAAP), together with undrawn amounts under the Revolving Credit Facility
after giving effect to the Permitted Acquisitions:        $


 


Minimum Required:     $10,000,000


 


(c) Pro
Forma Compliance:  After giving Pro Forma
Effect to the Permitted Acquisitions, Borrower is in pro forma compliance with
the Financial Covenants set forth in Section 7.13 (Total Leverage Ratio)
and Section 7.14 (Interest Coverage Ratio):    Yes   No 


 

















 


SCHEDULE 5


 


PERMITTED DISPOSITIONS


 


[Date]     [Disposition]         [Amount]


 


[Date]     [Disposition]         [Amount]


 


Consideration Paid:


 


(i)        Aggregate
fair market value of Dispositions made pursuant to Section 7.05(l):   $


 


Maximum
Permitted:    $10,000,000


 


Purchase price paid to the
Borrower or such Subsidiary for such Disposition shall be no less than the fair
market value of such asset at the time of such sale.


 


(ii)       Amount
actually received as cash consideration:     $


 


Percentage of Disposition
consideration received as cash:         %


[To be not less than 75%]


 
















 


EXHIBIT
E


 


FORM OF


ASSIGNMENT
AND ASSUMPTION


 


Reference is made to the Credit Agreement dated as
of February 12, 2010 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”; the terms defined therein,
unless otherwise defined herein, being used herein as therein defined) among
Geokinetics Holdings USA, Inc., as Borrower, the Lenders party thereto,
Royal Bank of Canada, as Collateral Agent and Administrative Agent for the
Lenders and RBC Capital Markets, as Sole Lead Arranger and Bookrunner.


 


The Assignor referred to on the signature page attached
hereto (the “Assignor”)
and the Assignee referred to on the signature page attached hereto (the “Assignee”) agree with
respect to all information relating to it and its assignment hereunder and on
Schedule 1 hereto as follows:


 


(1)           The Assignor hereby irrevocably sells and assigns, without
recourse except as to the representations and warranties made by it herein, to
the Assignee, and the Assignee hereby irrevocably purchases and assumes from
the Assignor, an interest in and to the Assignor’s rights and obligations under
the Credit Agreement as of the date hereof equal to the percentage interest
specified on Schedule 1 hereto of all outstanding rights and obligations
under the [Revolving Credit Facility][Letter of Credit Facility] specified on
Schedule 1 hereto.


 


(2)           The Assignor: (i) represents and warrants that its
name set forth on Schedule 1 hereto is its legal name, that it is the legal and
beneficial owner of the interest or interests being assigned by it hereunder
and that such interest or interests are free and clear of any lien, encumbrance
or other adverse claim; (ii) has the full power and authority, and has
taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated thereby; (iii) makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any
Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, any Loan Document or any other instrument or document furnished pursuant
thereto; (iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant thereto;
and (v) attaches the Note or Notes, if any, held by the Assignor and
requests that the Administrative Agent exchange such Note or Notes for an
amended and restated Note payable to the order of the Assignee in an amount
equal to the Commitments and/or Loans assumed by the Assignee pursuant hereto
or new Notes payable to the order of the Assignee in an amount equal to the
Commitments and/or Loans assumed by the Assignee pursuant hereto and the
Assignor in an amount equal to the Commitments and/or Loans retained by
Assignor under the Credit Agreement.


 


(3)           The Assignee: (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements
referred to in Section 6.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption; (ii) has the full
power and authority, and has taken all actions necessary to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement; (iii) agrees
that it will, independently and without reliance upon any Agent, the Assignor
or any other Lender and based on such 


 

















 


documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iv) represents and warrants
that its name set forth on Schedule 1 hereto is its legal name; (v) confirms
that it is an Eligible Assignee; (vi) appoints and authorizes each Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto; (vii) agrees that it will perform in accordance with their terms
all of the obligations that by the terms of the Credit Agreement are required
to be performed by it as a Lender; (viii) attaches any U.S. Internal
Revenue Service forms required under Section 3.01 of the Credit
Agreement; (ix) it has the capacity to make Revolving Credit Loans in
Dollars; and (x) it will perform all of the obligations which by the terms
of the Loan Documents shall be performed by a Lender.


 


(4)           Following the execution of this Assignment and Assumption,
it will be delivered to the Administrative Agent for acceptance and recording
by the Administrative Agent.  The
effective date for this Assignment and Assumption (the “Effective Date”)
shall be the date of acceptance hereof by the Administrative Agent.


 


(5)           Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) such Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Assumption,
have the rights and obligations of a Lender thereunder and (ii) such
Assignor shall, to the extent provided in this Assignment and Assumption,
relinquish its rights and be released from its obligations under the Credit
Agreement (other than its rights and obligations under the Loan Documents that
are specified under the terms of such Loan Documents to survive the payment in
full of the Obligations of the Loan Parties under the Loan Documents to the
extent any claim thereunder relates to an event arising prior to the Effective
Date of this Assignment and Assumption) and, if this Assignment and Assumption
covers all of the remaining portion of the rights and obligations of such
Assignor under the Credit Agreement, such Assignor shall cease to be a party
thereto.


 


(6)           Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the other Loan Documents in respect
of the interest assigned hereby (including, without limitation, all payments of
principal, interest and commitment fees with respect thereto) to such
Assignee.  Such Assignor and such
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the other Loan Documents for periods prior to the Effective Date
directly between themselves.


 


(7)           This Assignment and Assumption shall be governed by, and
construed in accordance with, the laws of the State of New York.


 


(8)           This Assignment and Assumption may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.  Delivery of an executed
counterpart of a signature page to this Assignment and Assumption by
facsimile or an electronic transmission of a .pdf copy thereof shall be
effective as delivery of an original executed counterpart of this Assignment
and Assumption.


 

















 


IN WITNESS WHEREOF, each Assignor and each Assignee
have caused this Assignment and Assumption to be executed by their officers
thereunto duly authorized as of the date specified thereon.


 


 


	
   

  	
                        ,
  as Assignor

  
	
   

  	
  [Type or print legal name of Assignor]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:                           , 20   

  



 

















 


	
   

  	
                        ,
  as Assignee

  
	
   

  	
  [Type or print legal name of Assignee]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:                           ,
  20  

  
	
   

  	
  Applicable Lending Office:

  



 

















 


	
   

  	
  [                      ,
  as L/C Issuer]

  
	
   

  	
  [Type or print legal name of [L/C Issuer](9)

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:                           ,
  20  

  
	
   

  	
  Applicable Lending Office:

  



 






(9) Consent of L/C
Issuer required in respect of assignments of Revolving Credit Facilities.


 

















 


	
  Accepted
  [and Approved] this     

  	
   

  
	
  Day
  of
                      ,
  20   

  	
   

  
	
   

  	
   

  
	
  ROYAL
  BANK OF CANADA,

  	
   

  
	
        as
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


	
  [Approved
  this
               day

  	
   

  
	
  of
                                       ,
  20

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  GEOKINETICS
  HOLDINGS USA, INC.

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:](10)

  	
   

  



 






(10)        Consent of
Borrower required in respect of assignments of Revolving Credit Commitments,
unless (1) to a Lender, an Affiliate of a Lender, an Approved Fund
relating thereto, (2) a Default has occurred and is continuing, any
Assignee or (3) prior to the completion of the primary syndication of the
Revolving Credit Facility.


 

















 


	
  [Approved
  this
               day

  	
   

  
	
  of
                                       ,
  20

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [NAME
  OF ISSUING BANK]

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:]

  	
   

  



 
















 


SCHEDULE 1

TO

ASSIGNMENT AND ASSUMPTION


 


	
  Revolving
  Credit Facility

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percentage interest assigned

  	
   

  	
   

  	
  %

  	
   

  	
  %

  	
   

  	
  %

  	
   

  	
  %

  	
   

  	
  %

  
	
  Revolving Credit Commitment assigned

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
  (1)Aggregate
  outstanding principal amount of Revolving Credit Loans assigned

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
  Letter of
  Credit Facility

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)Letter of
  Credit Commitment assigned

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  



 






(1)           Except in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender’s Revolving Credit Commitment
or Revolving Credit Loans, the amount of the Revolving Credit Commitment or
Revolving Credit Loans of the assigning Lender subject to each such assignment
shall not be less than $1,000,000 unless the Borrower and the Administrative
Agent otherwise consent, provided, that, (1) no
such consent of the Borrower shall be required if an Event of Default has
occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its Affiliates or Approved Funds, if any.


 


(2)           The L/C Issuer may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under the
undrawn portion of its Letter of Credit Commitment at any time, subject to the
terms and conditions of Section 11.07(c) of the Credit
Agreement.