Exhibit 10.1





Exhibit 10.1




 




CREDIT AGREEMENT




Dated as of February 12, 2010




among




EBIX, INC.

as the Borrower,




THE DOMESTIC SUBSIDIARIES OF THE BORROWER,

as the Guarantors,




BANK OF AMERICA, N.A.,

as Administrative Agent,




and




THE LENDERS PARTY HERETO




 



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	21	 
	1.03 Accounting Terms
	 	 	21	 
	1.04 Rounding
	 	 	22	 
	1.05 Times of Day
	 	 	22	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	22	 
	2.01 Commitments
	 	 	22	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	23	 
	2.03 Prepayments
	 	 	25	 
	2.04 Termination or Reduction of Aggregate Revolving Commitments
	 	 	26	 
	2.05 Repayment of Loans
	 	 	27	 
	2.06 Interest
	 	 	27	 
	2.07 Fees
	 	 	28	 
	2.08 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	28	 
	2.09 Evidence of Debt
	 	 	29	 
	2.10 Payments Generally; Administrative Agent’s Clawback
	 	 	29	 
	2.11 Sharing of Payments by Lenders
	 	 	31	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	31	 
	3.01 Taxes
	 	 	31	 
	3.02 Illegality
	 	 	34	 
	3.03 Inability to Determine Rates
	 	 	34	 
	3.04 Increased Costs
	 	 	35	 
	3.05 Compensation for Losses
	 	 	36	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	36	 
	3.07 Survival
	 	 	37	 
	ARTICLE IV GUARANTY
	 	 	37	 
	4.01 The Guaranty
	 	 	37	 
	4.02 Obligations Unconditional
	 	 	37	 
	4.03 Reinstatement
	 	 	38	 
	4.04 Certain Additional Waivers
	 	 	38	 
	4.05 Remedies
	 	 	39	 
	4.06 Rights of Contribution
	 	 	39	 
	4.07 Guarantee of Payment; Continuing Guarantee
	 	 	39	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	39	 
	5.01 Conditions of Initial Credit Extension
	 	 	39	 
	5.02 Conditions to all Credit Extensions
	 	 	42	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	42	 
	6.01 Existence, Qualification and Power
	 	 	42	 
	6.02 Authorization; No Contravention
	 	 	42	 
	6.03 Governmental Authorization; Other Consents
	 	 	43	 
	6.04 Binding Effect
	 	 	43	 
	6.05 Financial Statements; No Material Adverse Effect
	 	 	43	 
	6.06 Litigation
	 	 	44	 
	6.07 No Default
	 	 	44	 
	6.08 Ownership of Property; Liens
	 	 	44	 
	6.09 Environmental Compliance
	 	 	44	 






 


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	6.10 Insurance
	 	 	45	 
	6.11 Taxes
	 	 	45	 
	6.12 ERISA Compliance
	 	 	45	 
	6.13 Subsidiaries
	 	 	46	 
	6.14 Margin Regulations; Investment Company Act
	 	 	46	 
	6.15 Disclosure
	 	 	46	 
	6.16 Compliance with Laws
	 	 	47	 
	6.17 Intellectual Property; Licenses, Etc.
	 	 	47	 
	6.18 Solvency
	 	 	47	 
	6.19 Perfection of Security Interests in the Collateral
	 	 	47	 
	6.20 Business Locations
	 	 	47	 
	6.21 Labor Matters
	 	 	47	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	48	 
	7.01 Financial Statements
	 	 	48	 
	7.02 Certificates; Other Information
	 	 	48	 
	7.03 Notices
	 	 	51	 
	7.04 Payment of Obligations
	 	 	51	 
	7.05 Preservation of Existence, Etc.
	 	 	52	 
	7.06 Maintenance of Properties
	 	 	52	 
	7.07 Maintenance of Insurance
	 	 	52	 
	7.08 Compliance with Laws
	 	 	52	 
	7.09 Books and Records
	 	 	53	 
	7.10 Inspection Rights
	 	 	53	 
	7.11 Use of Proceeds
	 	 	53	 
	7.12 Additional Subsidiaries
	 	 	53	 
	7.13 ERISA Compliance
	 	 	53	 
	7.14 Pledged Assets
	 	 	54	 
	7.15 Post-Closing Deliverables
	 	 	54	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	55	 
	8.01 Liens
	 	 	55	 
	8.02 Investments
	 	 	56	 
	8.03 Indebtedness
	 	 	57	 
	8.04 Fundamental Changes
	 	 	57	 
	8.05 Dispositions
	 	 	58	 
	8.06 Restricted Payments
	 	 	58	 
	8.07 Change in Nature of Business
	 	 	58	 
	8.08 Transactions with Affiliates and Insiders
	 	 	58	 
	8.09 Burdensome Agreements
	 	 	59	 
	8.10 Use of Proceeds
	 	 	59	 
	8.11 Financial Covenants
	 	 	59	 
	8.12 Prepayment of Other Indebtedness, Etc.
	 	 	60	 
	8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of
Entity
	 	 	60	 
	8.14 Ownership of Subsidiaries
	 	 	60	 
	8.15 Sale Leasebacks
	 	 	60	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	60	 
	9.01 Events of Default
	 	 	60	 
	9.02 Remedies Upon Event of Default
	 	 	62	 
	9.03 Application of Funds
	 	 	63	 
	ARTICLE X ADMINISTRATIVE AGENT
	 	 	63	 
	10.01 Appointment and Authority
	 	 	63	 
	10.02 Rights as a Lender
	 	 	64	 






 


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	10.03 Exculpatory Provisions
	 	 	64	 
	10.04 Reliance by Administrative Agent
	 	 	65	 
	10.05 Delegation of Duties
	 	 	65	 
	10.06 Resignation of Administrative Agent
	 	 	66	 
	10.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	66	 
	10.08 No Other Duties; Etc.
	 	 	66	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	67	 
	10.10 Collateral and Guaranty Matters
	 	 	67	 
	ARTICLE XI MISCELLANEOUS
	 	 	68	 
	11.01 Amendments, Etc.
	 	 	68	 
	11.02 Notices and Other Communications; Facsimile Copies
	 	 	69	 
	11.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	70	 
	11.04 Expenses; Indemnity; and Damage Waiver
	 	 	71	 
	11.05 Payments Set Aside
	 	 	73	 
	11.06 Successors and Assigns
	 	 	73	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	76	 
	11.08 Set-off
	 	 	76	 
	11.09 Interest Rate Limitation
	 	 	77	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	77	 
	11.11 Survival of Representations and Warranties
	 	 	77	 
	11.12 Severability
	 	 	77	 
	11.13 Replacement of Lenders
	 	 	78	 
	11.14 Governing Law; Jurisdiction; Etc.
	 	 	78	 
	11.15 Waiver of Right to Trial by Jury
	 	 	79	 
	11.16 Electronic Execution of Assignments and Certain Other Documents
	 	 	79	 
	11.17 USA PATRIOT Act
	 	 	80	 






 


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	SCHEDULES
	 	 
	 
	 	 
	2.01
	 	Commitments and Applicable Percentages
	6.10
	 	Insurance
	6.13
	 	Subsidiaries
	6.17
	 	IP Rights
	6.20(a)
	 	Locations of Real Property
	6.20(b)
	 	Taxpayer and Organizational Identification Numbers
	6.20(c)
	 	Changes in Legal Name, State of Formation and Structure
	8.01
	 	Liens Existing on the Closing Date
	8.02
	 	Investments Existing on the Closing Date
	8.03
	 	Indebtedness Existing on the Closing Date
	11.02
	 	Certain Addresses for Notices
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	A
	 	Form of Loan Notice
	B
	 	Form of Revolving Note
	C
	 	Form of Term Note
	D
	 	Form of Compliance Certificate
	E
	 	Form of Joinder Agreement
	F
	 	Form of Assignment and Assumption







 


iv









 







CREDIT AGREEMENT




This CREDIT AGREEMENT is entered into as of February 12, 2010 among Ebix, Inc. a Delaware
corporation (the “Borrower”), the Guarantors (defined herein), the Lenders (defined herein)
and BANK OF AMERICA, N.A., as Administrative Agent.



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



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



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




1.01 Defined Terms.




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



“Acquisition”, by any Person, means the acquisition by such Person, in a single
transaction or in a series of related transactions, of all or any substantial portion of the
property of another Person or at least a majority of the Voting Stock of another Person, in each
case whether or not involving a merger or consolidation with such other Person and whether for
cash, property, services, assumption of Indebtedness, securities or otherwise.



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



“Administrative Agent’s Office” means 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
provided by the Administrative Agent.



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



“Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.
The aggregate principal amount of the Aggregate Revolving Commitments in effect on the Closing Date
is TWENTY-FIVE MILLION DOLLARS ($25,000,000).




“Agreement” means this Credit Agreement.



“Applicable Percentage” means with respect to any Lender at any time, (a) with respect
to such Lender’s Revolving Commitment at any time, the percentage of the Aggregate Revolving
Commitments represented by such Lender’s Revolving Commitment at such time; provided that
if the commitment of each Lender to make Revolving Loans has been terminated pursuant to
Section 9.02 or if the Aggregate Revolving Commitments have expired, then the Applicable
Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in effect, giving
effect to any subsequent assignments and (b) with respect to such Lender’s portion of the
outstanding Term Loan at any time, the percentage of the outstanding principal amount of the Term
Loan held by such Lender at such time. The initial Applicable Percentage of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.


 


 









 





“Applicable Rate” means with respect to Revolving Loans, the Term Loan and the
Commitment Fee, the following percentages per annum, based upon the Consolidated Leverage Ratio as
set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant
to Section 7.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Consolidated	 	Commitment	 	 	Eurodollar	 	 	Base Rate	 
	Pricing Tier	 	Leverage Ratio	 	Fee	 	 	Rate Loans	 	 	Loans	 
	1
	 	<1.0:1.0	 	 	0.25	%	 	 	1.50	%	 	 	0.50	%
	2
	 	≥ 1.0:1.0 but < 1.5:1.0	 	 	0.375	%	 	 	1.75	%	 	 	0.75	%
	3
	 	≥ 1.5:1.0 but < 2.0:1.0	 	 	0.50	%	 	 	2.00	%	 	 	1.00	%
	4
	 	≥ 2.0:1.0	 	 	0.625	%	 	 	2.50	%	 	 	1.50	%






Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is required to be delivered pursuant to Section 7.02(b);
provided, however, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then, upon the request of the Required Lenders, Pricing Tier 4 shall
apply as of the first Business Day after the date on which such Compliance Certificate was required
to have been delivered and shall continue to apply until the first Business Day immediately
following the date a Compliance Certificate is delivered in accordance with Section
7.02(b), whereupon the Applicable Rate shall be adjusted based upon the calculation of the
Consolidated Leverage Ratio contained in such Compliance Certificate. The Applicable Rate in
effect from the Closing Date through the first Business Day immediately following the date a
Compliance Certificate is required to be delivered pursuant to Section 7.02(b) for the
fiscal quarter ending March 31, 2010 shall be determined based upon Pricing Tier 2.
Notwithstanding anything to the contrary contained in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section 2.08(b).



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



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



“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit F or any other form approved by the Administrative Agent.



“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the
capitalized amount of the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease
and (c) in respect of any Securitization Transaction of any Person, the outstanding principal
amount of such financing, after taking into account reserve accounts and making appropriate
adjustments, determined by the Administrative Agent in its reasonable judgment.


 


2









 





“Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2008, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto, audited by
independent public accountants of recognized national standing and prepared in conformity with
GAAP.



“Availability Period” means, with respect to the Revolving Commitments, the period
from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of
termination of the Aggregate Revolving Commitments pursuant to Section 2.04, and (c) the
date of termination of the commitment of each Lender to make Loans pursuant to Section
9.02.




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



“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate” and (c) the Eurodollar Base Rate
plus 1.00%. The “prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in the “prime rate” announced by Bank of America shall take
effect at the opening of business on the day specified in the public announcement of such change.




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




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




“Borrower Materials” has the meaning specified in Section 7.02.



“Borrowing” means a borrowing consisting of simultaneous Loans of the same 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 state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.



“Businesses” means, at any time, a collective reference to the businesses operated by
the Borrower and its Subsidiaries at such time.



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


 


3









 





“Cash Equivalents” means, as at any date, (a) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality thereof (provided that
the full faith and credit of
the United States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and certificates of
deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital
and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the
equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of not
more than 270 days from the date of acquisition, (c) commercial paper and variable or fixed rate
notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes
issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank
or trust company (including any of the Lenders) or recognized securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the
United States in which such Person shall have a perfected first priority security interest (subject
to no other Liens) and having, on the date of purchase thereof, a fair market value of at least
100% of the amount of the repurchase obligations, (e) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered under the Investment Company
Act of 1940 which are administered by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the character described in
the foregoing subdivisions (a) through (d) and (f) in the case of any Foreign Subsidiary, high
quality, short-term liquid Investments made by such Foreign Subsidiary in the ordinary course of
managing its surplus cash position in Investments of similar quality as those described in clauses
(a) though (e) above.



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




“Change of Control” means the occurrence of any of the following events:




(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire (such right, an “option right”), whether such right
is exercisable immediately or only after the passage of time), directly or indirectly, of
35% of the Equity Interests of the Borrower entitled to vote for members of the board of
directors or equivalent governing body of the Borrower on a fully diluted basis (and taking
into account all such securities that such person or group has the right to acquire pursuant
to any option right); or




(b) during any period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Borrower cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause
(ii) and clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a result of an
actual or threatened solicitation of proxies or consents for the election or removal of one
or more directors by any person or group other than a solicitation for the election of one
or more directors by or on behalf of the board of directors).


 


4









 






“Closing Date” means the date hereof.



“Collateral” means a collective reference to all real and personal property with
respect to which Liens in favor of the Administrative Agent, for the benefit of the Lenders, are
purported to be granted pursuant to and in accordance with the terms of the Collateral Documents.



“Collateral Documents” means a collective reference to the Security Agreement, the
Pledge Agreement, the Mortgages and other security documents as may be executed and delivered by
the Loan Parties pursuant to the terms of Section 7.14.



“Commitment” means, as to each Lender, the Revolving Commitment of such Lender and/or
the Term Loan Commitment of such Lender.




“Commitment Fee” has the meaning specified in Section 2.07(a).



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



“Consolidated Capital Expenditures” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, all capital expenditures, as determined in accordance with
GAAP; provided, however, that Consolidated Capital Expenditures shall not include
(a) expenditures made with proceeds of any Involuntary Disposition to the extent such expenditures
are used to purchase property that is the same as or similar to the property subject to such
Involuntary Disposition or (b) Permitted Acquisitions.



“Consolidated Cash Taxes” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the aggregate of all taxes, as determined in accordance with GAAP, to the
extent the same are paid in cash during such period.



“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus the
following to the extent deducted in calculating such Consolidated Net Income: (a) Consolidated
Interest Charges for such period, (b) the provision for federal, state, local and foreign income
taxes payable by the Borrower and its Subsidiaries for such period, (c) depreciation and
amortization expense for such period, (d) non-cash stock-based compensation expense for such
period, (e) all non-cash, non-recurring expenses and charges for such period that do not represent
a cash item in such period or any future period and (f) with respect to the periods indentified
below only, cost savings resulting from Acquisitions consummated on or before October 1, 2009 in an
aggregate amount not to exceed (i) $9,738,732 for the four fiscal quarter period ending December
31, 2009, (ii) $7,304,049 for the four fiscal quarter period ending March 31, 2010, (iii)
$4,869,366 for the four fiscal quarter period ending June 30, 2010 and (iv) $2,434,683 for the four
fiscal quarter period ending September 30, 2010, all as determined in accordance with GAAP.


 


5









 





“Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the
ratio of (a) the sum of (i) Consolidated EBITDA for the period of the four fiscal quarters most
recently ended minus (ii) Consolidated Capital Expenditures for such period minus
(iii) Consolidated Cash Taxes during such period to (b) Consolidated Fixed Charges for the period
of the four fiscal quarters most recently ended.



“Consolidated Fixed Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) the Consolidated Interest
Charges for such period plus (ii) the amount of repurchases of Equity Interests by the
Borrower or its Subsidiaries during such period plus (iii) Consolidated Scheduled Funded
Debt Payments for such period, all as determined in accordance with GAAP. Notwithstanding the
foregoing, for purposes of calculating Consolidated Scheduled Funded Debt Payments (i) for period
ending March 31, 2010, the amount of scheduled payments of principal on the Term Loan for such
period shall be deemed to be the scheduled payments of principal on the Term Loan during the fiscal
quarter ending March 31, 2010 multiplied by four (4), (ii) for period ending June 30, 2010, the
amount of scheduled payments of principal on the Term Loan for such period shall be deemed to be
the scheduled payments of principal on the Term Loan during the two fiscal quarters ending June 30,
2010 multiplied by two (2) and (iii) for period ending September 30, 2010, the amount of scheduled
payments of principal on the Term Loan for such period shall be deemed to be the scheduled payments
of principal on the Term Loan during the three fiscal quarters ending September 30, 2010 multiplied
by four-thirds (4/3).



“Consolidated Funded Indebtedness” means Funded Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with GAAP.



“Consolidated Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) all interest, premium
payments, debt discount, fees, charges and related expenses in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase price of assets, in
each case to the extent treated as interest in accordance with GAAP, plus (ii) the portion
of rent expense with respect to such period under Capital Leases that is treated as interest in
accordance with GAAP plus (iii) the implied interest component of Synthetic Leases with
respect to such period.



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



“Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding
extraordinary gains) for that period, as determined in accordance with GAAP.



“Consolidated Scheduled Funded Debt Payments” means for any period for the Borrower
and its Subsidiaries on a consolidated basis, the sum of all scheduled payments of principal on
Consolidated Funded Indebtedness, as determined in accordance with GAAP. For purposes of this
definition, “scheduled payments of principal” (a) shall be determined without giving effect to any
reduction of such scheduled payments resulting from the application of any voluntary or mandatory
prepayments made during the applicable period, (b) shall be deemed to include the Attributable
Indebtedness in respect of Capital Leases, Securitization Transactions and Synthetic Leases and (c)
shall not include any voluntary prepayments or mandatory prepayments required pursuant to
Section 2.03.



“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.


 


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“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. Without
limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another
Person if such other Person possesses, directly or indirectly, power to vote 5% or more of the
securities having ordinary voting power for the election of directors, managing general partners or
the equivalent.




“Credit Extension” means a Borrowing.



“Debt Issuance” means the issuance by any Loan Party or any Subsidiary of any
Indebtedness other than Indebtedness permitted under Section 8.03.



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



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



“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the
Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise
applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by
applicable Laws.



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



“Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any property by any Loan Party or any
Subsidiary (including the Equity Interests of any Subsidiary), 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, but excluding (a) the sale, lease, license, transfer or
other disposition of inventory in the ordinary course of business; (b) the sale, lease, license,
transfer or other disposition in the ordinary course of business of surplus, obsolete or worn out
property no longer used or useful in the conduct of business of any Loan Party and its
Subsidiaries; (c) any sale, lease, license, transfer or other disposition of property to any Loan
Party or any 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 8.02, and (d) any Involuntary
Disposition.




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



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


 


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“Earn Out Obligations” means, with respect to an Acquisition, all obligations of the
Borrower or any Subsidiary to make earn out or other contingency payments (including purchase price
adjustments, non-competition and consulting agreements, or other indemnity obligations) pursuant to
the documentation relating to such Acquisition. The amount of any Earn Out Obligations at the time
of
determination shall be the aggregate amount, if any, of such Earn Out Obligations that are
required at such time under GAAP to be recognized as liabilities on the consolidated balance sheet
of the Borrower.



“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 11.06(b)(iv), (v) and (vi) (subject to such consents, if any,
as may be required under Section 11.06(b)(ii)).



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



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



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



“Equity Issuance” means any issuance by any Loan Party or any Subsidiary to any Person
of its Equity Interests, other than (a) any issuance of its Equity Interests pursuant to the
exercise of options or warrants, (b) any issuance of its Equity Interests pursuant to the
conversion of any debt securities to equity or the conversion of any class equity securities to any
other class of equity securities, (c) any issuance of options or warrants relating to its Equity
Interests and (d) any issuance by the Borrower of its Equity Interests as consideration for a
Permitted Acquisition. The term “Equity Issuance” shall not be deemed to include any Disposition.




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



“ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Internal
Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions
relating to Section 412 of the Internal Revenue Code).


 


8









 





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




“Eurodollar Base Rate” means:




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




(b) for any interest rate calculation with respect to a Base Rate Loan, the rate per
annum equal to (i) BBA LIBOR, at approximately 11:00 a.m. London time two Business Days
prior to the date of determination (provided that if such day is not a London Business Day,
the next preceding London Business Day) for Dollar deposits being delivered in the London
interbank market for a term of one month commencing that day or (ii) if such published rate
is not available at such time for any reason, the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of
determination in same day funds in the approximate amount of the Base Rate Loan being made,
continued or converted by Bank of America and with a term equal to one month would be
offered by Bank of America’s London Branch to major banks in the London intrabank eurodollar
market at their request at approximately 11:00 a.m., London time on the date of
determination.



“Eurodollar Rate” means, for any Interest Period with respect to any Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained
by dividing (a) the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest Period by
(b) one minus the Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such
Interest Period.



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


 


9









 





“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB
for determining the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”).
The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically
as of the effective date of any change in the Eurodollar Reserve Percentage.




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



“Excluded Property” means, with respect to any Loan Party, including any Person that
becomes a Loan Party after the Closing Date as contemplated by Section 7.12, (a) any owned
or leased real or personal property which is located outside of the United States unless requested
by the Administrative Agent or the Required Lenders, (b) any personal property (including, without
limitation, motor vehicles) in respect of which perfection of a Lien is not either (i) governed by
the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed in
either the United States Copyright Office or the United States Patent and Trademark Office, unless
requested by the Administrative Agent or the Required Lenders, (c) the Equity Interests of any
direct Foreign Subsidiary of a Loan Party to the extent not required to be pledged to secure the
Obligations pursuant to Section 7.14(a), (d) any property which, subject to the terms of
Section 8.09, is subject to a Lien of the type described in Section 8.01(i)
pursuant to documents which prohibit such Loan Party from granting any other Liens in such property
and (e) any leasehold interest of any Loan Party in office space.



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lending Office is located,
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located, (c) any backup withholding tax that is required by
the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A)
of Section 3.01(e)(ii), and (d) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 11.13), any United States withholding
tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the
Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending
Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with Section 3.01(e)(ii), except to the extent that
such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new
Lending Office (or assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a)(i) or (ii).



“Extraordinary Receipts” means, with respect to any Person, any cash received by or
paid to or for the account of such Person not in the ordinary course of business, including tax
refunds, pension plan reversions, proceeds of insurance (other than proceeds of business
interruption insurance to the extent such proceeds constitute compensation for lost earnings and
proceeds of Equity Issuances, Debt Issuances, Dispositions or Involuntary Dispositions), indemnity
payments and any purchase price adjustments; provided, however, that an
Extraordinary Receipt shall not include cash receipts from proceeds of insurance or indemnity
payments to the extent that such proceeds, awards or payments are received by any Person in respect
of any third party claim against such Person and applied to pay (or to reimburse such Person for
its prior payment of) such claim and the costs and expenses of such Person with respect thereto.



“Facilities” means, at any time, a collective reference to the facilities and real
properties owned, leased or operated by any Loan Party or any Subsidiary.


 


10









 





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



“Fee Letter” means the letter agreement, dated December 4, 2009 between the Borrower
and Bank of America.



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




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




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



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



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




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




(b) all purchase money Indebtedness;




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




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




(e) all obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and, in each case, not
past due for more than 60 days after the date on which such trade account payable was
created), including, without limitation, any Earn Out Obligations recognized as a liability
on the balance sheet of the Borrower and its Subsidiaries in accordance with GAAP;




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


 


11









 






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




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




(i) all Guarantees with respect to Funded Indebtedness of the types specified in
clauses (a) through (i) above of another Person; and




(j) all Funded Indebtedness of the types referred to in clauses (a) through (i) above
of any partnership or joint venture (other than a joint venture that is itself a corporation
or limited liability company) in which such Person is a general partner or joint venturer,
except to the extent that Funded Indebtedness is expressly made non-recourse to such Person.



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



“GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board, consistently applied and as in effect from time to time.



“Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



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


 


12









 





“Guarantors” means each Domestic Subsidiary of the Borrower identified as a
“Guarantor” on the signature pages hereto and each other Person that joins as a Guarantor pursuant
to Section 7.12, together with their successors and permitted assigns.



“Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative
Agent and the Lenders pursuant to Article IV.



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



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




(a) all Funded Indebtedness;




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




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




(d) all Indebtedness of the types referred to in clauses (a) through (c) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which the Borrower or a Subsidiary is a general partner or
joint venturer, unless such Indebtedness is expressly made non-recourse to the Borrower or
such Subsidiary.




“Indemnified Taxes” means Taxes other than Excluded Taxes.




“Indemnitees” has the meaning specified in Section 11.04(b).




“Information” has the meaning specified in Section 11.07.



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



“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its
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;


 


13









 






(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 with respect to any Loan shall extend beyond the Maturity Date.



“Interim Financial Statements” has the meaning set forth in Section
5.01(c)(ii).




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



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



“Involuntary Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any property of any Loan Party or any of its
Subsidiaries.




“IP Rights” has the meaning specified in Section 6.17.




“IRS” means the United States Internal Revenue Service.



“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit
E executed and delivered by a Domestic Subsidiary in accordance with the provisions of
Section 7.12.



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



“Lenders” means each of the Persons identified as a “Lender” on the signature pages
hereto and their successors and assigns.



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



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


 


14









 





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



“Loan Documents” means this Agreement, each Note, each Joinder Agreement, the
Collateral Documents and the Fee Letter.



“Loan Notice” means a notice of (a) a Borrowing of Loans, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, in each case pursuant
to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit
A.




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



“Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the business, assets, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a
whole; (b) an impairment of the ability of any Loan Party to perform its material obligations under
any Loan Document to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan Document to which it
is a party.




“Maturity Date” means February 12, 2012.




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



“Mortgaged Property” means any real property that is owned or leased by a Loan Party
and is subject to a Mortgage.



“Mortgages” means the mortgages, deeds of trust or deeds to secure debt that purport
to grant to the Administrative Agent, for the benefit of the holders of the Obligations, a security
interest in the fee interest and/or leasehold interests of any Loan Party in real property (other
than Excluded Property).



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



“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by
any Loan Party or any Subsidiary in respect of any Disposition, Equity Issuance, Debt Issuance or
Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including,
without limitation, legal, accounting and investment banking fees, and sales commissions), (b)
taxes paid or payable as a result thereof and (c) in the case of any Disposition, the amount
necessary to retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the
Administrative Agent) on the related property; it being understood that “Net Cash Proceeds” shall
include, without limitation, any cash or Cash Equivalents received upon the sale or other
disposition of any non-cash consideration received by any Loan Party or any Subsidiary in any
Disposition, Equity Issuance, Debt Issuance or Involuntary Disposition.



“Note” or “Notes” means the Revolving Notes and/or the Term Notes,
individually or collectively, as appropriate.



“Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any
Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent,
due or to become due, now existing or hereafter arising and including interest and fees that accrue
after the commencement by or
against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws
naming such Person as the debtor in such proceeding, regardless of whether such interest and fees
are allowed claims in such proceeding. The foregoing shall also include (a) all obligations under
any Swap Contract between any Loan Party and any Lender or Affiliate of a Lender that is permitted
to be incurred pursuant to Section 8.03(d) and (b) all obligations under any Treasury
Management Agreement between any Loan Party and any Lender or Affiliate of a Lender.


 


15









 





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



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



“Outstanding Amount” means with respect to any Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of any Loans occurring on such date.




“Participant” has the meaning specified in Section 11.06(d).




“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.



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



“Permitted Acquisitions” means Investments consisting of an Acquisition by any Loan
Party, provided that (i) no Default shall have occurred and be continuing or would result
from such Acquisition, (ii) the property acquired (or the property of the Person acquired) in such
Acquisition is used or useful in the same or a related line of business as the Borrower and its
Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions
thereof), (iii) the Administrative Agent shall have received all items in respect of the Equity
Interests or property acquired in such Acquisition required to be delivered by the terms of
Section 7.12 and/or Section 7.14, (iv) in the case of an Acquisition of the Equity
Interests of another Person, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition, (v) the Borrower shall have delivered to
the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect
to such Acquisition on a Pro Forma Basis, the Loan Parties would be in compliance with the
financial covenants set forth in Section 8.11 as of the most recent fiscal quarter for
which the Borrower was required to deliver financial statements pursuant to Section 7.01(a)
or (b), (vi) the representations and warranties made by the Loan Parties in each Loan
Document shall be true and correct in all material respects at and as if made as of the
date of such Acquisition (after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date, (vii) immediately after giving
effect to such Acquisition, the Borrower shall have cash and availability under the Aggregate
Revolving Commitments of at least $5,000,000 and (viii) the aggregate consideration (including cash
and non-cash consideration, any assumption of Indebtedness, deferred purchase price and any
Earn-Out Obligations) paid by the Loan Parties for all such Acquisitions shall not exceed
$20,000,000 during the term of this Agreement.


 


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“Permitted Investments” means, at any time, Investments by any Loan Party or any of
its Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.02.



“Permitted Liens” means, at any time, Liens in respect of property of any Loan Party
or any of its Subsidiaries permitted to exist at such time pursuant to the terms of Section
8.01.



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



“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section
412, Section 430 or Section 431 of the Internal Revenue Code or Title IV of ERISA, any ERISA
Affiliate.




“Platform” has the meaning specified in Section 7.02.



“Pledge Agreement” means the pledge agreement dated as of the Closing Date executed in
favor of the Administrative Agent, for the benefit of the holders of the Obligations, by each of
the Loan Parties, as amended or modified from time to time in accordance with the terms hereof.



“Pro Forma Basis” means, for purposes of calculating the financial covenants set forth
in Section 8.11 (including for purposes of determining the Applicable Rate), that any
Disposition, Involuntary Disposition or Acquisition shall be deemed to have occurred as of the
first day of the most recent four fiscal quarter period preceding the date of such transaction for
which the Borrower was required to deliver financial statements pursuant to Section 7.01(a)
or (b). In connection with the foregoing, (a) with respect to any Disposition or
Involuntary Disposition, income statement and cash flow statement items (whether positive or
negative) attributable to the property disposed of shall be excluded to the extent relating to any
period occurring prior to the date of such transaction and (b) with respect to any Acquisition,
income statement items attributable to the Person or property acquired shall be included to the
extent relating to any period applicable in such calculations to the extent (A) such items are not
otherwise included in such income statement items for the Borrower and its Subsidiaries in
accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and
(B) such items are supported by financial statements or other information satisfactory to the
Administrative Agent and (ii) any Indebtedness incurred or assumed by the Borrower or any
Subsidiary (including the Person or property acquired) in connection with such transaction (A)
shall be deemed to have been incurred as of the first day of the applicable period and (B) 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.



“Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the
Borrower containing reasonably detailed calculations of the financial covenants set forth in
Section 8.11 as of the most recent fiscal quarter end for which the Borrower was required
to deliver financial statements pursuant to Section 7.01(a) or (b) after giving
effect to the applicable transaction on a Pro Forma Basis.


 


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“Public Lender” has the meaning specified in Section 7.02.




“Register” has the meaning specified in Section 11.06(c).



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



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



“Request for Credit Extension” means with respect to a Borrowing, conversion or
continuation of Loans, a Loan Notice.



“Required Lenders” means, at any time, two or more Lenders holding in the aggregate
more than 50% of (a) the unfunded Commitments and the outstanding Loans or (b) if the Commitments
have been terminated, the outstanding Loans. The unfunded Commitments of, and the outstanding
Loans 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 or chief financial
officer of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.



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



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




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




“Revolving Note” has the meaning specified in Section 2.09.



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



“Sale and Leaseback Transaction” means, with respect to any Loan Party or any
Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Loan Party or such
Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property being sold or transferred.


 


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



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



“Security Agreement” means the security agreement dated as of the Closing Date
executed in favor of the Administrative Agent, for the benefit of the holders of the Obligations,
by each of the Loan Parties, as amended or modified from time to time in accordance with the terms
hereof.



“Solvent” or “Solvency” means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the ordinary course of business, (b) such
Person does not intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (c)
such Person is not engaged in a business or a transaction, and is not about to engage in a business
or a transaction, for which such Person’s property would constitute unreasonably small capital
after giving due consideration to the prevailing practice in the industry in which such Person is
engaged or is to engage, (d) the fair value of the property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent liabilities, of such Person
and (e) 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. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in 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.



“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 Voting Stock is at
the time beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Borrower.



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


 


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



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



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



“Term Loan” means the term loan made by the Lenders pursuant to Section
2.01(b) and the term loans made by the Lenders pursuant to Section 2.02(f). The amount
of the Term Loan funded on the Closing Date is Ten Million Dollars ($10,000,000).



“Term Loan Commitment” means, as to each Lender, its obligation to make its portion of
the Term Loan to the Borrower pursuant to Section 2.01(b), in the principal amount set
forth opposite such Lender’s name on Schedule 2.01. The aggregate principal amount of the
Term Loan Commitments of all of the Lenders as in effect on the Closing Date is TEN MILLION DOLLARS
($10,000,000).




“Term Note” has the meaning specified in Section 2.09.




“Threshold Amount” means $2,500,000.



“Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving
Loans.



“Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, overdraft, credit or debit card,
funds transfer, automated clearinghouse, zero balance accounts, returned check concentration,
controlled disbursement, lockbox, account reconciliation and reporting and trade finance services
and other cash management services.



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




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



“Voting Stock” means, with respect to any Person, Equity Interests issued by such
Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such Person, even though the
right so to vote has been suspended by the happening of such a contingency.



“Wholly Owned Subsidiary” means any Person 100% of whose Equity Interests are at the
time owned by the Borrower directly or indirectly through other Persons 100% of whose Equity
Interests are at the time owned, directly or indirectly, by the Borrower.


 


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1.02 Other Interpretive Provisions.



With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:




(a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein or in any
other Loan Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions consolidating, amending, replacing
or interpreting such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented from time to
time, and (vi) the words “asset” and “property” shall be construed to have
the same meaning and effect and to refer to any and all real and personal property and
tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.




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




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



1.03 Accounting Terms.



(a) Generally. Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements; provided, however, that calculations of Attributable
Indebtedness under any Synthetic Lease or the implied interest component of any Synthetic Lease
shall be made by the Borrower in accordance with accepted financial practice and consistent with
the terms of such Synthetic Lease.


 


21









 





(b) Changes in GAAP. The Borrower will provide a written summary of material changes
in GAAP and in the consistent application thereof with each annual and quarterly Compliance
Certificate delivered in accordance with Section 7.02(a). If at any time any change in
GAAP would affect the computation of any financial ratio or requirement set forth in any Loan
Document, and either the
Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and
the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval of the Required
Lenders); provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower
shall provide to the Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to such change in
GAAP.



(c) Calculations. Notwithstanding the above, the parties hereto acknowledge and agree
that all calculations of the financial covenants in Section 8.11 (including for purposes of
determining the Applicable Rate) shall be made on a Pro Forma Basis.



1.04 Rounding.



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



1.05 Times of Day.



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



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 Commitments.



(a) Revolving Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower
in Dollars from time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment;
provided, however, that after giving effect to any Borrowing of Revolving Loans,
(i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii)
the aggregate Outstanding Amount of the Revolving Loans of any Lender shall not exceed such
Lender’s Revolving Commitment. Within the limits of each Lender’s Revolving Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under this Section
2.01, prepay under Section 2.03, and reborrow under this Section 2.01.
Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, or a combination thereof, as
further provided herein.



(b) Term Loan. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make its portion of the Term Loan to the Borrower in Dollars on the Closing
Date in an amount not to exceed such Lender’s Term Loan Commitment. Amounts repaid on the Term
Loan may not be reborrowed. The Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans
or a combination thereof, as further provided herein.


 


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2.02 Borrowings, Conversions and Continuations of Loans.



(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) (A) one Business Day prior to the requested date of any
Borrowing of, conversion to or continuation of, Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans so long as Bank of America is the only Lender and (B)
three Business Days prior to the requested date of any Borrowing of, conversion to or continuation
of, Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans at such
time as Bank of America is no longer the only Lender, and (ii) on the requested date of any
Borrowing of 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 $2,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion
to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of
Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to specify a Type of a Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable
Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base
Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to,
or continuation of Eurodollar Rate Loans in any Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.



(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Applicable Percentage 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 as described in the
preceding subsection. In the case of a Borrowing, each Lender shall 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 5.02 (and, if such Borrowing
is the initial Credit Extension, Section 5.01), the Administrative Agent shall make all
funds so received available to the Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of the Borrower on the books of Bank of America with the amount
of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and acceptable to) the Administrative Agent by the Borrower.



(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of the Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders, and the Required Lenders may demand that any or all of the
then outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.


 


23









 





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



(e) After giving effect to all 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 5 Interest
Periods in effect with respect to all Loans.



(f) The Borrower may, upon prior written notice by the Borrower to the Administrative Agent,
increase the Aggregate Revolving Commitments and the Term Loan by a maximum aggregate amount of up
to TEN MILLION DOLLARS ($10,000,000) on a pro rata basis between the Aggregate Revolving
Commitments and the Term Loan on one occasion on or within 60 days of the Closing Date as follows:




(i) any such increase shall be in a minimum aggregate principal amount of $5,000,000
and in integral multiples of $1,000,000 in excess thereof;




(ii) no Default or Event of Default shall exist and be continuing at the time of any
such increase;




(iii) no existing Lender shall be under any obligation to increase its Commitment or
advance any portion of the additional Term Loan and any such decision whether to increase
its Commitment or advance any portion of the additional Term Loan shall be in such Lender’s
sole and absolute discretion;




(iii) (A) any new Lender shall be acceptable to the Borrower and the Administrative
Agent and shall join this Agreement by executing such joinder documents required by the
Administrative Agent and/or (B) any existing Lender electing to increase its Commitment and
advance any portion of the additional Term Loan shall have executed a commitment agreement
satisfactory to the Administrative Agent;




(iv) as a condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the date of such increase
(in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party
(A) certifying and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (B) in the case of the Borrower, certifying that, before
and after giving effect to such increase, (x) the representations and warranties contained
in Article VI and the other Loan Documents are true and correct in all material
respects on and as of the date of such increase, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are
true and correct in all material respects as of such earlier date, and except that for
purposes of this Section 2.02(f), the representations and warranties contained in
subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01,
and (y) no Default or Event of Default exists; and




(v) Schedule 2.01 shall be deemed revised to reflect the commitments and
commitment percentages of the Lenders after giving effect to any increase pursuant to this
Section 2.02(f).


 


24









 






The Borrower shall prepay any Loans owing by it and outstanding on the date of any such
increase (and pay any additional amounts required pursuant to Section 3.05) to the
extent necessary to keep the outstanding Loans ratable with any revised Commitments arising
from any nonratable increase in the Commitments under this Section.



2.03  Prepayments.



(a) Voluntary Prepayments.




The Borrower may, upon notice from the Borrower to the Administrative Agent, at any
time or from time to time voluntarily prepay Revolving Loans and/or the Term Loan in whole
or in part without premium or penalty; provided that (A) such notice must be
received by the Administrative Agent not later than 11:00 a.m. (1) three Business Days prior
to any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base
Rate Loans; (B) any such prepayment of Eurodollar Rate Loans shall be in a principal amount
of $2,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if less, the entire
principal amount thereof then outstanding); and (C) any prepayment of Base Rate Loans shall
be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof
(or, if less, the entire principal amount thereof then outstanding). Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and
whether the Loans to be prepaid are the Revolving Loans and/or the Term Loan. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice,
and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice
is given by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to Section
3.05. Each such prepayment shall be applied to the Loans of the Lenders in accordance
with their respective Applicable Percentages. Each such prepayment of the Term Loan shall
be applied to the Term Loan to the remaining principal amortization payments of the Term
Loan in the inverse order of maturity until the Term Loan has been paid in full.




(b) Mandatory Prepayments of Loans.




(i) Revolving Commitments. Except as otherwise consented to in writing by each
Lender in its sole discretion, if for any reason the Total Revolving Outstandings at any
time exceed the Aggregate Revolving Commitments then in effect, the Borrower shall
immediately prepay Revolving Loans in an aggregate amount equal to such excess.




(ii) Dispositions and Involuntary Dispositions. Except as otherwise consented
to in writing by the Required Lenders in their sole discretion, the Borrower shall prepay
the Loans as hereafter provided in an aggregate amount equal to 100% of the Net Cash
Proceeds of all Dispositions and Involuntary Dispositions. Any prepayment pursuant to this
clause (ii) shall be applied as set forth in clause (vi) below.




(iii) Debt Issuances. Except as otherwise consented to in writing by the
Required Lenders in their sole discretion, immediately upon receipt by any Loan Party or any
Subsidiary of the Net Cash Proceeds of any Debt Issuance, the Borrower shall prepay the
Loans as hereafter provided in an aggregate amount equal to 100% of such Net Cash Proceeds
(such prepayment to be applied as set forth in clause (vi) below).


 


25









 






(iv) Equity Issuances. Except as otherwise consented to in writing by the
Required Lenders in their sole discretion, immediately upon the receipt by any Loan Party or
any Subsidiary of the Net Cash Proceeds of any Equity Issuance, the Borrower shall prepay
the Loans in an aggregate amount equal to 100% of such Net Cash Proceeds (such prepayment
shall be applied as set forth in clause (vi) below).




(v) Extraordinary Receipts. Except as otherwise consented to in writing by the
Required Lenders in their sole discretion, immediately upon the receipt by any Loan Party of
any Subsidiary of any Extraordinary Receipts, the Borrower shall prepay the Loans in an
aggregate amount equal to 100% of such Extraordinary Receipts (such prepayment shall be
applied as set forth in clause (vi) below).




(vi) Application of Mandatory Prepayments. All amounts required to be paid
pursuant to this Section 2.03(b) shall be applied as follows:




(A) with respect to all amounts prepaid pursuant to Section 2.03(b)(i),
to Revolving Loans;




(B) with respect to all amounts prepaid pursuant to Sections
2.03(b)(ii), (iii), (iv) and (v) first to the Term Loan
(to the remaining principal amortization payments thereof in the inverse order of
maturity) and then (after the Term Loan has been paid in full) to the Revolving
Loans (without a corresponding permanent reduction in the Aggregate Revolving
Commitments).




Within the parameters of the applications set forth above, prepayments shall be
applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct order
of Interest Period maturities. All prepayments under this Section 2.03(b)
shall be subject to Section 3.05, but otherwise without premium or penalty,
and shall be accompanied by interest on the principal amount prepaid through the
date of prepayment.



2.04 Termination or Reduction of Aggregate Revolving Commitments.



(a) Optional Reductions. The Borrower may, upon notice to the Administrative Agent,
terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the
Aggregate Revolving Commitments to an amount not less than the Outstanding Amount of Revolving
Loans; provided that (i) any such notice shall be received by the Administrative Agent not
later than 12:00 noon five (5) Business Days prior to the date of termination or reduction, (ii)
any such partial reduction shall be in an aggregate amount of $2,000,000 or any whole multiple of
$1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce the Aggregate
Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments.



(b) Notice. The Administrative Agent will promptly notify the Lenders of any
termination or reduction of the Aggregate Revolving Commitments under this Section 2.04.
Upon any reduction of the Aggregate Revolving Commitments, the Revolving Commitment of each Lender
shall be reduced by such Lender’s Applicable Percentage of such reduction amount. All fees in
respect of the Aggregate Revolving Commitments accrued until the effective date of any termination
of the Aggregate Revolving Commitments shall be paid on the effective date of such termination.


 


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2.05 Repayment of Loans.



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



(b) Term Loan. The Borrower shall repay the outstanding principal amount of the Term
Loan in installments on the dates and in the amounts set forth in the table below (as such
installments may hereafter be adjusted as a result of prepayments made pursuant to Section
2.03), unless accelerated sooner pursuant to Section 9.02:



	 	 	 	 	 
	 	 	Principal Amortization	 
	 	 	Payment (% of Term Loan	 
	 	 	outstanding on the Closing	 
	 	 	Date plus the amount of	 
	 	 	Term Loan funded pursuant	 
	Payment Dates	 	to Section 2.02(f)	 
	March 31, 2010
	 	 	12.5	%
	June 30, 2010
	 	 	12.5	%
	September 30, 2010
	 	 	12.5	%
	December 31, 2010
	 	 	12.5	%
	March 31, 2011
	 	 	12.5	%
	June 30, 2011
	 	 	12.5	%
	September 30, 2011
	 	 	12.5	%
	Maturity Date
	 	Outstanding Principal Balance of Term Loan	 






2.06 Interest.



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




(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.




(ii) If any amount (other than principal of any Loan) payable by the Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, then such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.




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


 


27









 






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



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



2.07 Fees.



(a) Commitment Fee. The Borrower shall pay to the Administrative Agent, for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee (the
“Commitment Fee”) at a rate per annum equal to the product of (i) the Applicable Rate
times (ii) the actual daily amount by which the Aggregate Revolving Commitments exceed the
Outstanding Amount of Revolving Loans. The Commitment Fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the conditions in
Article V is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the Maturity Date; provided, that (A) no
Commitment Fee shall accrue on the Revolving Commitment of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender and (B) any Commitment Fee accrued with respect to the
Revolving Commitment 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. The Commitment Fee shall be calculated quarterly in arrears,
and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.



(b) Fee Letter. The Borrower shall pay to BAS and the Administrative Agent for their
own respective accounts fees in the amounts and at the times specified in the Fee Letter. Such
fees shall be fully earned when paid and shall be non-refundable for any reason whatsoever.



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



(a) All computations of interest for Base Rate Loans shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).
Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.10(a), bear interest for one day. Each determination by the Administrative Agent
of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.



(b) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the
Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate
and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher
pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to
the Administrative Agent for the
account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after
the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower
under the Bankruptcy Code of the United States, automatically and without further action by the
Administrative Agent or any Lender), an amount equal to the excess of the amount of interest and
fees that should have been paid for such period over the amount of interest and fees actually paid
for such period. This paragraph shall not limit the rights of the Administrative Agent or any
Lender, as the case may be, under Section 2.06(b) or under Article IX. The
Borrower’s obligations under this paragraph shall survive the termination of the Commitments of all
of the Lenders and the repayment of all other Obligations hereunder.


 


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2.09 Evidence of Debt.



The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a
promissory note, which shall evidence such Lender’s Loans in addition to such accounts or records.
Each such promissory note shall (i) in the case of Revolving Loans, be in the form of Exhibit
B (a “Revolving Note”) and (ii) in the case of the Term Loan, be in the form of
Exhibit C (a “Term Note”). 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.



2.10 Payments Generally; Administrative Agent’s Clawback.



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




(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent
may assume that such Lender has made such share available on such date in accordance with
Section 2.02 (or, in the case of any Borrowing of Base Rate Loans, that such Lender
has made such share available in accordance with and at the time required by Section
2.02) and may,


 


29









 






in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the date such amount
is made available to the Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation and (B) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an overlapping period,
the Administrative Agent shall promptly remit to the Borrower the amount of such interest
paid by the Borrower for such period. If such Lender pays its share of the applicable
Borrowing to the Administrative Agent, then the amount so paid shall constitute such
Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have failed to make
such payment to the Administrative Agent.




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




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



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



(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation or to make any payment under
Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be responsible for the failure
of any other Lender to so make its Loan, to purchase its participation or to make its payment under
Section 11.04(c).



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


 


30









 





2.11 Sharing of Payments by Lenders.



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




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




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



Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.



(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i)
Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any
other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and
without reduction or withholding for any Taxes. If, however, applicable Laws require the Borrower
or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted
in accordance with such Laws as determined by the Borrower or the Administrative Agent, as the case
may be, upon the basis of the information and documentation to be delivered pursuant to subsection
(e) below.



(ii) If the Borrower or the Administrative Agent shall be required by the Code to withhold or
deduct any Taxes, including both United States Federal backup withholding and withholding taxes,
from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are
determined by the Administrative Agent to be required based upon the information and documentation
it has received pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the
full amount withheld or deducted to the relevant Governmental Authority in accordance with the
Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified
Taxes or Other Taxes, the sum payable by the Borrower shall be increased as necessary so that after
any required withholding or the making of all required deductions (including deductions applicable
to additional sums
payable under this Section) the Administrative Agent or Lender, as the case may be, receives
an amount equal to the sum it would have received had no such withholding or deduction been made.


 


31









 





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



(c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, the Loan Parties shall, and do hereby, jointly and severally, indemnify the
Administrative Agent and each Lender, and shall make payment in respect thereof within 10 days
after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) withheld or deducted by the Borrower or the Administrative Agent paid by the
Administrative Agent or such Lender, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The
Loan Parties shall also, and do hereby, jointly and severally, indemnify the Administrative Agent,
and shall make payment in respect thereof within 10 days after demand therefor, for any amount
which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as required by
clause (ii) of this subsection. A certificate as to the amount of any such payment or liability
delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.



(ii) Without limiting the provisions of subsection (a) or (b) above, each Lender shall, and
does hereby, indemnify the Borrower and the Administrative Agent, and shall make payment in respect
thereof within 10 days after demand therefor, against any and all Taxes and any and all related
losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and
disbursements of any counsel for the Borrower or the Administrative Agent) incurred by or asserted
against the Borrower or the Administrative Agent by any Governmental Authority as a result of the
failure by such Lender to deliver, or as a result of the inaccuracy, inadequacy or deficiency of,
any documentation required to be delivered by such Lender to the Borrower or the Administrative
Agent pursuant to subsection (e). Each Lender hereby authorizes the Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender under this Agreement or any
other Loan Document against any amount due to the Administrative Agent under this clause (ii). The
agreements in this clause (ii) shall survive the resignation and/or replacement of the
Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination
of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.



(d) Evidence of Payments. Upon request by any Loan Party or the Administrative Agent,
as the case may be, after any payment of Taxes by any Loan Party or the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, each Loan Party shall deliver to
the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may
be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of any return required by Laws to report such payment or other evidence of
such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may
be.



(e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrower or the
Administrative Agent, as the
case may be, to determine (A) whether or not payments made hereunder or under any other Loan
Documents are subject to Taxes, (B) if applicable, the required rate of withholding or deduction,
and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable
Taxes in respect of all payments to be made to such Lender by the Borrower pursuant to this
Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the
applicable jurisdiction.


 


32









 





(ii) Without limiting the generality of the foregoing, if the Borrower is resident for tax
purposes in the United States,




(A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent executed
originals of Internal Revenue Service Form W-9 or such other documentation or information
prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent, as the case may be, to
determine whether or not such Lender is subject to backup withholding or information
reporting requirements; and




(B) each Foreign Lender that is entitled under the Code or any applicable treaty to an
exemption from or reduction of withholding tax with respect to payments hereunder or under
any other Loan Document shall deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the request of the Borrower or the Administrative Agent, but only if such Foreign
Lender is legally entitled to do so), whichever of the following is applicable:




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




(II) executed originals of Internal Revenue Service Form W-8ECI,




(III) executed originals of Internal Revenue Service Form W-8IMY and all required
supporting documentation,




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




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



(iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed exemption or reduction,
and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the re-designation of its
Lending Office) to avoid
any requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative
Agent make any withholding or deduction for taxes from amounts payable to such Lender.


 


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(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from
funds paid for the account of such Lender. If the Administrative Agent or any Lender determines, in
its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has
been indemnified by any Loan Party or with respect to which any Loan Party has paid additional
amounts pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund
(but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party
under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses incurred by the Administrative Agent or such Lender, as the case may be, and
without interest (other than any interest paid by the relevant Governmental Authority with respect
to such refund), provided that each Loan Party, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to such Loan Party (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent or any Lender to make available its tax returns (or
any other information relating to its taxes that it deems confidential) to the Borrower or any
other Person.



3.02 Illegality.



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



3.03 Inability to Determine Rates.



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


 


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3.04  Increased Costs.




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




(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate);




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




(iii) impose on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by such Lender;




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



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



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



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


 


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3.05 Compensation for Losses.




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




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




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




(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
11.13;



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



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



3.06 Mitigation Obligations; Replacement of Lenders.




(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.



(b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 11.13.


 


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3.07 Survival.



All of the Borrower’s obligations under this Article III shall survive termination of
the Aggregate Revolving Commitments, repayment of all other Obligations hereunder and resignation
of the Administrative Agent.



ARTICLE IV




GUARANTY




4.01 The Guaranty.



Each of the Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate
of a Lender that enters into a Swap Contract or a Treasury Management Agreement with a Loan Party,
and the Administrative Agent as hereinafter provided, as primary obligor and not as surety, the
prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof. The Guarantors hereby further agree that if any of the
Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment,
by acceleration, as a mandatory cash collateralization or otherwise), the Guarantors will, jointly
and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case
of any extension of time of payment or renewal of any of the Obligations, the same will be promptly
paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as
a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or
renewal.



Notwithstanding any provision to the contrary contained herein or in any other of the Loan
Documents, Swap Contracts or Treasury Management Agreements, the obligations of each Guarantor
under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to
the largest amount that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable state law.



4.02 Obligations Unconditional.



The obligations of the Guarantors under Section 4.01 are joint and several, absolute
and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Loan Documents, Swap Contracts or Treasury Management Agreements, or any other
agreement or instrument referred to therein, or any substitution, release, impairment or exchange
of any other guarantee of or security for any of the Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any law or regulation or other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.02 that the obligations of the Guarantors
hereunder shall be absolute and unconditional under any and all circumstances. Each Guarantor
agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or
contribution against the Borrower or any other Guarantor for amounts paid under this Article
IV until such time as the Obligations (other than contingent indemnification obligations that
survive the termination of this Agreement) have been paid in full and the Commitments have expired
or terminated. Without limiting the generality of the foregoing, it is agreed that, to the fullest
extent permitted by law, the occurrence of any one or more of the following shall not alter or
impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as
described above:




(a) at any time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived;


 


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(b) any of the acts mentioned in any of the provisions of any of the Loan Documents,
any Swap Contract or Treasury Management Agreement between any Loan Party and any Lender, or
any Affiliate of a Lender, or any other agreement or instrument referred to in the Loan
Documents, such Swap Contracts or such Treasury Management Agreements shall be done or
omitted;




(c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Loan Documents, any Swap Contract or Treasury Management Agreement between any
Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Loan Documents, such Swap Contracts or such Treasury
Management Agreements shall be waived or any other guarantee of any of the Obligations or
any security therefor shall be released, impaired or exchanged in whole or in part or
otherwise dealt with;




(d) any Lien granted to, or in favor of, the Administrative Agent or any Lender or
Lenders as security for any of the Obligations shall fail to attach or be perfected; or




(e) any of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any creditor of any
Guarantor).



With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person
under any of the Loan Documents, any Swap Contract or any Treasury Management Agreement between any
Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents, such Swap Contracts or such Treasury Management Agreements, or
against any other Person under any other guarantee of, or security for, any of the Obligations.



4.03 Reinstatement.



The obligations of the Guarantors under this Article IV shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf of any Person in
respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the
Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise,
and each Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand
for all reasonable costs and expenses (including, without limitation, the fees, charges and
disbursements of counsel) incurred by the Administrative Agent or such Lender in connection with
such rescission or restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent transfer or similar
payment under any bankruptcy, insolvency or similar law.



4.04 Certain Additional Waivers.



Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the
Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02
and through the exercise of rights of contribution pursuant to Section 4.06.




 


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4.05 Remedies.



The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors,
on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations
may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be
deemed to have become automatically due and payable in the circumstances provided in said
Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the event of such
declaration (or the Obligations being deemed to have become automatically due and payable), the
Obligations (whether or not due and payable by any other Person) shall forthwith become due and
payable by the Guarantors for purposes of Section 4.01. The Guarantors acknowledge and
agree that their obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in accordance with the terms
thereof.



4.06 Rights of Contribution.



The Guarantors agree among themselves that, in connection with payments made hereunder, each
Guarantor shall have contribution rights against the other Guarantors as permitted under applicable
law. Such contribution rights shall be subordinate and subject in right of payment to the
obligations of such Guarantors under the Loan Documents and no Guarantor shall exercise such rights
of contribution until all Obligations (other than contingent indemnification obligations that
survive the termination of this Agreement) have been paid in full and the Commitments have
terminated.



4.07 Guarantee of Payment; Continuing Guarantee.



The guarantee in this Article IV is a guaranty of payment and not of collection, is a
continuing guarantee, and shall apply to all Obligations whenever arising.



ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




5.01 Conditions of Initial Credit Extension.



This Agreement shall become effective upon and the obligation of each Lender to make its
initial Credit Extension hereunder is subject to satisfaction of the following conditions
precedent:




(a) Loan Documents. Receipt by the Administrative Agent of executed
counterparts of this Agreement and the other Loan Documents, each properly executed by a
Responsible Officer of the signing Loan Party and, in the case of this Agreement, by each
Lender.




(b) Opinions of Counsel. Receipt by the Administrative Agent of favorable
opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and
each Lender, dated as of the Closing Date, and in form and substance satisfactory to the
Administrative Agent.




(c) No Material Adverse Change. There shall not have occurred a material
adverse change since December 31, 2008 in the business, assets, income, properties,
liabilities (actual or contingent), operations, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries, taken as a whole.


 


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(d) Litigation. There shall not exist any action, suit, investigation or
proceeding pending or threatened in any court or before an arbitrator or Governmental
Authority that could reasonably be expected to have a Material Adverse Effect.




(e) Organization Documents, Resolutions, Etc. Receipt by the Administrative
Agent of the following, each of which shall be originals or facsimiles (followed promptly by
originals), in form and substance satisfactory to the Administrative Agent and its legal
counsel:




(i) copies of the Organization Documents of each Loan Party certified to be
true and complete as of a recent date by the appropriate Governmental Authority of
the state or other jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant secretary of such Loan Party
to be true and correct as of the Closing Date;




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




(iii) such documents and certifications as the Administrative Agent may require
to evidence that each Loan Party is duly organized or formed, and is validly
existing, in good standing and qualified to engage in business in its state of
organization or formation.




(f) Perfection and Priority of Liens. Receipt by the Administrative Agent of
the following:




(i) searches of Uniform Commercial Code filings in the jurisdiction of
formation of each Loan Party or where a filing would need to be made in order to
perfect the Administrative Agent’s security interest in the Collateral, copies of
the financing statements on file in such jurisdictions and evidence that no Liens
exist other than Permitted Liens;




(ii) UCC financing statements for each appropriate jurisdiction as is
necessary, in the Administrative Agent’s sole discretion, to perfect the
Administrative Agent’s security interest in the Collateral;




(iii) all certificates evidencing any certificated Equity Interests pledged to
the Administrative Agent pursuant to the Pledge Agreement, together with duly
executed in blank and undated stock powers attached thereto;




(iv) searches of ownership of, and Liens on, intellectual property of each Loan
Party in the appropriate governmental offices; and




(v) duly executed notices of grant of security interest in the form required by
the Security Agreement as are necessary, in the Administrative Agent’s sole
discretion, to perfect the Administrative Agent’s security interest in the
intellectual property of the Loan Parties.


 


40









 






(g) Evidence of Insurance. Receipt by the Administrative Agent of copies of
insurance policies or certificates of insurance of the Loan Parties evidencing liability and
casualty insurance meeting the requirements set forth in the Loan Documents, including, but
not limited to, naming the Administrative Agent as additional insured (in the case of
liability insurance) or Lender’s loss payee (in the case of hazard insurance) on behalf of
the Lenders.




(h) Closing Certificate. Receipt by the Administrative Agent of a certificate
signed by a Responsible Officer of the Borrower certifying that (i) the conditions specified
in Sections 5.01(c) and (d) and Sections 5.02(a) and (b)
have been satisfied and (ii) the Borrower and its Subsidiaries (after giving effect to the
transactions contemplated hereby and the incurrence of Indebtedness related thereto) are
Solvent on a consolidated basis.




(i) Deposit Accounts. The Borrower and its Subsidiaries shall have established
a primary depository relationship with Bank of America.




(j) Note Purchase Agreements. Receipt by the Administrative Agent of certified
copies of (i) the Secured Convertible Note Purchase Agreement dated July 11, 2008 among the
Borrower and Whitebox VSC Ltd., (ii) the 2.5% Secured Convertible Promissory Note due July
11, 2010, (iii) the Convertible Note Purchase Agreement dated August 24, 2009 among the
Borrower and Rennes Foundation, (iv) the 0% Convertible Promissory Note due August 25, 2011,
(v) the Convertible Note Purchase Agreement dated as of August 26, 2009 among the Borrower,
Whitebox VSC Ltd. and IAM Mini-Fund 14 Limited and (vi) the 0% Convertible Promissory Note
due August 26, 2011, in each case, including any amendments or modifications thereto.




(k) Fees. Receipt by the Administrative Agent, BAS and the Lenders of any fees
required to be paid on or before the Closing Date.




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




(m) Other. Receipt by the Administrative Agent and the Lenders of such other
documents, instruments, agreements and information as requested by the Administrative Agent
or any Lender, including, but not limited to, information regarding litigation, tax,
accounting, labor, insurance, pension liabilities (actual or contingent), real estate
leases, material contracts, debt agreements, property ownership, environmental matters,
contingent liabilities and management of the Borrower and its Subsidiaries; such information
may include, if requested by the Administrative Agent, asset appraisal reports and written
audits of accounts receivable, inventory, payables, controls and systems.



Without limiting the generality of the provisions of the last paragraph of Section
11.04, for purposes of determining compliance with the conditions specified in this Section
5.01, 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.


 


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5.02 Conditions to all Credit Extensions.



The obligation of each Lender to honor any Request for Credit Extension is subject to the
following conditions precedent:




(a) The representations and warranties of the Borrower and each other Loan Party
contained in Article VI or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or therewith, shall be true
and correct on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they
shall be true and correct as of such earlier date, and except that for purposes of this
Section 5.02, the representations and warranties contained in subsections (a) and
(b) of Section 6.05 shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 7.01.




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




(c) The Administrative Agent shall have received a Request for Credit Extension in
accordance with the requirements hereof.



Each Request for Credit Extension submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 5.02(a) and
(b) have been satisfied on and as of the date of the applicable Credit Extension.



ARTICLE VI




REPRESENTATIONS AND WARRANTIES





The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:



6.01 Existence, Qualification and Power.



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



6.02 Authorization; No Contravention.



The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party have been duly authorized by all necessary corporate or other organizational
action, and do not (a) contravene the terms of any of such Person’s Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of any Lien under, or
require any payment to be made under (i) any Contractual Obligation to which such Person is a party
or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any
order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law (including, without limitation, Regulation U or Regulation X issued by the
FRB).


 


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6.03 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
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document other than (a) those that have already been obtained and are in full
force and effect and (b) filings to perfect the Liens created by the Collateral Documents.



6.04 Binding Effect.



Each Loan Document has been duly executed and delivered by each Loan Party that is party
thereto. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party
that is party thereto, enforceable against each such Loan Party in accordance with its terms.



6.05 Financial Statements; No Material Adverse Effect.



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



(b) The Interim Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the Borrower and its
Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and
Indebtedness.



(c) From the date of the Audited Financial Statements to and including the Closing Date, there
has been no Disposition any Loan Party or any Subsidiary, or any Involuntary Disposition, of any
material part of the business or property of any Loan Party or any Subsidiary, and no purchase or
other acquisition by any of them of any business or property (including any Equity Interests of any
other Person) material to any Loan Party or any Subsidiary, in each case, which is not reflected in
the foregoing financial statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders on or prior to the Closing Date.



(d) The financial statements delivered pursuant to Section 7.01(a) and (b)
have been prepared in accordance with GAAP (except as may otherwise be permitted under Section
7.01(a) and (b)) and present fairly (on the basis disclosed in the footnotes to such
financial statements) the consolidated and consolidating financial condition, results of operations
and cash flows of the Borrower and its Subsidiaries as of the dates thereof and for the periods
covered thereby.



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


 


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6.06 Litigation.



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



6.07 No Default.



(a) Neither any Loan Party nor any Subsidiary is in default under or with respect to any
Contractual Obligation that could reasonably be expected to have a Material Adverse Effect.




(b) No Default has occurred and is continuing.



6.08 Ownership of Property; Liens.



Each of Loan Party and its Subsidiaries has good record and marketable title in fee simple to,
or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The property of each Loan Party and its
Subsidiaries is subject to no Liens, other than Permitted Liens.



6.09 Environmental Compliance.



Except as could not reasonably be expected to have a Material Adverse Effect:




(a) Each of the Facilities and all operations at the Facilities are in compliance with
all applicable Environmental Laws, and there is no violation of any Environmental Law with
respect to the Facilities or the Businesses, and there are no conditions relating to the
Facilities or the Businesses that could give rise to liability under any applicable
Environmental Laws.




(b) None of the Facilities contains, or has previously contained, any Hazardous
Materials at, on or under the Facilities in amounts or concentrations that constitute or
constituted a violation of, or could give rise to liability under, Environmental Laws.




(c) Neither any Loan Party nor any Subsidiary has received any written or verbal notice
of, or inquiry from any Governmental Authority regarding, any violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Facilities or the Businesses,
nor does any Responsible Officer of any Loan Party have knowledge or reason to believe that
any such notice will be received or is being threatened.




(d) Hazardous Materials have not been transported or disposed of from the Facilities,
or generated, treated, stored or disposed of at, on or under any of the Facilities or any
other location, in
each case by or on behalf of any Loan Party or any Subsidiary in violation of, or in a
manner that would be reasonably likely to give rise to liability under, any applicable
Environmental Law.


 


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(e) No judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Loan Parties, threatened, under any Environmental Law to which any Loan
Party or any Subsidiary is or will be named as a party, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law with respect
to any Loan Party, any Subsidiary, the Facilities or the Businesses.




(f) There has been no release or threat of release of Hazardous Materials at or from
the Facilities, or arising from or related to the operations (including, without limitation,
disposal) of any Loan Party or any Subsidiary in connection with the Facilities or otherwise
in connection with the Businesses, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws.



6.10 Insurance.



The properties of the Loan Parties and their Subsidiaries are insured with financially sound
and reputable insurance companies not Affiliates of such Persons, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the applicable Loan Party or the
applicable Subsidiary operates. The insurance coverage of the Loan Parties and their Subsidiaries
as in effect on the Closing Date is outlined as to carrier, policy number, expiration date, type,
amount and deductibles on Schedule 6.10.



6.11 Taxes.



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



6.12 ERISA Compliance.



(a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Internal Revenue Code and other federal or state Laws. Each Plan that is intended to
qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination
letter from the IRS or an application for such a letter is currently being processed by the IRS
with respect thereto and, to the best knowledge of the Loan Parties, nothing has occurred which
would prevent, or cause the loss of, such qualification. Each Loan Party and each ERISA Affiliate
have made all required contributions to each Plan subject to Section 412, Section 430 or Section
431 of the Internal Revenue Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412, Section 430 or Section 431 of the Internal Revenue
Code has been made with respect to any Plan.



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


 


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(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) the minimum
required contribution (as defined in Section 430(a) of the Internal Revenue Code) has been made for
each Pension Plan; (iii) no Loan Party or any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party or 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
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) no Loan Party or any
ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.



6.13 Subsidiaries.



Set forth on Schedule 6.13 is a complete and accurate list as of the Closing Date of
each Subsidiary of any Loan Party, together with (i) jurisdiction of formation, (ii) number of
shares of each class of Equity Interests outstanding, (iii) number and percentage of outstanding
shares of each class owned (directly or indirectly) by any Loan Party or any Subsidiary and (iv)
number and effect, if exercised, of all outstanding options, warrants, rights of conversion or
purchase and all other similar rights with respect thereto. The outstanding Equity Interests of
each Subsidiary of any Loan Party is validly issued, fully paid and non-assessable.



6.14 Margin Regulations; Investment Company Act.



(a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing, not more than 25% of
the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a
consolidated basis) subject to the provisions of Section 8.01 or Section 8.05 or
subject to any restriction contained in any agreement or instrument between the Borrower and any
Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section
9.01(e) will be margin stock.



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



6.15 Disclosure.



Each Loan Party has disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No report, financial statement, certificate or
other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each
case, as modified or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided
that, with respect to projected financial information, the Loan Parties represent only that such
information was prepared in good faith based upon assumptions believed to be reasonable at the
time.


 


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6.16 Compliance with Laws.



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



6.17 Intellectual Property; Licenses, Etc.



Each Loan Party and its Subsidiaries own, or possess the legal right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses
and other intellectual property rights (collectively, “IP Rights”) that are reasonably
necessary for the operation of their respective businesses. Set forth on Schedule 6.17 is
a list of all IP Rights registered or pending registration with the United States Copyright Office
or the United States Patent and Trademark Office and owned by each Loan Party as of the Closing
Date. Except for such claims and infringements that could not reasonably be expected to have a
Material Adverse Effect, no claim has been asserted and is pending by any Person challenging or
questioning the use of any IP Rights or the validity or effectiveness of any IP Rights, nor does
any Loan Party know of any such claim, and, to the knowledge of the Loan Parties, the use of any IP
Rights by any Loan Party or any of its Subsidiaries or the granting of a right or a license in
respect of any IP Rights from any Loan Party or any of its Subsidiaries does not infringe on the
rights of any Person. As of the Closing Date, none of the IP Rights owned by any of the Loan
Parties or any of its Subsidiaries is subject to any licensing agreement or similar arrangement
except as set forth on Schedule 6.17.



6.18 Solvency.



The Loan Parties are Solvent on a consolidated basis.



6.19 Perfection of Security Interests in the Collateral.



The Collateral Documents create valid security interests in, and Liens on, the Collateral
purported to be covered thereby, which security interests and Liens are currently perfected
security interests and Liens, prior to all other Liens other than Permitted Liens.



6.20 Business Locations.



Set forth on Schedule 6.20(a) is a list of all real property located in the United
States that is owned or leased by the Loan Parties as of the Closing Date. Set forth on
Schedule 6.20(b) is the tax payer identification number and organizational identification
number of each Loan Party as of the Closing Date. The exact legal name and state of organization
of each Loan Party is as set forth on the signature pages hereto. Except as set forth on
Schedule 6.20(c), no Loan Party has during the five years preceding the Closing Date (i)
changed its legal name, (ii) changed its state of formation, or (iii) been party to a merger,
consolidation or other change in structure.



6.21 Labor Matters.



There are no collective bargaining agreements or Multiemployer Plans covering the employees of
any Loan Party or any Subsidiary as of the Closing Date and neither any Loan Party nor any
Subsidiary has suffered any strikes, walkouts, work stoppages or other material labor difficulty
within the last five years.


 


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ARTICLE VII




AFFIRMATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, the Loan Parties shall and shall cause each
Subsidiary to:



7.01 Financial Statements.



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




(a) upon the earlier of the date that is ninety days after the end of each fiscal year
of the Borrower or the date such information is filed with the SEC, a consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such
fiscal year, and the related consolidated and consolidating statements of income or
operations, changes in shareholders’ equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report
and opinion of an independent certified public accountant of nationally recognized standing
acceptable to the Required Lenders, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any “going concern”
or like qualification or exception or any qualification or exception as to the scope of such
audit, and such consolidating statements to be certified by the chief executive officer or
chief financial officer of the Borrower to the effect that such statements are fairly stated
in all material respects when considered in relation to the consolidated financial
statements of the Borrower and its Subsidiaries; and




(b) upon the earlier of the date that is forty-five days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower or the date such information
is filed with the SEC, a consolidated and consolidating balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal quarter, and the related consolidated and
consolidating statements of income or operations, changes in shareholders’ equity and cash
flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended,
setting forth in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the previous fiscal
year, all in reasonable detail and certified by a Responsible Officer of the Borrower as
fairly presenting the financial condition, results of operations, shareholders’ equity and
cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes and such consolidating
statements to be certified by the chief executive officer or chief financial officer of the
Borrower to the effect that such statements are fairly stated in all material respects when
considered in relation to the consolidated financial statements of the Borrower and its
Subsidiaries.



7.02 Certificates; Other Information.



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




(a) concurrently with the delivery of the financial statements referred to in
Section 7.01(a), a certificate of its independent certified public accountants
certifying such financial statements and stating that in making the examination necessary
therefor no knowledge was
obtained of any Default or, if any such Default shall exist, stating the nature and
status of such event;


 


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(b) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by
a Responsible Officer of the Borrower;




(c) at least 30 days prior to the end of each fiscal year of the Borrower, beginning
with the fiscal year ending December 31, 2010, an annual business plan and budget of the
Borrower and its Subsidiaries containing, among other things, pro forma financial statements
for each quarter of the next fiscal year;




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




(e) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a certificate of a Responsible Officer of the
Borrower containing information regarding the amount of all Dispositions, Involuntary
Dispositions, Debt Issuances, Equity Issuances and Acquisitions that occurred during the
period covered by such financial statements;




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




(g) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the
terms of any indenture, loan or credit or similar agreement and not otherwise required to be
furnished to the Lenders pursuant to Section 7.01 or any other clause of this
Section 7.02;




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




(i) promptly, such additional information regarding the business, financial or
corporate affairs of any Loan Party or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time request; and




(j) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a certificate of a Responsible Officer of the
Borrower (i) listing (A) all applications by any Loan Party, if any, for Copyrights, Patents
or Trademarks (each such term as defined in the Security Agreement) made since the date of
the prior certificate (or, in the case of the first such certificate, the Closing Date), (B)
all issuances of registrations or letters on existing applications by any Loan Party for
Copyrights, Patents and Trademarks (each such term as defined in the Security
Agreement) received since the date of the prior certificate (or, in the case of the
first such certificate, the Closing Date), and (C) all Trademark Licenses, Copyright
Licenses and Patent Licenses (each such term as defined in the Security Agreement) entered
into by any Loan Party since the date of the prior certificate (or, in the case of the first
such certificate, the Closing Date), and (ii) attaching the insurance binder or other
evidence of insurance for any insurance coverage of any Loan Party or any Subsidiary that
was renewed, replaced or modified during the period covered by such financial statements.


 


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Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02 (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 11.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or
any Lender that requests the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein,
in every instance the Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 7.02(b) to the Administrative Agent. Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery
or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.



The Borrower hereby acknowledges that (a) the Administrative Agent and/or BAS will make
available to the Lenders materials and/or information provided by or on behalf of the Borrower
hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material
non-public information with respect to the Borrower or its Affiliates, or the respective securities
of any of the foregoing, and who may be engaged in investment and other market-related activities
with respect to such Person’s securities. The Borrower hereby agrees that (w) all Borrower
Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked
“PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to
have authorized the Administrative Agent, BAS and the Lenders to treat such Borrower Materials as
not containing any material non-public information with respect to the Borrower or its securities
for purposes of United States federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be treated as set
forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated as “Public Side Information;” and (z)
the Administrative Agent and BAS shall be entitled to treat any Borrower Materials that are not
marked “PUBLIC” as being suitable only for posting on a portion of the Platform that is not
designated as “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be
under no Obligation to mark any borrower Materials “PUBLIC”.


 


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7.03 Notices.



(a) Promptly (and in any event, within two Business Days) notify the Administrative Agent and
each Lender of the occurrence of any Default.



(b) Promptly (and in any event, within five Business Days) notify the Administrative Agent and
each Lender of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of any Loan Party or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between any Loan Party or any Subsidiary and any Governmental Authority;
or (iii) the commencement of, or any material development in, any litigation or proceeding
affecting any Loan Party or any Subsidiary, including pursuant to any applicable Environmental
Laws.



(c) Promptly (and in any event, within five Business Days) notify the Administrative Agent and
each Lender of the occurrence of any ERISA Event.



(d) Promptly (and in any event, within five Business Days) notify the Administrative Agent and
each Lender of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary, including any determination by the Borrower referred to in Section
2.08(b).



(e) Upon the reasonable written request of the Administrative Agent following the occurrence
of any event or the discovery of any condition which the Administrative Agent or the Required
Lenders believe has caused (or could be reasonably expected to cause) the representations and
warranties set forth in Section 6.09 to be untrue in any material respect, furnish or cause
to be furnished to the Administrative Agent, at the Loan Parties’ expense, a report of an
environmental assessment of reasonable scope, form and depth, (including, where appropriate,
invasive soil or groundwater sampling) by a consultant acceptable to the Administrative Agent as to
the nature and extent of the presence of any Materials of Environmental Concern on any Real
Properties (as defined in Section 6.09) and as to the compliance by any Loan Party or any
of its Subsidiaries with Environmental Laws at such Real Properties. If the Loan Parties fail to
deliver such an environmental report within seventy-five (75) days after receipt of such written
request then the Administrative Agent may arrange for the same, and the Loan Parties hereby grant
to the Administrative Agent and its representatives access to the Real Properties to undertake such
an assessment (including, where appropriate, invasive soil or groundwater sampling). The cost of
any assessment arranged for by the Administrative Agent pursuant to this provision will be payable
by the Loan Parties on demand and added to the obligations secured by the Collateral Documents.



Each notice pursuant to this Section 7.03(a) through (e) shall be accompanied
by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the applicable Loan Party has taken and proposes to
take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan Document that have been
breached.



7.04 Payment of Obligations.



Pay and discharge, as the same shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon
it or its properties or assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by the Loan Party or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a
Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing such Indebtedness.


 


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7.05 Preservation of Existence, Etc.




(a) Preserve, renew and maintain in full force and effect its legal existence under the Laws
of the jurisdiction of its organization except in a transaction permitted by Section 8.04
or 8.05.



(b) Preserve, renew and maintain in full force and effect its good standing under the Laws of
the jurisdiction of its organization, except to the extent the failure to do so could not
reasonably be expected to have a Material Adverse Effect.



(c) Take all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except to the extent that
the failure to do so could not reasonably be expected to have a Material Adverse Effect.



(d) Preserve or renew all of its material registered patents, copyrights, trademarks, trade
names and service marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.



7.06 Maintenance of Properties.



(a) Maintain, preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear and tear excepted.



(b) Make all necessary repairs thereto and renewals and replacements thereof, except where the
failure to do so could not reasonably be expected to have a Material Adverse Effect.



(c) Use the standard of care typical in the industry in the operation and maintenance of its
facilities.



7.07 Maintenance of Insurance.



Maintain in full force and effect insurance (including worker’s compensation insurance,
liability insurance, casualty insurance and business interruption insurance) with financially sound
and reputable insurance companies not Affiliates of any Loan Party, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the applicable Loan Party or the
applicable Subsidiary operates. The Administrative Agent shall be named as loss payee or
mortgagee, as its interest may appear, and/or additional insured with respect to any such insurance
providing coverage in respect of any Collateral, and each provider of any such insurance shall
agree, by endorsement upon the policy or policies issued by it or by independent instruments
furnished to the Administrative Agent, that it will give the Administrative Agent thirty (30) days
prior written notice before any such policy or policies shall be altered or canceled.



7.08 Compliance with Laws.



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


 


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7.09 Books and Records.



(a) Maintain proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial transactions and matters
involving the assets and business of such Loan Party or such Subsidiary, as the case may be.



(b) Maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over such Loan Party or
such Subsidiary, as the case may be.



7.10 Inspection Rights.



Permit representatives and independent contractors of the Administrative Agent and each Lender
to visit and inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all at the expense of
the Borrower and at such reasonable times during normal business hours and as often as may be
desired, upon reasonable advance notice to the Borrower; provided, however, that
when an Event of Default exists the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.



7.11 Use of Proceeds.



Use the proceeds of the Credit Extensions (a) to refinance certain existing Indebtedness, (b)
to finance working capital, capital expenditures and Permitted Acquisitions and (c) for other
general corporate purposes, provided that in no event shall the proceeds of the Credit
Extensions be used in contravention of any Law or of any Loan Document.



7.12 Additional Subsidiaries.





Within thirty (30) days after the acquisition or formation of any Subsidiary:




(a) notify the Administrative Agent thereof in writing, together with the (i)
jurisdiction of formation, (ii) number of shares of each class of Equity Interests
outstanding, (iii) number and percentage of outstanding shares of each class owned (directly
or indirectly) by the Borrower or any Subsidiary and (iv) number and effect, if exercised,
of all outstanding options, warrants, rights of conversion or purchase and all other similar
rights with respect thereto; and




(b) if such Subsidiary is a Domestic Subsidiary, cause such Person to (i) become a
Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement or
such other documents as the Administrative Agent shall deem appropriate for such purpose,
and (ii) deliver to the Administrative Agent documents of the types referred to in
Sections 5.01(f) and (g) and favorable opinions of counsel to such Person
(which shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (a)), all in form, content and
scope satisfactory to the Administrative Agent.



7.13 ERISA Compliance.



Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each
Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal
Revenue Code
and other federal or state law; (b) cause each Plan that is qualified under Section 401(a) of
the Internal Revenue Code to maintain such qualification; and (c) make all required contributions
to any Plan subject to Section 412, Section 430 or Section 431 of the Internal Revenue Code.


 


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7.14 Pledged Assets.



(a) Equity Interests. Cause (a) 100% of the issued and outstanding Equity Interests
of each Domestic Subsidiary and (b) 66% (or such greater percentage that, due to a change in an
applicable Law after the date hereof, (1) could not reasonably be expected to cause the
undistributed earnings of such Foreign Subsidiary as determined for United States federal income
tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s United States parent
and (2) could not reasonably be expected to cause any material adverse tax consequences) of the
issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by a
Loan Party or any Domestic Subsidiary to be subject at all times to a first priority, perfected
Lien in favor of the Administrative Agent, for the benefit of the Lenders, pursuant to the terms
and conditions of the Collateral Documents, together with opinions of counsel and any filings and
deliveries necessary in connection therewith to perfect the security interests therein, all in form
and substance satisfactory to the Administrative Agent.



(b) Other Property. (i) Cause all of its owned and leased real and personal property
other than Excluded Property to be subject at all times to first priority, perfected and, in the
case of real property (whether leased or owned), title insured Liens in favor of the Administrative
Agent, for the benefit of the Lenders, to secure the Obligations pursuant to the terms and
conditions of the Collateral Documents or, with respect to any such property acquired subsequent to
the Closing Date, such other additional security documents as the Administrative Agent shall
request, subject in any case to Permitted Liens and (ii) deliver such other documentation as the
Administrative Agent may request in connection with the foregoing, including, without limitation,
appropriate UCC-1 financing statements, real estate title insurance policies, surveys,
environmental reports, landlord’s waivers, certified resolutions and other organizational and
authorizing documents of such Person, favorable opinions of counsel to such Person (which shall
cover, among other things, the legality, validity, binding effect and enforceability of the
documentation referred to above and the perfection of the Administrative Agent’s Liens thereunder)
and other items of the types required to be delivered pursuant to Section 5.01(f), all in
form, content and scope satisfactory to the Administrative Agent.



7.15 Post-Closing Deliverables.



(a) Within forty-five (45) days of the Closing Date, pledge to the Administrative Agent the
Equity Interests of EIH Holdings Kommanditbolag and EBIX Software India Private Limited, required
to be pledged pursuant to Section 7.14(a), pursuant to documentation satisfactory to the
Administrative Agent, together with such opinions of counsel and any filings and deliveries
necessary in connection therewith to perfect the security interest therein, all in form and
substance satisfactory to the Administrative Agent.



(b) Within thirty (30) days of the Closing Date, cause Finetre Corporation to (i) become a
Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and (ii)
deliver to the Administrative Agent documents of the types referred to in Sections 5.01(f)
and (g) and favorable opinions of counsel to Finetre Corporation (which shall cover, among
other things, the legality, validity, binding effect and enforceability of the documentation
referred to in clause (i)), all in form, content and scope satisfactory to the Administrative
Agent.



(c) Within ten (10) days of the Closing Date, deliver to the Administrative Agent the stock
certificate for the outstanding shares of Ebix Asia Holdings Inc. required to be pledged pursuant
to Section 7.14(a) together with an executed stock power in form and substance satisfactory
to the Administrative Agent.


 


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ARTICLE VIII




NEGATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, no Loan Party shall, nor shall it permit any
Subsidiary to, directly or indirectly:



8.01 Liens.



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




(a) Liens pursuant to any Loan Document;




(b) Liens existing on the date hereof and listed on Schedule 8.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby is
not changed, (ii) the amount secured or benefited thereby is not increased, (iii) the direct
or any contingent obligor with respect thereto is not changed, and (iv) any renewal or
extension of the obligations secured or benefited thereby is permitted by Section
8.03(b);




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




(d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business,
provided that such Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the same or are being
contested in good faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established;




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




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




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


 


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(h) Liens securing judgments for the payment of money (or appeal or other surety bonds
relating to such judgments) not constituting an Event of Default under Section
9.01(h);




(i) Liens securing Indebtedness permitted under Section 8.03(e);
provided that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not
exceed the cost (negotiated on an arm’s length basis) of the property being acquired on the
date of acquisition and (iii) such Liens attach to such property concurrently with or within
ninety days after the acquisition thereof;




(j) leases or subleases granted to others not interfering in any material respect with
the business of any Loan Party or any of its Subsidiaries;




(k) any interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign jurisdictions)
relating to, leases permitted by this Agreement;




(l) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 8.02;




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




(n) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection; and




(o) Liens of sellers of goods to the Borrower and any of its Subsidiaries arising under
Article 2 of the Uniform Commercial Code or similar provisions of applicable law in the
ordinary course of business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses.



8.02 Investments.




Make any Investments, except:




(a) Investments held by the Borrower or such Subsidiary in the form of cash or Cash
Equivalents;




(b) Investments existing as of the Closing Date and set forth in Schedule 8.02;




(c) Investments in any Person that is a Loan Party prior to giving effect to such
Investment;




(d) Investments by any Subsidiary of the Borrower that is not a Loan Party in any other
Subsidiary of the Borrower that is not a 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, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;




(f) Guarantees permitted by Section 8.03; and




(g) Permitted Acquisitions.


 


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8.03 Indebtedness.



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




(a) Indebtedness under the Loan Documents;




(b) Indebtedness of the Borrower and its Subsidiaries set forth in Schedule 8.03;




(c) intercompany Indebtedness permitted under Section 8.02;




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




(e) purchase money Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) hereafter incurred by the Borrower or any of its Subsidiaries to finance
the purchase of fixed assets, and renewals, refinancings and extensions thereof,
provided that (i) the total of all such Indebtedness for all such Persons taken
together shall not exceed an aggregate principal amount of $2,500,000 at any one time
outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the
asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount
in excess of the principal balance outstanding thereon at the time of such refinancing;




(f) unsecured Indebtedness of the Borrower and its Subsidiaries incurred after the
Closing Date in an aggregate principal amount not to exceed $5,000,000 at any one time
outstanding; and




(g) any other Indebtedness consented to in writing by the Required Lenders in their
sole discretion.



8.04 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; provided that, notwithstanding the
foregoing provisions of this Section 8.04 but subject to the terms of Sections 7.12
and 7.14, (a) the Borrower may merge or consolidate with any of its Subsidiaries provided
that the Borrower shall be the continuing or surviving corporation, (b) any Loan Party other than
the Borrower may merge or consolidate with any other Loan Party other than the Borrower, (c) any
Foreign Subsidiary may be merged or consolidated with or into any Loan Party provided that such
Loan Party shall be the continuing or surviving corporation and (d) any Foreign Subsidiary may be
merged or consolidated with or into any other Foreign Subsidiary.


 


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8.05 Dispositions.



Make any Disposition unless (i) the consideration paid in connection therewith shall be cash
or Cash Equivalents paid contemporaneous with consummation of the transaction and shall be in an
amount not less than the fair market value of the property disposed of, (ii) if such transaction is
a Sale and Leaseback Transaction, such transaction is not prohibited by the terms of Section
8.15, (iii) such transaction does not involve the sale or other disposition of a minority
equity interest in any Subsidiary, (iv) such transaction does not involve a sale or other
disposition of receivables other than receivables owned by or attributable to other property
concurrently being disposed of in a transaction otherwise permitted under this Section
8.05, and (v) the aggregate net book value of all of the assets sold or otherwise disposed of
by the Borrower and its Subsidiaries in all such transactions occurring during the term of this
Agreement shall not exceed $3,500,000 in the aggregate.



8.06 Restricted Payments.



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




(a) each Subsidiary may make Restricted Payments to the Borrower or any Guarantor;




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




(c) the Borrower may repurchase its Equity Interests; provided that, after
giving effect thereto, the aggregate amount of such repurchases made after January 28, 2010
do not exceed $3,000,000; and




(d) in connection with a stock split, the Borrower may issue additional shares of
Equity Interests to its shareholders; provided, that the aggregate fair market value
of the Equity Interests held by each holder of the Borrower’s Equity Interests after any
such stock slit shall not be greater than the aggregate fair market value of the Equity
Interests held such holder immediately prior to such stock split.



8.07 Change in Nature of Business.



Engage in any material line of business substantially different from those lines of business
conducted by the Borrower and its Subsidiaries on the Closing Date or any business substantially
related or incidental thereto.



8.08 Transactions with Affiliates and Insiders.



Enter into or permit to exist any transaction or series of transactions with any officer,
director or Affiliate of such Person other than (a) advances of working capital to any Loan Party,
(b) transfers of cash and assets to any Loan Party, (c) intercompany transactions expressly
permitted by Section 8.02, Section 8.03, Section 8.04, Section 8.05
or Section 8.06, (d) normal and reasonable compensation and reimbursement of expenses of
officers and directors in the ordinary course of business and (e) except as otherwise specifically
limited in this Agreement, other transactions which are entered into in the ordinary course of such
Person’s business on terms and conditions substantially as favorable to such Person as would be
obtainable by it in a comparable arms-length transaction with a Person other than an officer,
director or Affiliate.


 


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8.09 Burdensome Agreements.



(a) Enter into, or permit to exist, any Contractual Obligation that encumbers or restricts on
the ability of any such Person to (i) pay dividends or make any other distributions to any Loan
Party on its Equity Interests or with respect to any other interest or participation in, or
measured by, its profits, (ii) pay any Indebtedness or other obligation owed to any Loan Party,
(iii) make loans or advances to any Loan Party, (iv) sell, lease or transfer any of its property to
any Loan Party, (v) pledge its property pursuant to the Loan Documents or any renewals,
refinancings, exchanges, refundings or extension thereof or (vi) act as a Loan Party pursuant to
the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof,
except (in respect of any of the matters referred to in clauses (i)-(v) above) for (1) this
Agreement and the other Loan Documents, (2) any document or instrument governing Indebtedness
incurred pursuant to Section 8.03(e), provided that any such restriction contained
therein relates only to the asset or assets constructed or acquired in connection therewith, (3)
any Permitted Lien or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the asset or assets subject to such
Permitted Lien or (4) customary restrictions and conditions contained in any agreement relating to
the sale of any property permitted under Section 8.05 pending the consummation of such
sale.



(b) Enter into, or permit to exist, any Contractual Obligation that prohibits or otherwise
restricts the existence of any Lien upon any of its property in favor of the Administrative Agent
(for the benefit of the Lenders) for the purpose of securing the Obligations, whether now owned or
hereafter acquired, or requiring the grant of any security for any obligation if such property is
given as security for the Obligations, except (i) any document or instrument governing Indebtedness
incurred pursuant to Section 8.03(e), provided that any such restriction contained
therein relates only to the asset or assets constructed or acquired in connection therewith, (ii)
in connection with any Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien, and (iii) pursuant to customary restrictions and conditions
contained in any agreement relating to the sale of any property permitted under Section
8.05, pending the consummation of such sale.



8.10 Use of Proceeds.



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



8.11 Financial Covenants.



(a) Consolidated Leverage Ratio. Commencing with the fiscal quarter ending December
31, 2009, permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the
Borrower to be greater than 2.5 to 1.0.



(b) Consolidated Fixed Charge Coverage Ratio. Commencing with the fiscal quarter
ending December 31, 2009, permit the Consolidated Fixed Charge Coverage Ratio as of the end of any
fiscal quarter of the Borrower to be less than 1.75 to 1.0.



(c) Consolidated EBITDA. Commencing with the fiscal quarter ending December 31, 2009,
permit the Consolidated EBITDA as of the end of any period of four consecutive fiscal quarters of
the Borrower to be less than $40,000,000.


 


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8.12 Prepayment of Other Indebtedness, Etc.




Make (or give any notice with respect thereto) any voluntary or optional payment or prepayment
or redemption or acquisition for value of (including without limitation, by way of depositing money
or securities with the trustee with respect thereto before due for the purpose of paying when due),
refund, refinance or exchange of any Indebtedness of any Loan Party or any Subsidiary (other than
Indebtedness arising under the Loan Documents).



8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of
Entity.




(a) Amend, modify or change its Organization Documents in a manner adverse to the Lenders.




(b) Change its fiscal year.



(c) Without providing ten (10) days prior written notice to the Administrative Agent, change
its name, state of formation or form of organization.



8.14 Ownership of Subsidiaries.



Notwithstanding any other provisions of this Agreement to the contrary, (i) permit any Person
(other than any Loan Party or any Wholly Owned Subsidiary of the Borrower) to own any Equity
Interests of any Subsidiary of any Loan Party, except to qualify directors where required by
applicable law or to satisfy other requirements of applicable law with respect to the ownership of
Equity Interests of Foreign Subsidiaries, (ii) permit any Loan Party or any Subsidiary of any Loan
Party to issue or have outstanding any shares of preferred Equity Interests or (iii) create, incur,
assume or suffer to exist any Lien on any Equity Interests of any Subsidiary of any Loan Party,
except for Permitted Liens.



8.15 Sale Leasebacks.




Enter into any Sale and Leaseback Transaction.



ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES




9.01 Events of Default.




Any of the following shall constitute an Event of Default:




(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan, or (ii) within three
Business Days after the same becomes due, any interest on any Loan, or any fee due
hereunder, or (iii) within five Business Days after the same becomes due, any other amount
payable hereunder or under any other Loan Document; or




(b) Specific Covenants. Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.01, 7.02, 7.03,
7.05, 7.10, 7.11, 7.12 or 7.14 or Article
VIII or


 


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




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




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




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




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


 


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(h) Judgments. There is entered against any Loan Party or any Subsidiary (i)
one or more final judgments or orders for the payment of money in an aggregate amount
exceeding
$100,000 (to the extent not covered by independent third-party insurance as to which
the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments
that have, or could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by
any creditor upon such judgment or order, or (B) there is a period of ten consecutive days
during which a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or




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




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




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



9.02 Remedies Upon Event of Default.



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




(a) declare the commitment of each Lender to make Loans to be terminated, whereupon
such commitments and obligation shall be terminated;




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




(c) exercise on behalf of itself and the Lenders all rights and remedies available to
it and the Lenders under the Loan Documents;



provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans 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 as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any Lender.


 


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9.03 Application of Funds.



After the exercise of remedies provided for in Section 9.02 (or after the Loans have
automatically become immediately due and payable have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 9.02), any amounts received on
account of the Obligations shall be applied by the Administrative Agent in the following order:




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




Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the Lenders
(including fees, charges and disbursements of counsel to the respective Lenders) arising
under the Loan Documents and amounts payable under Article III, ratably among them
in proportion to the respective amounts described in this clause Second payable to
them;




Third, to payment of that portion of the Obligations constituting accrued and
unpaid interest on the Loans and fees, premiums and scheduled periodic payments, and any
interest accrued thereon, due under any Swap Contract between any Loan Party and any Lender,
or any Affiliate of a Lender, to the extent such Swap Contract is permitted by Section
8.03(d), ratably among the Lenders (and, in the case of such Swap Contracts, Affiliates
of Lenders) in proportion to the respective amounts described in this clause Third
held by them;




Fourth, to (a) payment of that portion of the Obligations constituting accrued
and unpaid principal of the Loans, (b) payment of breakage, termination or other payments,
and any interest accrued thereon, due under any Swap Contract between any Loan Party and any
Lender, or any Affiliate of a Lender, to the extent such Swap Contract is permitted by
Section 8.03(d) and (c) payments of amounts due under any Treasury Management
Agreement between any Loan Party and any Lender, or any Affiliate of a Lender (and, in the
case of such Swap Contracts, Affiliates of Lenders) in proportion to the respective amounts
described in this clause Fourth held by them; and




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



ARTICLE X




ADMINISTRATIVE AGENT




10.01 Appointment and Authority.



(a) Each of the Lenders hereby irrevocably appoints Bank of America to act on its behalf as
the Administrative Agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are incidental thereto. The provisions of this Article are solely for the benefit of
the Administrative Agent, the Lenders, and neither the Borrower nor any other Loan Party shall have
rights as a third party beneficiary of any of such provisions.


 


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(b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative
Agent to act as the agent of 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 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 10.05 for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral
Documents, or for exercising any rights and remedies thereunder at the direction of the
Administrative Agent), shall be entitled to the benefits of all provisions of this Article
X and Article XI (including Section 11.04(c), as though such co-agents,
sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set
forth in full herein with respect thereto.



10.02 Rights as a Lender.



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



10.03 Exculpatory Provisions.



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




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




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




(c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Loan Party or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.



The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative Agent by the
Borrower or a Lender.


 


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The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



10.04 Reliance by Administrative Agent.



The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the
Administrative Agent may presume that such condition is satisfactory to such Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender prior to the
making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel
for the Loan Parties), independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.



10.05 Delegation of Duties.



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




 


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10.06 Resignation of Administrative Agent.



The Administrative Agent may at any time give notice of its resignation to the Lenders and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office in the United States.
If no such successor shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that if
the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Loan Documents and (2) all payments, communications and determinations provided to be made
by, to or through the Administrative Agent shall instead be made by or to each Lender directly,
until such time as the Required Lenders appoint a successor Administrative Agent as provided for
above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations hereunder or under
the other Loan Documents (if not already discharged therefrom as provided above in this Section).
The fees payable by the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such successor. After
the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 11.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



10.07 Non-Reliance on Administrative Agent and Other Lenders.



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



10.08 No Other Duties; Etc.



Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers,
syndication agents, documentation agents or co-agents shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent or a Lender hereunder.



 


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10.09 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 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 and all other Obligations (other than obligations under
Swap Contracts or Treasury Management Agreements to which the Administrative Agent is not a
party) 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 Sections 2.07 and 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 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 Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.07
and 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.



10.10 Collateral and Guaranty Matters.



Each of the Lenders irrevocably authorize the Administrative Agent, at its option and in its
discretion,




(a) to release any Lien on any Collateral granted to or held by the Administrative
Agent under any Loan Document (i) upon termination of the Aggregate Revolving Commitments
and payment in full of all Obligations (other than contingent indemnification obligations),
(ii) that is transferred or to be transferred as part of or in connection with any
Disposition permitted hereunder or under any other Loan Document or any Involuntary
Disposition, or (iii) as approved in accordance with Section 11.01;




(b) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by Section 8.01(i); and




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




Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in
particular types or items of property, or to release any Guarantor from its obligations
under the Guaranty, pursuant to this Section 10.10.


 


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ARTICLE XI




MISCELLANEOUS




11.01 Amendments, Etc.



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




(a) no such amendment, waiver or consent shall:




(i) extend or increase the Commitment of a Lender (or reinstate any Commitment
terminated pursuant to Section 9.02) without the written consent of such
Lender whose Commitment is being extended or increased (it being understood and
agreed that a waiver of any condition precedent set forth in Section 5.02 or
of any Default or a mandatory reduction in Commitments is not considered an
extension or increase in Commitments of any Lender);




(ii) postpone any date fixed by this Agreement or any other Loan Document for
any payment of principal (excluding mandatory prepayments), interest, fees or other
amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction
of the Commitments hereunder or under any other Loan Document without the written
consent of each Lender entitled to receive such payment or whose Commitments are to
be reduced;




(iii) reduce the principal of, or the rate of interest specified herein on, any
Loan, or (subject to clause (i) of the final proviso to this Section 11.01)
any fees or other amounts payable hereunder or under any other Loan Document without
the written consent of each Lender entitled to receive such payment of principal,
interest, fees or other amounts; provided, however, that only the
consent of the Required Lenders shall be necessary to amend the definition of
“Default Rate” or to waive any obligation of the Borrower to pay interest at the
Default Rate;




(iv) change Section 9.03 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender
directly affected thereby;




(v) change any provision of this Section 11.01(a) or the definition of
“Required Lenders” without the written consent of each Lender directly affected
thereby;




(vi) except in connection with a Disposition permitted under Section
8.05, release all or substantially all of the Collateral without the written
consent of each Lender directly affected thereby; or




(vii) release the Borrower or, except in connection with a merger or
consolidation permitted under Section 8.04 or a Disposition permitted under
Section 8.05, all or substantially all of the Guarantors without the written
consent of each Lender directly affected thereby, except to the extent the release
of any Guarantor is permitted pursuant to Section 10.10 (in which case such
release may be made by the Administrative Agent acting alone).




(b) unless also signed by the Administrative Agent, no amendment, waiver or consent
shall affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document;


 


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provided, however, that notwithstanding anything to the contrary herein, (i) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by
the parties thereto, (ii)
no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender, (iii) each Lender is entitled to vote as such Lender sees fit on any
bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous
consent provisions set forth herein and (iv) the Required Lenders shall determine whether or not to
allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding
and such determination shall be binding on all of the Lenders.



11.02 Notices and Other Communications; Facsimile Copies.



(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:




(i) if to the Borrower or any other Loan Party or the Administrative Agent, to the
address, telecopier number, electronic mail address or telephone number specified for such
Person on Schedule 11.02; and




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



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



(b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender pursuant to Article II if such
Lender has notified the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.



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


 


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(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided, however, that in no event shall
any Agent Party have any liability to the Borrower, any Lender or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or actual damages).



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



(e) Reliance by Administrative Agent 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 any Loan Party 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 Loan Parties shall indemnify the Administrative Agent, each Lender and
the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of a Loan Party. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.



11.03 No Waiver; Cumulative Remedies; Enforcement.




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 shall operate as a waiver
thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.


 


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Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 10.01 for the benefit of all the Lenders;
provided, however, that the foregoing shall not prohibit (a) the Administrative
Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely
in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any
Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms
of Section 2.11), or (c) any Lender from filing proofs of claim or appearing and filing
pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under
any Debtor Relief Law; and provided, further, that if at any time there is no
Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the
Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to
Section 10.01 and (ii) in addition to the matters set forth in clauses (b) and (c) of the
preceding proviso and subject to Section 2.11, any Lender may, with the consent of the
Required Lenders, enforce any rights and remedies available to it and as authorized by the Required
Lenders.



11.04 Expenses; Indemnity; and Damage Waiver.



(a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), and (ii) all out-of-pocket expenses incurred
by the Administrative Agent or any Lender (including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender), and shall pay all fees and time charges for
attorneys who may be employees of the Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with the Loans made,
including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.



(b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other
Loan Documents,



 


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(ii) any Loan or the use or proposed use
of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by a Loan Party or any of its Subsidiaries, or
any Environmental Liability related in any way to a Loan Party or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party
thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the
comparative, contributory or sole negligence of the Indemnitee; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party
against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under
any other Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent jurisdiction.



(c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
them to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent)
or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party
of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection
with such capacity. The obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.10(d).



(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No
Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use
by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.



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



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


 


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11.05 Payments Set Aside.



To the extent that any payment by or on behalf of any Loan Party is made to the Administrative
Agent or any Lender, or the Administrative 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 the
Administrative 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 (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate
from time to time in effect. The obligations of the Lenders under clause (b) of the preceding
sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.



11.06 Successors and Assigns.




(a) Successors and Assigns Generally. The provisions of this Agreement and the other
Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and
their respective successors and assigns permitted hereby, except that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder or thereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with
the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.



(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement and the other Loan
Documents (including all or a portion of its Commitment and the Loans at the time owing to it;
provided that any such assignment shall be subject to the following conditions:




(i) Minimum Amounts.




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




(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000 unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single
assignee (or to an assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has been
met;


 


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




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




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments if such
assignment is to a Person that is not a Lender with a Commitment in respect of the
Commitment subject to such assignment, an Affiliate of such Lender or an Approved
Fund with respect to such Lender.




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




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




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




(vi) No Assignment to Defaulting Lenders. No such assignment shall be made to
any Defaulting Lender.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (d) of
this Section.


 


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



(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other modification described in
clauses (i) through (vii) of the Section 11.01(a) that affects such Participant. Subject
to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 11.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.11 as though it were a Lender.



(e) Limitation on Participant Rights. A Participant shall not be entitled to receive
any greater payment under Section 3.01 or 3.04 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) as though it were a Lender.



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





 


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11.07 Treatment of Certain Information; Confidentiality.



Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors
and representatives and to any direct or indirect contractual counterparty (or such contractual
counterparty’s professional advisor) under any Swap Contract relating to Loans outstanding under
this Agreement (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (d) to any other party
hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to a Loan Party and its obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any Lender or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.



For purposes of this Section, “Information” means all information received from a Loan
Party or any Subsidiary relating to the Loan Parties or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by such Loan Party or any Subsidiary,
provided that, in the case of information received from a Loan Party or any Subsidiary
after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



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



11.08 Set-off.



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


 


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11.09
Interest Rate Limitation.




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



11.10 Counterparts; Integration; Effectiveness.



This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or other electronic imaging means shall be effective as delivery of a manually executed
counterpart of this Agreement.



11.11 Survival of Representations and Warranties.



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



11.12 Severability.



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


 


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11.13 Replacement of Lenders.



If (i) any Lender requests compensation under Section 3.04, (ii) the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 3.01, or (iii) a Lender (a “Non-Consenting
Lender”) does not consent to a proposed change, waiver, discharge or termination with respect
to any Loan Document that has been approved by the Required Lenders as provided in Section
11.01 but requires unanimous consent of all Lenders or all Lenders directly affected thereby
(as applicable) and, or (iv) any Lender is a Defaulting Lender, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 11.06), all of its
interests, rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that:




(a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);




(b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Loan Documents (including any amounts under Section
3.05) from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);




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




(d) such assignment does not conflict with applicable Laws; and




(e) in the case of any such assignment resulting from a Non-Consenting Lender’s failure
to consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document, the applicable replacement bank, financial institution or Fund consents to the
proposed change, waiver, discharge or termination; provided that the failure by such
Non-Consenting Lender to execute and deliver an Assignment and Assumption shall not impair
the validity of the removal of such Non-Consenting Lender and the mandatory assignment of
such Non-Consenting Lender’s Commitments and outstanding Loans pursuant to this Section
11.13 shall nevertheless be effective without the execution by such Non-Consenting
Lender of an Assignment and Assumption.



A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



11.14 Governing Law; Jurisdiction; Etc.



(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD
REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.



(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY
LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


 


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



(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



11.15 Waiver of Right to Trial by Jury.



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



11.16 Electronic Execution of Assignments and Certain Other Documents.



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


 


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11.17 USA PATRIOT Act.



Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act. The Borrower shall, promptly following a request by the Administrative
Agent or any Lender, provide all documentation and other information that the Administrative Agent
or such Lender requests in order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the Act.



11.18 No Advisory or Fiduciary Relationship.



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



[SIGNATURE PAGES FOLLOW]



 


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



	 	 	 	 	 	 	 	 	 
	BORROWER:	 	EBIX, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robin Raina	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Raina	 	 
	 

	 	 	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 	 	 
	GUARANTORS:	 	EBIX INFORMATION SYSTEMS INTERNATIONAL, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robin Raina	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Raina	 	 
	 

	 	 	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	EBIX INSURANCE AGENCY, INC.,	 	 
	 	 	an Illinois corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robin Raina	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Raina	 	 
	 

	 	 	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	EBIXLIFE, INC.,	 	 
	 	 	a Utah corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robin Raina	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Raina	 	 
	 

	 	 	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	EBIX INTERNATIONAL, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robin Raina	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Raina	 	 
	 

	 	 	 	Title:
	 	President	 	 






 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	EBIX BPO DIVISION — SAN DIEGO,	 	 
	 	 	a California corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robin Raina	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Raina	 	 
	 

	 	 	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	JENQUEST, INC.,	 	 
	 	 	a California corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robin Raina	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Raina	 	 
	 

	 	 	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ACCLAMATION SYSTEMS, INC.,	 	 
	 	 	a Pennsylvania corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robin Raina	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Raina	 	 
	 

	 	 	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	E-Z DATA, INC.,	 	 
	 	 	a California corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robin Raina	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Raina	 	 
	 

	 	 	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	PEAK PERFORMANCE SOLUTIONS, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robin Raina	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Raina	 	 
	 

	 	 	 	Title:
	 	President	 	 






 


 









 





	 	 	 	 	 	 	 	 	 
	ADMINISTRATIVE AGENT:	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Thomas M. Paulk	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Thomas M. Paulk	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	LENDERS:	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Thomas M. Paulk	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Thomas M. Paulk	 	 
	 

	 	 	 	Title:
	 	Vice President