Exhibit 10.2


 




[Published CUSIP Number:                                    ]





 


 


CREDIT AGREEMENT


 


Dated
as of June 30, 2006


 


among


 


INFRASOURCE INCORPORATED,


 


as
the Borrower,


 


INFRASOURCE SERVICES, INC.,


 


as
Holdings,


 


BANK OF AMERICA, N.A.,


 


as
Administrative Agent, Swing Line Lender and L/C Issuer,


 


JPMORGAN CHASE BANK, N.A.


 


as
Syndication Agent,


 


LASALLE BANK NATIONAL ASSOCIATION and NATIONAL
CITY BANK


 


as
Co-Documentation Agents,


 


and


 


The
Other Lenders Party Hereto


 


BANC OF AMERICA SECURITIES LLC,


 


as


 


Sole
Lead Arranger and Sole Book Manager


 

















 


TABLE OF CONTENTS


 


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I.

  	
  DEFINITIONS AND ACCOUNTING
  TERMS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.01.

  	
  Defined
  Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.02.

  	
  Other
  Interpretive Provisions

  	
  23

  
	
   

  	
   

  	
   

  
	
  1.03.

  	
  Accounting
  Terms

  	
  24

  
	
   

  	
   

  	
   

  
	
  1.04.

  	
  Rounding

  	
  25

  
	
   

  	
   

  	
   

  
	
  1.05.

  	
  Times
  of Day

  	
  25

  
	
   

  	
   

  	
   

  
	
  1.06.

  	
  Letter
  of Credit Amounts

  	
  25

  
	
   

  	
   

  	
   

  
	
  1.07.

  	
  Exchange
  Rates; Currency Equivalents

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  THE COMMITMENTS AND CREDIT
  EXTENSIONS

  	
  25

  
	
   

  	
   

  	
   

  
	
  2.01.

  	
  Committed
  Loans

  	
  25

  
	
   

  	
   

  	
   

  
	
  2.02.

  	
  Borrowings,
  Conversions and Continuations of Loans

  	
  26

  
	
   

  	
   

  	
   

  
	
  2.03.

  	
  Letters
  of Credit

  	
  27

  
	
   

  	
   

  	
   

  
	
  2.04.

  	
  Swing
  Line Loans

  	
  35

  
	
   

  	
   

  	
   

  
	
  2.05.

  	
  Prepayments

  	
  38

  
	
   

  	
   

  	
   

  
	
  2.06.

  	
  Termination
  or Reduction of Commitments

  	
  38

  
	
   

  	
   

  	
   

  
	
  2.07.

  	
  Repayment
  of Loans

  	
  39

  
	
   

  	
   

  	
   

  
	
  2.08.

  	
  Interest

  	
  39

  
	
   

  	
   

  	
   

  
	
  2.09.

  	
  Fees

  	
  40

  
	
   

  	
   

  	
   

  
	
  2.10.

  	
  Computation
  of Interest and Fees

  	
  40

  
	
   

  	
   

  	
   

  
	
  2.11.

  	
  Evidence
  of Debt

  	
  41

  
	
   

  	
   

  	
   

  
	
  2.12.

  	
  Payments
  Generally; Administrative Agent’s Clawback

  	
  41

  
	
   

  	
   

  	
   

  
	
  2.13.

  	
  Sharing
  of Payments by Lenders

  	
  43

  
	
   

  	
   

  	
   

  
	
  2.14.

  	
  Increase
  in Commitments

  	
  44

  
	
   

  	
   

  	
   

  
	
  2.15.

  	
  The
  Term Loan Borrowings

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  TAXES, YIELD PROTECTION
  AND ILLEGALITY

  	
  45

  
	
   

  	
   

  	
   

  
	
  3.01.

  	
  Taxes

  	
  45

  
	
   

  	
   

  	
   

  
	
  3.02.

  	
  Illegality

  	
  47

  
	
   

  	
   

  	
   

  
	
  3.03.

  	
  Inability
  to Determine Rates

  	
  47

  
	
   

  	
   

  	
   

  
	
  3.04.

  	
  Increased
  Costs; Reserves on Eurodollar Rate Loans

  	
  48

  
	
   

  	
   

  	
   

  
	
  3.05.

  	
  Compensation
  for Losses

  	
  49

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  3.06.

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
  50

  
	
   

  	
   

  	
   

  
	
  3.07.

  	
  Survival

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  CONDITIONS PRECEDENT TO
  CREDIT EXTENSIONS

  	
  50

  
	
   

  	
   

  	
   

  
	
  4.01.

  	
  Conditions
  of Initial Credit Extension

  	
  50

  
	
   

  	
   

  	
   

  
	
  4.02.

  	
  Conditions
  to all Credit Extensions

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
  53

  
	
   

  	
   

  	
   

  
	
  5.01.

  	
  Existence,
  Qualification and Power

  	
  53

  
	
   

  	
   

  	
   

  
	
  5.02.

  	
  Authorization;
  No Contravention

  	
  53

  
	
   

  	
   

  	
   

  
	
  5.03.

  	
  Governmental
  Authorization; Other Consents

  	
  53

  
	
   

  	
   

  	
   

  
	
  5.04.

  	
  Binding
  Effect

  	
  54

  
	
   

  	
   

  	
   

  
	
  5.05.

  	
  Financial
  Statements; No Material Adverse Effect; No Internal Control Event

  	
  54

  
	
   

  	
   

  	
   

  
	
  5.06.

  	
  Litigation

  	
  54

  
	
   

  	
   

  	
   

  
	
  5.07.

  	
  No
  Default

  	
  55

  
	
   

  	
   

  	
   

  
	
  5.08.

  	
  Ownership
  of Property; Liens

  	
  55

  
	
   

  	
   

  	
   

  
	
  5.09.

  	
  Environmental
  Compliance

  	
  55

  
	
   

  	
   

  	
   

  
	
  5.10.

  	
  Insurance

  	
  55

  
	
   

  	
   

  	
   

  
	
  5.11.

  	
  Taxes

  	
  55

  
	
   

  	
   

  	
   

  
	
  5.12.

  	
  ERISA
  Compliance

  	
  55

  
	
   

  	
   

  	
   

  
	
  5.13.

  	
  Subsidiaries;
  Equity Interests

  	
  56

  
	
   

  	
   

  	
   

  
	
  5.14.

  	
  Margin
  Regulations; Investment Company Act

  	
  56

  
	
   

  	
   

  	
   

  
	
  5.15.

  	
  Disclosure

  	
  56

  
	
   

  	
   

  	
   

  
	
  5.16.

  	
  Compliance
  with Laws

  	
  56

  
	
   

  	
   

  	
   

  
	
  5.17.

  	
  Intellectual
  Property; Licenses, Etc

  	
  57

  
	
   

  	
   

  	
   

  
	
  5.18.

  	
  Solvency

  	
  57

  
	
   

  	
   

  	
   

  
	
  5.19.

  	
  Collateral
  Documents

  	
  57

  
	
   

  	
   

  	
   

  
	
  5.20.

  	
  Guaranty

  	
  57

  
	
   

  	
   

  	
   

  
	
  5.21.

  	
  Regulated
  Subsidiaries

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  AFFIRMATIVE COVENANTS

  	
  57

  
	
   

  	
   

  	
   

  
	
  6.01.

  	
  Financial
  Statements

  	
  57

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.02.

  	
  Certificates;
  Other Information

  	
  58

  
	
   

  	
   

  	
   

  
	
  6.03.

  	
  Notices

  	
  59

  
	
   

  	
   

  	
   

  
	
  6.04.

  	
  Payment
  of Obligations

  	
  59

  
	
   

  	
   

  	
   

  
	
  6.05.

  	
  Preservation
  of Existence, Etc

  	
  60

  
	
   

  	
   

  	
   

  
	
  6.06.

  	
  Maintenance
  of Properties

  	
  60

  
	
   

  	
   

  	
   

  
	
  6.07.

  	
  Maintenance
  of Insurance

  	
  60

  
	
   

  	
   

  	
   

  
	
  6.08.

  	
  Compliance
  with Laws

  	
  60

  
	
   

  	
   

  	
   

  
	
  6.09.

  	
  Books
  and Records

  	
  60

  
	
   

  	
   

  	
   

  
	
  6.10.

  	
  Inspection
  of Properties and Books, etc.

  	
  60

  
	
   

  	
   

  	
   

  
	
  6.11.

  	
  Use
  of Proceeds

  	
  61

  
	
   

  	
   

  	
   

  
	
  6.12.

  	
  Covenant
  to Guarantee Obligations and Give Security

  	
  61

  
	
   

  	
   

  	
   

  
	
  6.13.

  	
  Further
  Assurances

  	
  62

  
	
   

  	
   

  	
   

  
	
  6.14.

  	
  Regulated
  Subsidiaries; Approval

  	
  62

  
	
   

  	
   

  	
   

  
	
  6.15.

  	
  Mechanical
  Specialties

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  NEGATIVE COVENANTS

  	
  63

  
	
   

  	
   

  	
   

  
	
  7.01.

  	
  Liens

  	
  63

  
	
   

  	
   

  	
   

  
	
  7.02.

  	
  Investments

  	
  65

  
	
   

  	
   

  	
   

  
	
  7.03.

  	
  Indebtedness

  	
  67

  
	
   

  	
   

  	
   

  
	
  7.04.

  	
  Fundamental
  Changes

  	
  68

  
	
   

  	
   

  	
   

  
	
  7.05.

  	
  Dispositions

  	
  68

  
	
   

  	
   

  	
   

  
	
  7.06.

  	
  Restricted
  Payments

  	
  69

  
	
   

  	
   

  	
   

  
	
  7.07.

  	
  Change
  in Nature of Business

  	
  69

  
	
   

  	
   

  	
   

  
	
  7.08.

  	
  Transactions
  with Affiliates

  	
  70

  
	
   

  	
   

  	
   

  
	
  7.09.

  	
  Burdensome
  Agreements

  	
  70

  
	
   

  	
   

  	
   

  
	
  7.10.

  	
  Use
  of Proceeds

  	
  70

  
	
   

  	
   

  	
   

  
	
  7.11.

  	
  Financial
  Covenants

  	
  70

  
	
   

  	
   

  	
   

  
	
  7.12.

  	
  Capital
  Expenditures

  	
  70

  
	
   

  	
   

  	
   

  
	
  7.13.

  	
  Amendments
  of Organization Documents

  	
  71

  
	
   

  	
   

  	
   

  
	
  7.14.

  	
  Accounting
  Changes

  	
  71

  
	
   

  	
   

  	
   

  
	
  7.15.

  	
  Prepayments,
  Etc. of Indebtedness

  	
  71

  
				



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  7.16.

  	
  Sales
  and Leasebacks

  	
  71

  
	
   

  	
   

  	
   

  
	
  7.17.

  	
  Swap
  Contracts

  	
  71

  
	
   

  	
   

  	
   

  
	
  7.18.

  	
  Certain
  Agreements

  	
  71

  
	
   

  	
   

  	
   

  
	
  7.19.

  	
  Holdings

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
    EVENTS OF
  DEFAULT AND REMEDIES

  	
  72

  
	
   

  	
   

  	
   

  
	
  8.01.

  	
  Events
  of Default

  	
  72

  
	
   

  	
   

  	
   

  
	
  8.02.

  	
  Remedies
  Upon Event of Default

  	
  74

  
	
   

  	
   

  	
   

  
	
  8.03.

  	
  Application
  of Funds

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  ADMINISTRATIVE AGENT

  	
  75

  
	
   

  	
   

  	
   

  
	
  9.01.

  	
  Appointment
  and Authority

  	
  75

  
	
   

  	
   

  	
   

  
	
  9.02.

  	
  Rights
  as a Lender

  	
  76

  
	
   

  	
   

  	
   

  
	
  9.03.

  	
  Exculpatory
  Provisions

  	
  76

  
	
   

  	
   

  	
   

  
	
  9.04.

  	
  Reliance
  by Administrative Agent

  	
  77

  
	
   

  	
   

  	
   

  
	
  9.05.

  	
  Delegation
  of Duties

  	
  77

  
	
   

  	
   

  	
   

  
	
  9.06.

  	
  Resignation
  of Administrative Agent

  	
  77

  
	
   

  	
   

  	
   

  
	
  9.07.

  	
  Non-Reliance
  on Administrative Agent and Other Lenders

  	
  78

  
	
   

  	
   

  	
   

  
	
  9.08.

  	
  No
  Other Duties, Etc

  	
  78

  
	
   

  	
   

  	
   

  
	
  9.09.

  	
  Administrative
  Agent May File Proofs of Claim

  	
  78

  
	
   

  	
   

  	
   

  
	
  9.10.

  	
  Collateral
  and Guaranty Matters

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  CONTINUING GUARANTY

  	
  80

  
	
   

  	
   

  	
   

  
	
  10.01.

  	
  Guaranty

  	
  80

  
	
   

  	
   

  	
   

  
	
  10.02.

  	
  Rights
  of Lenders

  	
  80

  
	
   

  	
   

  	
   

  
	
  10.03.

  	
  Certain
  Waivers

  	
  80

  
	
   

  	
   

  	
   

  
	
  10.04.

  	
  Obligations
  Independent

  	
  81

  
	
   

  	
   

  	
   

  
	
  10.05.

  	
  Subrogation

  	
  81

  
	
   

  	
   

  	
   

  
	
  10.06.

  	
  Termination;
  Reinstatement

  	
  81

  
	
   

  	
   

  	
   

  
	
  10.07.

  	
  Subordination

  	
  81

  
	
   

  	
   

  	
   

  
	
  10.08.

  	
  Stay
  of Acceleration

  	
  82

  
	
   

  	
   

  	
   

  
	
  10.09.

  	
  Condition
  of Borrower

  	
  82

  
				



 


iv

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI.

  	
  MISCELLANEOUS

  	
  82

  
	
   

  	
   

  	
   

  
	
  11.01.

  	
  Amendments,
  Etc

  	
  82

  
	
   

  	
   

  	
   

  
	
  11.02.

  	
  Notices;
  Effectiveness; Electronic Communication

  	
  83

  
	
   

  	
   

  	
   

  
	
  11.03.

  	
  No
  Waiver; Cumulative Remedies

  	
  85

  
	
   

  	
   

  	
   

  
	
  11.04.

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  85

  
	
   

  	
   

  	
   

  
	
  11.05.

  	
  Payments
  Set Aside

  	
  87

  
	
   

  	
   

  	
   

  
	
  11.06.

  	
  Successors
  and Assigns

  	
  87

  
	
   

  	
   

  	
   

  
	
  11.07.

  	
  Treatment
  of Certain Information; Confidentiality

  	
  91

  
	
   

  	
   

  	
   

  
	
  11.08.

  	
  Right
  of Setoff

  	
  92

  
	
   

  	
   

  	
   

  
	
  11.09.

  	
  Interest
  Rate Limitation

  	
  92

  
	
   

  	
   

  	
   

  
	
  11.10.

  	
  Counterparts;
  Integration; Effectiveness

  	
  93

  
	
   

  	
   

  	
   

  
	
  11.11.

  	
  Survival
  of Representations and Warranties

  	
  93

  
	
   

  	
   

  	
   

  
	
  11.12.

  	
  Severability

  	
  93

  
	
   

  	
   

  	
   

  
	
  11.13.

  	
  Replacement
  of Lenders

  	
  93

  
	
   

  	
   

  	
   

  
	
  11.14.

  	
  Governing
  Law; Jurisdiction; Etc

  	
  94

  
	
   

  	
   

  	
   

  
	
  11.15.

  	
  Waiver
  of Jury Trial

  	
  95

  
	
   

  	
   

  	
   

  
	
  11.16.

  	
  No
  Advisory or Fiduciary Responsibility

  	
  95

  
	
   

  	
   

  	
   

  
	
  11.17.

  	
  USA
  PATRIOT Act Notice

  	
  96

  
	
   

  	
   

  	
   

  
	
  11.18.

  	
  Judgment
  Currency

  	
  96

  



 


v

















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  1.01

  	
  Existing
  Letters of Credit

  
	
  2.01

  	
  Commitments
  and Applicable Percentages

  
	
  4.01(a)(iii)

  	
  Landlord
  Waiver Locations

  
	
  4.01(a)(vi)

  	
  Local
  Counsel Opinions

  
	
  5.08(b)

  	
  Existing
  Liens

  
	
  5.09

  	
  Environmental
  Matters

  
	
  5.13

  	
  Subsidiaries;
  Other Equity Investments; Equity Interests in the Borrower

  
	
  6.12

  	
  Guarantors

  
	
  7.03

  	
  Existing
  Indebtedness

  
	
  7.05

  	
  Certain
  Dispositions

  
	
  7.09

  	
  Existing
  Burdensome Agreements

  
	
  11.02

  	
  Administrative
  Agent’s Office; Certain Addresses for Notices

  
	
  11.06

  	
  Processing
  and Recordation Fees

  



 


	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
   

  	
  Form of

  
	
   

  	
   

  
	
  A

  	
  Loan
  Notice

  
	
  B

  	
  Swing
  Line Loan Notice

  
	
  C-1

  	
  Term
  Loan Note

  
	
  C-2

  	
  Revolving
  Credit Note

  
	
  D

  	
  Compliance
  Certificate

  
	
  E

  	
  Assignment
  and Assumption

  
	
  F

  	
  Guaranty

  
	
  G

  	
  Security
  Agreement

  
	
  H

  	
  Pledge
  Agreement

  
	
  I

  	
  Collateral
  Assignment of Intercompany Notes

  



 

















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (“Agreement”) is entered into as of June
30, 2006, among INFRASOURCE
INCORPORATED, a Delaware corporation (the “Borrower”), INFRASOURCE
SERVICES, INC., a Delaware corporation (“Holdings”) each lender from
time to time party hereto (collectively, the “Lenders” and individually,
a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing
Line Lender and L/C Issuer.


 


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


 


In consideration of the mutual covenants and agreements herein
contained, the parties hereto, intending to be legally bound hereby, covenant
and agree as follows:


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


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


 


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


 


“Administrative Agent’s Office” means 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 to the Borrower and the Lenders.


 


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


 


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


 


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


 


“Agreement” means this Credit Agreement.


 


“Alternative Currency” means the Canadian dollar.


 


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


 


“Applicable Percentage” means (a) in respect of the Term Loan
Facility, with respect to any Term Loan Lender at any time, the percentage
(carried out to the ninth decimal place) of the Term Loan Facility represented
by the principal amount of such Term Loan Lender’s Term Loan at such time and
(b) in respect of the Revolving Credit Facility, with respect to any
Revolving Credit Lender at any time, the percentage (carried out to the ninth
decimal place) of the Revolving Credit Facility represented by such Revolving
Credit Lender’s Commitment at such time. If the commitment of each Revolving
Credit 


 

















 


Lender
to make Committed Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, or if the
Aggregate Commitments have expired, then the Applicable Percentage of each
Revolving Credit Lender in respect of the Revolving Credit Facility shall be
determined based on the Applicable Percentage of such Revolving Credit Lender
in respect of the Revolving Credit Facility most recently in effect, giving
effect to any subsequent assignments. The initial Applicable Percentage of each
Lender in respect of each Facility 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 the following percentages per annum,
based upon the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):


 


Applicable Rate


 


	
  Pricing

  Level

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  	
  Commitment

  Fee

  	
   

  	
  Eurodollar

  Rate

  Letters of

  Credit

  	
   

  	
  Base Rate

  	
   

  
	
  1

  	
   

  	
  33.00:1

  	
   

  	
  0.350

  	
  %

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  
	
  2

  	
   

  	
  <3.00:1 but 32.25:1

  	
   

  	
  0.300

  	
  %

  	
  1.75

  	
  %

  	
  0.75

  	
  %

  
	
  3

  	
   

  	
  <2.25:1 but 31.50:1

  	
   

  	
  0.250

  	
  %

  	
  1.50

  	
  %

  	
  0.50

  	
  %

  
	
  4

  	
   

  	
  <1.50:1 but 31.00:1

  	
   

  	
  0.200

  	
  %

  	
  1.25

  	
  %

  	
  0.25

  	
  %

  
	
  5

  	
   

  	
  <1.00:1

  	
   

  	
  0.175

  	
  %

  	
  1.00

  	
  %

  	
  0.00

  	
  %

  



 


Any increase or decrease in the Applicable Rate resulting from a change
in the Consolidated Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.02(a); provided, however,
that if a Compliance Certificate is not delivered when due in accordance with
such Section, then Pricing Level 1 shall apply as of the first Business Day
after the date on which such Compliance Certificate was required to have been
delivered until the first Business Day after such Compliance Certificate is
delivered. The Applicable Rate in effect from the Closing Date through the date
of receipt by the Administrative Agent of the First Compliance Certificate
after the Closing Date shall be determined based upon Pricing Level 4.


 


“Applicable Revolving Credit Percentage” means with respect to
any Revolving Credit Lender at any time, such Revolving Credit Lender’s
Applicable Percentage in respect of the Revolving Credit Facility at such time.


 


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


 


“Appropriate Lender” means, at any time, (a) with respect to the
Term Loan Facility, a Lender that holds a Term Loan at such time, (b) with
respect to the Revolving Credit Facility, a Revolving Credit 


 


2

















 


Lender
that has a Commitment with respect to the Revolving Credit Facility or a
Committed Loan at such time, (b) with respect to the Letter of Credit
Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have
been issued pursuant to Section 2.03(a), the Revolving Credit Lenders
and (c) with respect to the Swing Line Sublimit, (i) the Swing Line
Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section
2.04(a), the Revolving Credit Lenders.


 


“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.


 


“Arranger” means Banc of America Securities LLC, in its capacity
as sole lead arranger and sole book manager.


 


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


 


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


 


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


 


“Audited Financial Statements” means the audited consolidated
balance sheet of Holdings and its Subsidiaries for the fiscal year ended
December 31, 2005, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year of
Holdings and its Subsidiaries, including the notes thereto.


 


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


 


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


 


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


 


“Base Rate Loan” means a Committed Loan or a Term Loan that is a
Base Rate Loan.


 


“Bonded Contracts” has the meaning specified in Section
7.01(q).


 


3

















 


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


 


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


 


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


 


“Business Day” means any day other than a Saturday, Sunday or
other day on which commercial banks are authorized to close under the Laws of,
or are in fact closed in, the state where the Administrative Agent’s Office is
located and, if such day relates to any Eurodollar Rate Loan, means any such
day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.


 


“Capital Expenditures” means, with respect to any Person for any
period, any expenditure in respect of the purchase or other acquisition of any
fixed or capital asset (excluding normal replacements and maintenance which are
properly charged to current operations). Notwithstanding the foregoing, Capital
Expenditures shall not include (a) expenditures with net cash proceeds of
substantially concurrent sales or issuances of Equity Interests, (b) amounts
expended in connection with Permitted Acquisitions, and (c) equipment or other
property purchases simultaneously or substantially concurrently with the trade-in
of existing equipment or property owned by the Borrower and its Subsidiaries to
the extent of the trade-in credit with respect to the equipment or property
being trade-in.


 


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


 


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


 


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


 


(b)           dollar denominated (including eurodollar) time deposits with, or
certificates of deposit, repurchase agreements or bankers’ acceptances of, any
commercial bank that (i) is a Lender or (ii) has combined capital and
surplus of at least $500,000,000, in each case with maturities of not more than
one year from the date of
acquisition thereof;


 


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


 


(d)           Investments, classified in accordance with GAAP as current assets of
the Borrower or any of its Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940, as amended, having
portfolios of at least $500,000,000, and which are limited substantially to
Investments of the character, quality and maturity described in clauses (a),
(b) and (c) of this definition; and


 


(e)           Investments by Foreign Subsidiaries in short term Investments not
exceeding $2,000,000 in the aggregate at any time.


 


4

















 


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


 


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


 


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


 


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


 


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


 


(a)           any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934) becomes the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a person or group shall be deemed to have “beneficial ownership” of
all securities that such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time (such right,
an “option right”)), directly or indirectly, of 35% or more of the
equity securities of Holdings entitled to vote for members of the board of
directors or equivalent governing body of Holdings 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), but excluding from such
limitation (i) the Existing Investors, (ii) any Person or Persons who acquires
the Existing Investors’ equity securities in Holdings so long as such Person or
Persons do not become the “beneficial owner” of more than 50% of such
securities, and (iii) 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) ;


 


(b)           during any period of 12 consecutive months, a majority of the members
of the board of directors or other equivalent governing body of Holdings 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);


 


(c)           any Person or two or more Persons acting in concert shall have acquired
by contract or otherwise, or shall have entered into a contract or arrangement
that, upon consummation thereof, will result in its or their acquisition of the
power to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower, or control over the equity securities
of Holdings entitled to 


 


5

















 


vote
for members of the board of directors or equivalent governing body of Holdings
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)
representing 35% or more of the combined voting power of such securities, but
excluding from such limitation (i) the Existing Investors and (ii) any Person
or Persons who acquires the Existing Investors’ equity securities in Holdings
so long such Person or Persons shall not hold more than 50% of the combined
voting power of such securities; or


 


(d)           Holdings shall cease, directly or indirectly, to own and control
legally and beneficially all of the Equity Interests in the Borrower and,
except as provided in Sections 7.04 or 7.05, each of the
Guarantors.


 


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


 


“Code” means the Internal Revenue Code of 1986.


 


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


 


“Collateral Assignment of Intercompany Notes” means collectively
or individually as the context may require, the Collateral Assignments of
Intercompany Notes, dated as of the Closing Date, executed by the Loan Parties
party thereto and substantially in the form of Exhibit I, and each other
Collateral Assignment of Intercompany Notes at any time delivered by a Loan
Party.


 


“Collateral Documents” means, collectively, the Security
Agreement, the Pledge Agreement, the Collateral Assignment of Intercompany
Notes, each of the collateral assignments, security agreements, pledge
agreements or other similar agreements delivered to the Administrative Agent
pursuant to Section 6.12, and each of the other agreements, instruments
or documents that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.


 


“Commitment” means, as to each Revolving Credit Lender, its
obligation to (a) make Committed Loans to the Borrower pursuant to Section
2.01, (b) purchase participations in L/C Obligations, and (c) purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender’s name
on Schedule 2.01 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.


 


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


 


“Committed Loan” has the meaning specified in Section 2.01.


 


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


 


“Consolidated Adjusted EBITDA” means, for any period, for
Holdings and its Subsidiaries on a consolidated basis, an amount equal to
Consolidated Net Income for such period plus (a) the following to the
extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal, state, local
and foreign income taxes payable by Holdings and its Subsidiaries for such
period, (iii) depreciation and amortization expense, (iv) amortization of 


 


6

















 


intangibles
(including, but not limited to, goodwill and organization costs) and any
charges pursuant to SFAS 142 or 144), (v) any extraordinary, unusual or
non-recurring expenses or losses which (A) do not represent a cash item in such
period or any future period or (B) do not, in the aggregate, exceed $20,000,000
for the term of this Agreement (including, in the case of (A) or (B), whether
or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period and losses on sales of assets outside
of the ordinary course of business), (vi) expenses or fees incurred in
connection with any Permitted Acquisitions, (vii) SFAS 123R expenses or
payments or distributions in compliance with Section 7.06(f), and (viii)
offering costs related to the sale by Holdings of Equity Interests or the sale
by the Borrower of unsecured debt or Subordinated Debt pursuant to Section
7.03(j) and minus (b) the following to the extent included in
calculating such Consolidated Net Income: (i) Federal, state, local and foreign
income tax credits of Holdings and its Subsidiaries for such period, (ii)
interest income, and (iii) all extraordinary, unusual or non-recurring (it
being understood that income arising from contracts with customers entered into
in the ordinary course of business shall not be considered non-recurring for
purposes of this definition) income or gain increasing Consolidated Net Income
for such period (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, gains on
the sales of assets outside of the ordinary course of business).


 


For the purposes of calculating Consolidated Adjusted EBITDA for any
period of four consecutive fiscal quarters (each, a “Reference Period”),
(i) if at any time during such Reference Period Holdings or any Subsidiary
shall have made any Material Disposition, the Consolidated Adjusted EBITDA for
such Reference Period shall be reduced by an amount equal to the Consolidated
Adjusted EBITDA (if positive) attributable to the property that is the subject
of such Material Disposition for such Reference Period or increased by an
amount equal to the Consolidated Adjusted EBITDA (if negative) attributable
thereto for such Reference Period, in each case calculated as if such Material
Disposition occurred on the first day of such Reference Period and (ii) if
during such Reference Period Borrower or any Subsidiary shall have made a
Material Acquisition, Consolidated Adjusted EBITDA for such Reference Period
shall be calculated after giving pro  forma effect thereto
(including pro forma effect to any Permitted Cost-Savings) as if such Material
Acquisition occurred on the first day of such Reference Period.  As used
in this definition, “Material Acquisition” means any acquisition of
property or series of related acquisitions of property that (a) constitutes
assets comprising all or substantially all of an operating unit of a business
or constitutes all or substantially all of the Equity Interests of a Person and
(b) involves the payment of consideration by Holdings and its Subsidiaries in
excess of $5,000,000; and “Material Disposition” means any Disposition
of property or series of related Dispositions of property that yields gross
proceeds to Holdings or any of its Subsidiaries in excess of $5,000,000.


 


“Consolidated Adjusted EBITA” means, for any period,
Consolidated Adjusted EBITDA for such period minus depreciation expenses
for such period.


 


“Consolidated Funded Indebtedness” means, as of any date of
determination, for Holdings and its Subsidiaries on a consolidated basis, the
sum of (a) the outstanding principal amount of all obligations, whether current
or long-term, for borrowed money (including Obligations hereunder) and all
obligations evidenced by bonds (other than Surety Bonds), debentures, notes,
loan agreements or other similar instruments, (b) all purchase money
Indebtedness, (c) all direct obligations arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments, (d) all obligations in respect of the deferred
purchase price of property or services (other than trade accounts payable in
the ordinary course of business), (e) Attributable Indebtedness in respect of
capital leases and Synthetic Lease Obligations, (f) without duplication, all
Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) through (e) above of Persons other than Holdings or any Subsidiary,
and (g) all Indebtedness of the types referred to in clauses (a) through (f)
above of any partnership or joint venture (other than a joint venture that is
itself a corporation or limited 


 


7

















 


liability
company) in which Holdings or a Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to Holdings
or such Subsidiary, in each case, as determined in accordance with GAAP.
Notwithstanding the foregoing, Consolidated Funded Indebtedness shall not
include (i) an amount equal to the lesser of (A) the face amount of all outstanding
Letters of Credit with an expiry date (exclusive of automatic renewal
provisions) of less than or equal to 365 days and (B) $75,000,000, and (ii)
surety bonds (and Guarantee obligations relating thereto), other than those not
reimbursed by Holdings or a Subsidiary thereof within five (5) Business Days of
a drawing thereunder.


 


“Consolidated Interest Charges” means, for any period, total
cash interest expense (including that attributable to capital leases) of
Holdings and its Subsidiaries for such period with respect to all outstanding
Indebtedness of Holdings and its Subsidiaries (including all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers’ acceptance financing and net costs under Swap Contracts in respect of
interest rates to the extent such net costs, other than termination costs, are
allocable to such period in accordance with GAAP) minus total cash interest
income of Holdings and its Subsidiaries for such period, all as determined on a
consolidated basis in accordance with GAAP.


 


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


 


“Consolidated Net Income” means, for any period, for Holdings
and its Subsidiaries on a consolidated basis, the net income of the Holdings
and its Subsidiaries (excluding extraordinary gains and extraordinary losses)
for that period; provided that there shall be excluded (a) the income of
any Person accrued prior to the date it becomes a Subsidiary of Holdings or is
merged into or consolidated with Holdings or any of its Subsidiaries, (b) the
income of any Person (other than a Subsidiary of Holdings) in which Holdings or
any of its Subsidiaries has an ownership interest, except to the extent that
any such income is actually received by Holdings or such Subsidiary in the form
of dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of Holdings to the extent that (i) such undistributed earnings
exceed 5% of the net income of Holdings and its Subsidiaries and (ii) the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Law applicable to such Subsidiary.


 


“Consolidated Senior Funded Indebtedness” means, as of any date
of determination, for Holdings and its Subsidiaries on a consolidated basis,
Consolidated Funded Indebtedness minus the aggregate outstanding
principal amount of Subordinated Debt and unsecured senior debt incurred by the
Borrower pursuant to Section 7.03(j).


 


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


 


“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.


 


8

















 


“Control” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. “Controlling” and “Controlled” have meanings
correlative thereto.


 


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


 


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


 


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


 


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


 


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


 


“Disposition” or “Dispose” means the sale, transfer,
license, lease or other disposition (including any sale and leaseback
transaction) of any property by any Person (or the granting of any option or
other right to do any of the foregoing), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith.


 


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


 


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


 


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


 


“Effective Date” has the meaning specified in Section 2.14(b).


 


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


 


9

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Eurodollar Rate” means, for any Interest Period with respect to
a Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated
by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, for Dollar deposits (for delivery on the first day 


 


10

















 


of
such Interest Period) with a term equivalent to such Interest Period. If such
rate is not available at such time for any reason, then the “Eurodollar Rate”
for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery
on the first day of such Interest Period in Same Day Funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be offered by
Bank of America’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the commencement of such Interest Period.


 


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


 


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


 


“Excluded Taxes” means, with respect to the Administrative
Agent, any Lender, the L/C Issuer or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable Lending Office is located, (b)
any branch profits taxes imposed by the United States or any similar tax
imposed by any other jurisdiction in which the Borrower is located and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 11.13), any withholding tax that is imposed
on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party hereto (or designates a new Lending Office) or is attributable
to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with Section 3.01(e), except to the extent that
such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new Lending Office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to Section
3.01(a). Notwithstanding anything to the contrary contained in this
definition, “Excluded Taxes” shall not include any withholding tax imposed at
any time on payments made by or on behalf of a Foreign Subsidiary to any Lender
hereunder or under any other Loan Document so long as such Lender shall have
complied with the last paragraph of Section 3.01(e).


 


“Existing Credit Agreement” means that certain Amended and
Restated Credit Agreement, as amended, dated as of May 12, 2004, as amended,
among Holdings, the Borrower, Barclays Bank PLC, as agent, and a syndicate of
lenders.


 


“Existing Investors” means GFI Energy Ventures, LLC and Oaktree
Capital Management, LLC.


 


“Existing Letters of Credit” means the letters of credit issued
by LaSalle Bank National Association under the Existing Credit Agreement and
listed on Schedule 1.01.


 


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


 


“Federal Funds Rate” means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so published on
such next


 


11

















 


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 May 11, 2006,
among Holdings, the Borrower, the Administrative Agent and the Arranger.


 


“Foreign L/C Exposure” means, at any time, the sum of the Dollar
Equivalent amounts of (a) 100% of the aggregate undrawn amount of all
outstanding Letters of Credit issued in an Alternative Currency at such time, plus
(b) the aggregate amount of all drawings under Letters of Credit issued in an
Alternative Currency that have not yet been reimbursed by or on behalf of any
Loan Party at such time.


 


“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
business.


 


“GAAP” means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or
such other principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.


 


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


 


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


 


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


 


12

















 


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); provided, however, that the term Guarantee
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business. 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.


 


“Guarantors” means, collectively, Holdings, the Subsidiaries of
Holdings listed on Schedule 6.12 and each other Subsidiary of Holdings
(other than the Borrower) that shall be required to execute and deliver a
guaranty or guaranty supplement pursuant to Section 6.12; provided
that, no Regulated Subsidiary shall be a Guarantor.


 


“Guaranty” means, collectively, the Guaranty made by Holdings
under Article X in favor of the Secured Parties and the Guaranty made by
the other Guarantors in favor of the Secured Parties, substantially in the form
of Exhibit F, together with each other guaranty and guaranty supplement
delivered pursuant to Section 6.12.


 


“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.


 


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


 


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


 


“Immaterial Subsidiary” means, at any time, any Subsidiary of
Holdings (other than the Borrower) then having net assets with a fair market
value of less than $5,000,000 and gross assets with a fair market value of less
than $20,000,000; provided, that if the aggregate fair market value of
(a) the net assets of all Subsidiaries of Holdings (other than the Borrower)
that would otherwise constitute Immaterial Subsidiaries shall exceed
$20,000,000 or (b) the gross assets of all Subsidiaries of Holdings (other than
the Borrower) that would otherwise constitute Immaterial Subsidiaries shall
exceed $50,000,000, only those such Subsidiaries as shall not then have net
assets the aggregate fair market value of which is greater than $20,000,000 or
gross assets the aggregate fair market value of which is greater than
$50,000,000 and as shall be designated in writing by Holdings to the
Administrative Agent as Immaterial Subsidiaries shall be deemed to constitute
Immaterial Subsidiaries.


 


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


 


(a)           all obligations of such Person for borrowed money and all obligations of
such Person evidenced by bonds (other than Surety Bonds), debentures, notes,
loan agreements or other similar instruments;


 


(b)           (i) the maximum amount of all direct or contingent obligations of such
Person arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties and similar instruments and (ii) the
maximum amount of obligations due and payable as a result of a default arising
under surety bonds;


 


13

















 


(c)           net obligations of such Person under any Swap Contract;


 


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


 


(e)           indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether
or not such indebtedness shall have been assumed by such Person or is limited
in recourse;


 


(f)            capital leases and Synthetic Lease
Obligations;


 


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


 


(h)           all Guarantees of such Person in respect of any of the foregoing.


 


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


 


“Indemnified Taxes” means Taxes other than Excluded Taxes.


 


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


 


“Information” has the meaning specified in Section 11.07.


 


“Intercreditor Agreements” means those certain Intercreditor
Agreements from time to time entered into among the Administrative Agent, the applicable
Loan Party and the customer of such Loan Party providing surety bond(s) to such
Loan Party, each in form and substance reasonably satisfactory to the
Administrative Agent.


 


“Interest Payment Date” means, (a) as to any Loan other than a
Base Rate Loan, the last day of each Interest Period applicable to such Loan
and the Maturity Date; 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 or a Swing
Line Loan, the last Business Day of each March, June, September and December
and the Maturity Date (with Swing Line Loans being deemed made under the
Revolving Credit Facility for purposes of this definition). .


 


“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:


 


14

















 


(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;


 


(i)            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


 


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


 


“Internal Control Event” means a material weakness in, or fraud
that involves management or other employees who have a significant role in,
Holding’s internal controls over financial reporting, in each case as described
in the Securities Laws.


 


“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) the purchase or other acquisition (in
one transaction or a series of transactions) of assets of another Person that
constitute a business unit or all or a substantial part of the business, of
such Person. For purposes of covenant compliance, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment.


 


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


 


“IRS” means the United States Internal Revenue Service.


 


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


 


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


 


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


 


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


 


15

















 


“L/C Borrowing” means an extension of credit resulting from a
drawing under any Letter of Credit which has not been reimbursed on the date
when made or refinanced as a Committed Borrowing. All L/C Borrowings shall be
denominated in Dollars.


 


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


 


“L/C Issuer” means Bank of America in its capacity as issuer of
Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder
and, solely with respect to the Existing Letters of Credit, LaSalle Bank
National Association.


 


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


 


“Lender” has the meaning specified in the introductory paragraph
hereto and, as the context requires, includes the Swing Line Lender.


 


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


 


“Letter of Credit” means any standby letter of credit issued
hereunder and shall include the Existing Letters of Credit. Letters of Credit
may be issued in Dollars or in an Alternative Currency.


 


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


 


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


 


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


 


“Letter of Credit Sublimit” means an amount equal to
$100,000,000, up to the Alternative Currency Equivalent of $2,000,000 of which
may be denominated in an Alternative Currency pursuant to Section 2.03(a)(i).
The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.


 


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


 


16

















 


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


 


“Loan Documents” means, collectively, (a) this Agreement,
(b) the Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the Fee
Letter, (f) each Issuer Document, (g) each Secured Hedge Agreement, (h) each
Secured Cash Management Agreement, and (i) each Intercreditor Agreement; provided
that for purposes of the definition of “Material Adverse Effect”, Articles
IV through IX and Section 11.01, “Loan Documents” shall not
include Secured Hedge Agreements or Secured Cash Management Agreements.


 


“Loan Notice” means a notice of (a) a Committed Borrowing, (b) a
conversion of Loans from one Type to the other, or (c) a continuation of
Eurodollar Rate Loans, 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 operations, business, properties,
liabilities (actual or contingent), financial condition or prospects of the
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of
the rights and remedies of the Administrative Agent or any Lender under any
Loan Document, or of the ability of any Loan Party to perform its obligations
under any Loan Document to which it is a party; or (c) a material adverse
effect upon the legality, validity, binding effect, in each case, as related to
a Loan Party, or enforceability against any Loan Party of any Loan Document to
which it is a party.


 


“Maturity Date” means June 30, 2012 provided, however,
that if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.


 


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


 


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


 


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


 


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


 


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


 


17

















 


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 (i) with respect to the Term Loan,
Committed Loans and Swing Line Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments
or repayments of the Term Loans, Committed Loans and Swing Line Loans, as the
case may be, occurring on such date; and (ii) with respect to any L/C
Obligations on any date, the Dollar Equivalent amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.


 


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


 


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


 


“PBGC” means the Pension Benefit Guaranty Corporation.


 


“PCAOB” means the Public Company Accounting Oversight Board.


 


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


 


“Permitted Cost-Savings” means, in connection with any Permitted
Acquisition or Investment, those demonstrable cost-savings reasonably
anticipated by the Borrower as of any date of determination to be achieved in
connection with such Permitted Acquisition or Investment, as the case may be, for
the 12-month period following the consummation of such Permitted Acquisition or
Investment, which cost-savings shall be estimated by the Borrower on a good
faith basis as of each date of determination prior to the inclusion of the
applicable cost-savings in the calculation of Permitted Cost-Savings (which may
include, without limitation, those permitted under Regulation S-X of the
Exchange Act) and which are reasonably approved by the Administrative Agent; it
is understood and agreed that, for the avoidance of duplication, no anticipated
cost-savings shall be included in the calculation of Permitted Cost-Savings for
any period to the extent such anticipated cost-savings are otherwise reflected
in Consolidated Adjusted 


 


18

















 


EBITDA
for such period by virtue of the achievement of actual cost-savings that were
part of the cost-savings anticipated to be achieved.


 


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


 


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


 


“Platform” has the meaning specified in Section 6.02.


 


“Pledge Agreement” means collectively or individually as the
context may require, the Pledge Agreements, dated as of the Closing Date,
executed by the Loan Parties party thereto and substantially in the form of Exhibit
H, and each other Pledge Agreement at any time delivered by a Loan Party.


 


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


 


“Registered Public Accounting Firm” has the meaning specified in
the Securities Laws and shall be independent of Holdings as prescribed by the
Securities Laws.


 


“Regulated Subsidiary” means any Subsidiary of Holdings (other
than the Borrower) so long as such Subsidiary is subject to regulation by a Governmental
Authority and for which the incurrence of Indebtedness (including Guarantees)
would be prohibited or require the consent or approval of any Governmental
Authority (and such consent or approval has not been obtained), as set forth in
any rule or regulation of such Governmental Authority.


 


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


 


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


 


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


 


“Required Lenders” means, as of any date of determination,
Lenders holding more than 50% of the sum of the (a) Total Outstandings (with
the aggregate amount of each Revolving Credit Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed
“held” by such Revolving Credit Lender for purposes of this definition) and (b)
aggregate unused Commitments; provided that the unused Commitment of,
and the portion of the Total Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.


 


“Required Revolving Lenders” means, as of any date of
determination, Revolving Credit Lenders holding more than 50% of the sum of the
(a) Total Revolving Credit Outstandings (with the aggregate amount of each
Revolving Credit Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Revolving Credit
Lender for purposes of this definition) and (b) aggregate unused
Commitments; provided that the unused Commitment of, and the 


 


19

















 


portion
of the Total Revolving Credit Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Revolving Lenders.


 


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


 


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


 


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


 


“Revolving Credit Facility” means, at any time, the aggregate
amount of the Revolving Credit Lenders’ Commitments at such time.


 


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


 


“Revolving Credit Note” means a promissory note made by the
Borrower in favor of a Revolving Credit Lender evidencing Committed Loans or
Swing Line Loans, as the case may be, made by such Revolving Credit Lender,
substantially in the form of Exhibit C-2.


 


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


 


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


 


“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.


 


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


 


“Secured Cash Management Agreement” means any Cash Management
Agreement that is entered into by and between the Borrower and any Cash
Management Bank.


 


20

















 


“Secured Hedge Agreement” means any Swap Contract permitted
under Article VI or VII that is entered into by and between the
Borrower and any Hedge Bank.


 


“Secured Parties” means, collectively, the Administrative Agent,
the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, each
co-agent or sub-agent appointed by the Administrative Agent from time to time
pursuant to Section 9.05, and the other Persons the Obligations
owing to which are or are purported to be secured by the Collateral under the
terms of the Collateral Documents.


 


“Securities Laws” means the Securities Act of 1933, the
Securities Exchange Act of 1934, Sarbanes-Oxley and the applicable accounting
and auditing principles, rules, standards and practices promulgated, approved
or incorporated by the SEC or the PCAOB.


 


“Security Agreement” means collectively or individually as the
context may require, the Security Agreements, dated as of the Closing Date,
executed by the Loan Parties party thereto and substantially in the form of Exhibit
G, and each other Security Agreement at any time delivered by a Loan Party.


 


“SPC” has the meaning specified in Section 11.06(h).


 


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


 


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


 


“Subordinated Debt” means any and all loans or other extensions
of credit from time to time made to any Loan Party subordinated to the
Obligations in a manner and form reasonably satisfactory to the Administrative
Agent, as to right and time of payment and as to any other rights and remedies
thereunder.


 


“Subsidiary” of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more 


 


21

















 


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 Holdings.


 


“Sunesys Pledge” means the pledge, by the Borrower to the
Administrative Agent, of the Equity Interests of Sunesys, Inc. pursuant to the
applicable Pledge Agreement.


 


“Surety” has the meaning specified in Section 7.01(q).


 


“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.


 


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


 


“Swing Line” means the revolving credit facility made available
by the Swing Line Lender pursuant to Section 2.04.


 


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


 


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


 


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


 


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


 


“Swing Line Sublimit” means an amount equal to the lesser of (a)
$10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.


 


“Synthetic Lease Obligation” means the monetary obligation of a
Person under any lease of goods or other property, whether real or personal,
which is treated by Holdings as an operating lease under GAAP and as a loan or
financing for U.S. income tax purposes.


 


22

















 


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


 


“Term Loan Borrowing” means a borrowing consisting of
simultaneous Term Loans of the same Type and, in the case of Eurodollar Rate
Loans, having the same Interest Period made by each of the Term Loan Lenders
pursuant to Section 2.15.


 


“Term Loan Facility” means, at any time, the aggregate principal
amount of the Term Loans of all Term Loan Lenders outstanding at such time.


 


“Term Loan Lender” means any Lender that holds Term Loans at
such time.


 


“Term Loan” means an advance made by any Lender under the Term
Loan Facility, if any, pursuant to Section 2.15.


 


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


 


“Threshold Amount” means $10,000,000.


 


“Treasury Regulations” means the income tax regulations
promulgated under the Code.


 


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


 


“Total Revolving Credit Outstandings” means the aggregate
Outstanding Amount of all Committed Loans, Swing Line Loans and L/C
Obligations.


 


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


 


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


 


“Unfunded Pension Liability” means the amount, if any, by which
the accumulated benefits for any Pension Plan as of the close of the most
recent plan year, determined using actuarial assumptions at the time consistent
with those prescribed by Financial Accounting Standard No. 87, exceeds the fair
market value of such assets allocable to such liabilities.


 


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


 


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


 


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


 


23

















 


(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 tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.


 


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


 


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


 


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


 


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


 


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


 


24

















 


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


 


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


 


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


 


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


 


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


 


Wherever in this Agreement in connection with the issuance, amendment
or extension of a Letter of Credit, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Letter of Credit is denominated
in an Alternative Currency, such amount shall be the relevant Alternative
Currency Equivalent of such Dollar amount (rounded to the nearest unit of such
Alternative Currency, with 0.5 of a unit being rounded upward), as determined
by the L/C Issuer.


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01.       Committed Loans. Subject to the terms and conditions set
forth herein, each Revolving Credit Lender severally agrees to make loans (each
such loan, a “Committed Loan”) to the Borrower from time to time, on any
Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Committed Borrowing, (i) the
Total Revolving Credit Outstandings shall not exceed the Aggregate Commitments,
and (ii) the aggregate Outstanding Amount of the Committed Loans of any
Revolving Credit Lender, plus such Lender’s Applicable Revolving Credit
Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Commitment. Within the
limits of each Revolving Credit Lender’s Commitment, and subject to the other
terms and conditions hereof, the Borrower may borrow under this Section 2.01,
prepay under Section 2.05, and reborrow under 


 


25

















 


this
Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate
Loans, as further provided herein.


 


2.02.       Borrowings, Conversions and
Continuations of Loans.


 


(a)           Each Borrowing, each conversion of Term Loans or Committed Loans from
one Type to the other, and each continuation of Eurodollar Rate Loans shall be
made upon the Borrower’s irrevocable notice to the Administrative Agent, which
may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base
Rate Loans 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 $1,000,000 or a whole multiple of
$500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c),
each Borrowing of or conversion to Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 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 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 such 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 under
the applicable Facility of the applicable Term Loans or Committed Loans, and if
no timely notice of a conversion or continuation is provided by the Borrower,
the Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans described in the preceding subsection.
In the case of a Borrowing, each Appropriate Lender shall make the amount of
its Loan available to the Administrative Agent in Same Day Funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day
specified in the applicable Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Credit Extension, Section 4.01), the Administrative Agent shall
make all funds so received available to the Borrower in like funds as received
by the Administrative Agent either by (i) crediting the account of the Borrower
on the books of Bank of America with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided
to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date the Loan Notice with respect to a
Committed Borrowing is given by the Borrower, there are L/C Borrowings
outstanding, then the proceeds of such Committed Borrowing, first, shall
be applied to the payment in full of any such L/C Borrowings, and second,
shall be made available to the Borrower as provided above.


 


(c)           Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence 


 


26

















 


of
a Default, no Loans may be requested as, converted to or continued as
Eurodollar Rate Loans without the consent of the Required Lenders.


 


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


 


2.03.       Letters of Credit.


 


(a)           The Letter of Credit Commitment.


 


(i)            Subject to the terms and conditions set forth
herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the
Revolving Credit Lenders set forth in this Section 2.03, (1) from time
to time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit for the account of
the Borrower or its Subsidiaries, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to
honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders
severally agree to participate in Letters of Credit issued for the account of
the Borrower or its Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any Letter
of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the
Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed
Loans of any Revolving Credit Lender, plus such Lender’s Applicable
Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit. Subject to the other terms and conditions set forth herein, the
Borrower may request, for its own account or the account of a Subsidiary, the
issuance of such Letters of Credit in an Alternative Currency; provided,
however, that, in addition to the other conditions to the issuance of Letters
of Credit set forth in this Section 2.03(a)(i), after giving effect to
such request, the Dollar Equivalent of the Foreign LC Exposure shall not exceed
$2,000,000 at any one time. Such Letters of Credit issued in an Alternative
Currency hereunder shall constitute utilization of the Aggregate Commitments in
the amount of the Dollar Equivalent of such Letter of Credit. Each request by
the Borrower for the issuance or amendment of a Letter of Credit shall be deemed
to be a representation by the Borrower that the L/C Credit Extension so
requested complies with the conditions set forth in the provisos to the
preceding two sentences. Within the foregoing limits, and subject to the terms
and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall
be fully revolving, and accordingly the Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have expired
or that have been drawn upon and reimbursed. All Existing Letters of Credit
shall be deemed to have been issued pursuant hereto, and from and after the
Closing Date shall be subject to and governed by the terms and conditions
hereof; provided that, on or before the date that is ninety (90) days after the
Closing Date, the Borrower shall cause the Existing Letters of Credit to be
cancelled and, if necessary, re-issued as Letters of Credit hereunder.


 


27

















 


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


 


(A)          subject to Section 2.03(b)(iii), the expiry
date of such requested Letter of Credit would occur more than twelve months
after the date of issuance or last extension, unless the Required Revolving
Lenders have approved such expiry date; or


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(F)           a default of any Lender’s obligations to fund
under Section 2.03(c) exists or any Lender is at such time a Defaulting
Lender hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Borrower or such Lender to eliminate the L/C Issuer’s
risk with respect to such Lender (it being understood that the L/C Issuer would
consider the Borrower providing Cash Collateral to the Administrative Agent,
for the benefit of the L/C Issuer, to secure the Defaulting Lender’s pro rata
share of the Letter of Credit a satisfactory arrangement); or


 


(G)           the L/C Issuer does not as of the issuance
date of such requested Letter of Credit issue Letters of Credit in the
requested currency.


 


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


 


28

















 


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


 


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


 


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


 


(i)            Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the Borrower delivered to the
L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by a Responsible Officer
of the Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and the
L/C Issuer may agree in a particular instance in their sole discretion) prior
to the proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount and currency thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters as
the L/C Issuer may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify
in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to
be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may require. Additionally, the Borrower shall furnish
to the L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.


 


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


 


29

















 


each Letter of Credit, each Revolving Credit Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to the
product of such Lender’s Applicable Revolving Credit Percentage times
the amount of such Letter of Credit.


 


(iii)          If the Borrower so requests in any applicable
Letter of Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic extension
provisions (each, an “Auto-Extension Letter of Credit”); provided
that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than a day (the “Non-Extension
Notice Date”) in each such twelve-month period to be agreed upon at the
time such Letter of Credit is issued. Unless otherwise directed by the L/C
Issuer, the Borrower shall not be required to make a specific request to the
L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has
been issued, the Revolving Credit Lenders shall be deemed to have authorized
(but may not require) the L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has determined that it would
not be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the Required
Revolving Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Revolving Credit Lender or the Borrower that one or
more of the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing the L/C Issuer not to permit such
extension.


 


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


 


(c)           Drawings and Reimbursements; Funding of
Participations.


 


(i)            Upon receipt from the beneficiary of any
Letter of Credit of any notice of a drawing under such Letter of Credit, the
L/C Issuer shall notify the Borrower and the Administrative Agent thereof. In
the case of a Letter of Credit denominated in an Alternative Currency, the
Borrower shall reimburse the L/C Issuer in such Alternative Currency, unless
the L/C Issuer (at its option) shall have specified in such notice that it will
require reimbursement in Dollars. In the case of any such reimbursement in
Dollars of a drawing under a Letter of Credit denominated in an Alternative
Currency, the L/C Issuer shall notify the Borrower of the Dollar Equivalent of
the amount of the drawing promptly following the determination thereof. Not
later than 11:00 a.m. on the date of any payment by the L/C Issuer under a
Letter of Credit to be reimbursed in Dollars (in the event that the Borrower
has been notified prior to 10:00 a.m. on such day and otherwise not later than
11:00 a.m. on the next Business Day), or the Applicable Time on the date of any
payment by the L/C Issuer under a Letter of Credit to be reimbursed in an
Alternative Currency (each such date, an “Honor Date”), the Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing and in the applicable currency (i.e.,
Dollars or Canadian dollars). If the Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each
Revolving 


 


30

















 


Credit Lender of the Honor Date, the amount of the unreimbursed drawing
(expressed in Dollars in the amount of the Dollar Equivalent thereof in the
case of a Letter of Credit denominated in an Alternative Currency) (the “Unreimbursed
Amount”), and the amount of such Revolving Credit Lender’s Applicable
Revolving Credit Percentage thereof. In such event, the Borrower shall be
deemed to have requested a Committed Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Loan Notice). Any notice
given by the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


(ii)           Each Revolving Credit Lender shall upon any
notice pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer, in Dollars, at the
Administrative Agent’s Office in an amount equal to its Applicable Revolving
Credit Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Revolving Credit
Lender that so makes funds available shall be deemed to have made a Base Rate
Loan to the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the L/C Issuer in Dollars.


 


(iii)          With respect to any Unreimbursed Amount that
is not fully refinanced by a Committed Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate. In such event, each
Revolving Credit Lender’s payment to the Administrative Agent for the account
of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.03.


 


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


 


(v)           Each Revolving Credit Lender’s obligation to
make Committed Loans or L/C Advances to reimburse the L/C Issuer for amounts
drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against the L/C Issuer, the Borrower or
any other Person for any reason whatsoever; (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Revolving
Credit Lender’s obligation to make Committed Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 4.02
(other than delivery by the Borrower of a Loan Notice). No such making of an
L/C Advance shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.


 


31

















 


(vi)          If any Revolving Credit Lender fails to make
available to the Administrative Agent for the account of the L/C Issuer any
amount required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection
with the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Committed Loan
included in the relevant Committed Borrowing or L/C Advance in respect of the
relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer
submitted to any Revolving Credit Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.


 


(d)           Repayment of Participations.


 


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


 


(ii)           If any payment received by the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i)
is required to be returned under any of the circumstances described in Section
11.05 (including pursuant to any settlement entered into by the L/C Issuer
in its discretion), each Revolving Credit Lender shall pay to the Administrative
Agent for the account of the L/C Issuer its Applicable Revolving Credit
Percentage thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the applicable Overnight Rate from time to
time in effect. The obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this Agreement.


 


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


 


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


 


(ii)           the existence of any claim, counterclaim,
setoff, defense or other right that the Borrower or any Subsidiary may have at
any time against any beneficiary or any transferee of such Letter of Credit (or
any Person for whom any such beneficiary or any such transferee may be acting),
the L/C Issuer or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;


 


32

















 


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


 


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


 


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


 


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


 


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


 


(f)            Role of L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Revolving Credit Lenders or the Required
Revolving Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Issuer Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to
its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower’s pursuing
such rights and remedies as it may have against the beneficiary or transferee
at law or under any other agreement. None of the L/C Issuer, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable or responsible for
any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C Issuer, and the
L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which were caused by the L/C Issuer’s willful
misconduct or gross negligence or the L/C Issuer’s willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the foregoing, the
L/C Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation, 


 


33

















 


regardless
of any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.


 


(g)           Cash Collateral. Upon the request of the Administrative
Agent, (i) if the L/C Issuer has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing,
or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for
any reason remains outstanding, the Borrower shall, in each case, immediately
Cash Collateralize the then Outstanding Amount of all L/C Obligations. Sections
2.05 and 8.02(c) set forth certain additional requirements to
deliver Cash Collateral hereunder. For purposes of this Section 2.03, Section
2.05 and Section 8.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance satisfactory to the Administrative Agent
and the L/C Issuer (which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings. The Borrower hereby
grants to the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of
America. If at any time the Administrative Agent determines that any funds held
as Cash Collateral are subject to any right or claim of any Person other than
the Administrative Agent or that the total amount of such funds is less than
the aggregate Outstanding Amount of all L/C Obligations, the Borrower will,
forthwith upon demand by the Administrative Agent, pay to the Administrative
Agent, as additional funds to be deposited as Cash Collateral, an amount equal
to the excess of (x) such aggregate Outstanding Amount over (y) the
total amount of funds, if any, then held as Cash Collateral that the Administrative
Agent determines to be free and clear of any such right and claim. Upon the
drawing of any Letter of Credit for which funds are on deposit as Cash
Collateral, such funds shall be applied, to the extent permitted under
applicable Laws, to reimburse the L/C Issuer.


 


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


 


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


 


(j)            Fronting Fee and Documentary and Processing
Charges Payable to L/C Issuer.
The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter 


 


34

















 


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


 


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


 


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


 


2.04.       Swing Line Loans.


 


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


 


(b)           Borrowing Procedures. Each Swing Line Borrowing shall be made
upon the Borrower’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not 


 


35

















 


later
than 1:00 p.m. on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum of $500,000 and (ii) the
requested borrowing date, which shall be a Business Day. Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower. Promptly after receipt by
the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Swing Line Loan Notice
and, if not, the Swing Line Lender will notify the Administrative Agent (by
telephone or in writing) of the contents thereof. Unless the Swing Line Lender
has received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Revolving Credit Lender) prior to 2:00 p.m. on
the date of the proposed Swing Line Borrowing (A) directing the Swing Line
Lender not to make such Swing Line Loan as a result of the limitations set
forth in the proviso to the first sentence of Section 2.04(a), or (B)
that one or more of the applicable conditions specified in Article IV is
not then satisfied, then, subject to the terms and conditions hereof, the Swing
Line Lender will, not later than 3:00 p.m. on the borrowing date specified in
such Swing Line Loan Notice, make the amount of its Swing Line Loan available
to the Borrower at its office by crediting the account of the Borrower on the
books of the Swing Line Lender in Same Day Funds.


 


(c)           Refinancing of Swing Line Loans.


 


(i)            The Swing Line Lender at any time in its sole
and absolute discretion may request, on behalf of the Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf), that
each Revolving Credit Lender make a Base Rate Loan in an amount equal to such
Lender’s Applicable Revolving Credit Percentage of the amount of Swing Line
Loans then outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to the
minimum and multiples specified therein for the principal amount of Base Rate
Loans, but subject to the unutilized portion of the Aggregate Commitments and
the conditions set forth in Section 4.02. The Swing Line Lender shall
furnish the Borrower with a copy of the applicable Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Revolving Credit
Lender shall make an amount equal to its Applicable Revolving Credit Percentage
of the amount specified in such Loan Notice available to the Administrative
Agent in Same Day Funds for the account of the Swing Line Lender at the
Administrative Agent’s Office not later than 1:00 p.m. on the day specified in
such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each
Revolving Credit Lender that so makes funds available shall be deemed to have
made a Base Rate Loan to the Borrower in such amount. The Administrative Agent
shall remit the funds so received to the Swing Line Lender.


 


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


 


(iii)          If any Revolving Credit Lender fails to make
available to the Administrative Agent for the account of the Swing Line Lender
any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such
Lender (acting through 


 


36

















 


the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum
equal to the applicable Overnight Rate from time to time in effect, plus any
administrative, processing or similar fees customarily charged by the Swing
Line Lender in connection with the foregoing. If such Lender pays such amount
(with interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Committed Loan included in the relevant Committed Borrowing or funded
participation in the relevant Swing Line Loan, as the case may be. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (iii)
shall be conclusive absent manifest error.


 


(iv)          Each Revolving Credit Lender’s obligation to
make Committed Loans or to purchase and fund risk participations in Swing Line
Loans pursuant to this Section 2.04(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Revolving Credit Lender’s
obligation to make Committed Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02. No such funding of
risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided herein.


 


(d)           Repayment of Participations.


 


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


 


(ii)           If any payment received by the Swing Line
Lender in respect of principal or interest on any Swing Line Loan is required
to be returned by the Swing Line Lender under any of the circumstances
described in Section 11.05 (including pursuant to any settlement entered
into by the Swing Line Lender in its discretion), each Revolving Credit Lender
shall pay to the Swing Line Lender its Applicable Revolving Credit Percentage
thereof on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned, at a rate per annum
equal to the applicable Overnight Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations
and the termination of this Agreement.


 


(e)           Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible
for invoicing the Borrower for interest on the Swing Line Loans. Until each
Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant
to this Section 2.04 to refinance such Revolving Credit Lender’s
Applicable Revolving Credit Percentage of any Swing Line Loan, interest in
respect of such Applicable Revolving Credit Percentage shall be solely for the
account of the Swing Line Lender.


 


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


 


37

















 


2.05.       Prepayments.


 


(a)           The Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (A) three Business Days
prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof,
or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans
are to be prepaid, the Interest Period(s) of such Loans. The Administrative
Agent will promptly notify each Lender of its receipt of each such notice, and
of the amount of such Lender’s ratable portion of such prepayment (based on
such Lender’s Applicable Percentage of such prepayment in respect of the
relevant Facility). 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 in respect of each of the relevant
Facilities.


 


(b)           The Borrower may, upon notice to the Swing Line Lender (with a copy to
the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of
$100,000. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.


 


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


 


2.06.       Termination or Reduction of
Commitments. The Borrower
may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or from time to time permanently reduce the Aggregate Commitments;
provided that (i) any such notice shall be received by the Administrative Agent
not later than 11:00 a.m. three Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount
of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the
Borrower shall not terminate or reduce the Aggregate Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total
Revolving Credit Outstandings would exceed the Aggregate Commitments, and (iv)
if, after giving effect to any reduction of the Aggregate Commitments, the
Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Commitments, such Sublimit shall be automatically reduced by the
amount of such excess. The Administrative Agent will promptly notify the
Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Applicable Percentage. All fees 


 


38

















 


accrued
until the effective date of any termination of the Aggregate Commitments shall
be paid on the effective date of such termination.


 


2.07.       Repayment of Loans.


 


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


 


(b)           The Borrower shall repay each Swing Line Loan on the earlier to occur
of (i) the date ten Business Days after such Loan is made and (ii) the Maturity
Date.


 


(c)           Currency Matters.


 


(i)            Dollars are the currency of account and
payment for each and every sum at any time due from the Loan Parties hereunder.
No payment to the Administrative Agent, any Lender or the L/C Issuer (whether
under any judgment or court order or otherwise) shall discharge the obligation
or liability in respect of which it was made unless and until the
Administrative Agent or such Lender shall have received payment in full of the
Dollar Equivalent of the amount of such obligation or liability, and to the
extent that the amount of any such payment shall, on actual conversion into
Dollars, fall short of such obligation or liability actual or contingent
expressed in Dollars, the Borrower shall indemnify and hold harmless the
Administrative Agent, the L/C Issuer or such Lender, as the case may be, with
respect to the amount of the shortfall.


 


(ii)           If, on any Revaluation Date, the Dollar
Equivalent of the aggregate outstanding amount of all Loans and the L/C
Obligations exceeds the Aggregate Commitments, then the Borrower shall repay or
prepay the Loans in accordance with this Agreement in an aggregate principal
amount such that, after giving effect thereto, the aggregate outstanding amount
(expressed in Dollars) of all Loans plus the L/C Obligations no longer
exceeds the Aggregate Commitments.


 


(iii)          If on any Revaluation Date, the Dollar
Equivalent of the Foreign LC Exposure exceeds $2,000,000, then the Borrower
shall immediately upon demand provide cash collateral to the Administrative
Agent in the amount of such excess.


 


2.08.       Interest.


 


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


 


(b)           (i)            If any amount of principal of any Loan is not
paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, 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), 


 


39

















 


whether at stated maturity, by acceleration or otherwise, then upon the
request of the Required Lenders, such amount shall thereafter bear interest at
a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.


 


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


 


(iv)          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.


 


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


 


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


 


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


 


(b)           Other Fees. (i) The Borrower shall pay to the Arranger 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 not be refundable for any reason whatsoever.


 


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


 


(c)           For the purposes of the Interest Act (Canada), whenever a fee rate
hereunder is calculated on the basis of a year (the “deemed year”) that
contains fewer days than the actual number of days in the calendar year of
calculation, such fee rate shall be expressed as a yearly rate by multiplying
such fee rate by the actual number of days in the calendar year of calculation
and dividing it by the number of days in the deemed year.


 


2.10.       Computation of Interest and
Fees. All computations of
interest for Base Rate Loans when the Base Rate is determined by Bank of
America’s “prime rate” 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


 


40

















 


accrue
on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it
is made shall, subject to Section 2.12(a), bear interest for one day.
Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest
error.


 


2.11.       Evidence of Debt.


 


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


 


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


 


2.12.       Payments Generally;
Administrative Agent’s Clawback.


 


(a)           General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent’s
Office in Dollars and in Same Day Funds not later than 2:30 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each
Lender its Applicable Percentage in respect of the relevant Facility (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 2:30 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue. If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as
the case may be.


 


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


 


41

















 


Borrowing
of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable 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 Same Day Funds with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the Overnight
Rate, plus any administrative, processing or similar fees customarily charged
by the Administrative Agent in connection with the foregoing, and (B) in the
case of a payment to be made by the Borrower, the interest rate applicable to
Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative
Agent shall promptly remit to the Borrower the amount of such interest paid by
the Borrower for such period. If such Lender pays its share of the applicable
Borrowing to the Administrative Agent, then the amount so paid shall 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 or the L/C Issuer hereunder that the Borrower will not
make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Appropriate Lenders or the L/C Issuer, as
the case may be, the amount due. In such event, if the Borrower has not in fact
made such payment, then each of the Appropriate Lenders or the L/C Issuer, as
the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or the L/C Issuer,
in Same Day Funds with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the Overnight Rate.


 


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


 


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


 


(d)           Obligations of Lenders Several. The obligations of the Lenders hereunder to
make Loans, to fund participations in Letters of Credit and Swing Line 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).


 


42

















 


(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.


 


(f)            Insufficient Funds. If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts
of principal, L/C Borrowings, interest and fees then due hereunder, such funds
shall be applied (i) first, toward payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second,
toward payment of principal and L/C Borrowings then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and L/C Borrowings then due to such parties.


 


2.13.       Sharing of Payments by
Lenders. If any Lender
shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of (a) Obligations in respect of any the Facilities due and
payable to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender at such time to (ii)
the aggregate amount of the Obligations in respect of the Facilities due and
payable to all Lenders hereunder and under the other Loan Documents at such
time) of payments on account of the Obligations in respect of the Facilities
due and payable to all Lenders hereunder and under the other Loan Documents at
such time obtained by all the Lenders at such time or (b) Obligations in
respect of any of the Facilities owing (but not due and payable) to such Lender
hereunder and under the other Loan Documents at such time in excess of its
ratable share (according to the proportion of (i) the amount of such
Obligations owing (but not due and payable) to such Lender at such time to (ii)
the aggregate amount of the Obligations in respect of the Facilities owing (but
not due and payable) to all Lenders hereunder and under the other Loan Parties
at such time) of payment on account of the Obligations in respect of the
Facilities owing (but not due and payable) to all Lenders hereunder and under
the other Loan Documents at such time obtained by all of the Lenders at such
time 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 and subparticipations in L/C Obligations and Swing
Line Loans of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of Obligations in
respect of the Facilities then due and payable to the Lenders or owing (but not
due and payable) to the Lenders, as the case may be, 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 or subparticipations in L/C Obligations or Swing Line Loans
to any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).


 


Each of Holdings and the Borrower consent 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 


 


43

















 


participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.


 


2.14.       Increase in Commitments.


 


(a)           Request for Increase or a Term Loan. Provided there exists no Default, upon
written notice to the Administrative Agent and the Lenders, the Borrower may
from time to time, request an increase in the Aggregate Commitments or a Term
Loan; provided that (i) the aggregate amount of all such increases
together with the principal amount of such Term Loans shall not exceed
$125,000,000, (ii) any such request for an increase or a Term Loan shall be in
a minimum amount of $25,000,000, (iii) the Borrower may make a maximum of five
(5) such requests and (iv) in the case of a Term Loan, such Term Loan (A) shall
be pari passu with the Committed Loans, (B) shall mature on or after the
Maturity Date, (C) shall be subject to customary mandatory prepayment
provisions and (D) shall otherwise be on terms and conditions satisfactory to
the Administrative Agent (such consent, in the event that such Term Loan is on
then market terms, not to be unreasonably withheld). In the event of a request
of a Term Loan, the parties hereto acknowledge and agree that this Agreement
shall be amended to incorporate the Term Loan and related provisions and such
amendment shall be subject to the prior written consent of the Administrative
Agent and the Required Lenders (such consent not to be unreasonably withheld or
delayed so long as such Term Loan satisfies the provisions of the preceding
sentence). At the time of sending such notice, the Borrower (in consultation
with the Administrative Agent) shall specify the time period within which each
Lender is requested to respond (which shall in no event be less than ten
Business Days from the date of delivery of such notice to the Lenders).


 


(b)           Lender Elections to Increase or Participate
in a Term Loan. Each Lender
shall notify the Administrative Agent in writing within such time period
whether or not it agrees to increase its Commitment or participate in the Term
Loan and, if so, at what percentage of such requested increase or Term Loan.
Any Lender not responding within such time period shall be deemed to have
declined to increase its Commitment or participate in the Term Loan.


 


(c)           Notification by Administrative Agent;
Additional Lenders. The
Administrative Agent shall notify the Borrower and each Lender of the Lenders’
responses to each request made hereunder. In the event that the Lenders do not
agree to increase their Commitments or participate in the Term Loan in an
amount equal to the amount requested by the Borrower, to achieve the full
amount of a requested increase or Term Loan and subject to the approval of the
Administrative Agent and the L/C Issuer (which approvals shall not be
unreasonably withheld), the Borrower may also invite additional Eligible
Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.


 


(d)           Effective Date and Allocations. If the Aggregate Commitments are increased
in accordance with this Section or a Term Loan is advanced, the Administrative
Agent and the Borrower shall determine the effective date (the “Effective
Date”) and the final allocation of such increase or Term Loan. The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
final allocation of such increase or Term Loan and the Effective Date.


 


(e)           Conditions to Effectiveness of Increase or
Term Loan. As a condition
precedent to such increase or Term Loan, (i) the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the Effective
Date (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 or Term Loan, and (B) in
the case of Holdings and the Borrower, certifying that, before and after giving
effect to such increase or Term Loan, (1) the 


 


44

















 


representations
and warranties contained in Article V and the other Loan Documents are
true and correct on and as of the Effective Date, except to the extent that
such representations and warranties specifically refer to an earlier date, in
which case they are true and correct as of such earlier date, and except that
for purposes of this Section 2.14, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01, and (2) no Default exists, (ii) counsel
for Holdings and the Borrower shall have provided to the Administrative Agent a
supplemental opinion in form and substance reasonably satisfactory to the
Administrative Agent and (iii) Holdings, the Borrower, the Lenders and any such
additional Eligible Assignees shall otherwise have executed and delivered such
other instruments and documents as the Administrative Agent shall have
reasonably requested in connection with such increase or Term Loan. The
Borrower shall prepay any Committed Loans outstanding on the Effective Date
(and pay any additional amounts required pursuant to Section 3.05) to
the extent necessary to keep the outstanding Committed Loans ratable with any
revised Applicable Revolving Credit Percentages arising from any nonratable
increase in the Commitments under this Section.


 


(f)            Conflicting Provisions. This Section shall supersede any provisions
in Section 2.13 or 11.01 to the contrary.


 


2.15.       The Term Loan Borrowings. If the Borrower requests a Term Loan pursuant
to Section 2.14, subject to the terms and conditions set forth herein,
each Term Loan Lender severally agrees to make a Term Loan on the applicable
Effective Date not to exceed such Term Loan Lender’s Applicable Percentage of
the Term Loan requested by the Borrower. Amounts borrowed under this Section
2.15 and repaid or prepaid may not be reborrowed. Term Loans may be Base
Rate Loans or Eurodollar Rate Loans, as provided herein.


 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01.       Taxes.


 


(a)           Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrower or Holdings hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, provided that if the Borrower
shall be required by applicable law to deduct any Indemnified Taxes (including
any Other Taxes) from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, any Lender or the L/C Issuer, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower or Holdings, as the case may be, shall
make such deductions and (iii) the Borrower or Holdings, as the case may be,
shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.


 


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


 


(c)           Indemnification by the Borrower and Holdings. The Borrower and Holdings shall, jointly
and severally, indemnify the Administrative Agent, each Lender and the L/C
Issuer, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this 


 


45

















 


Section)
paid by the Administrative Agent, such Lender or the L/C Issuer, as the case
may be, and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error.


 


(d)           Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower or Holdings, as the case may be,
to a Governmental Authority, the Borrower or Holdings, as the case may be,
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.


 


(e)           Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower or Holdings, as the case may be, is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with
respect to payments hereunder or under any other Loan Document shall deliver to
the Borrower and Holdings (with a copy to the Administrative Agent), at the
time or times prescribed by applicable law or reasonably requested by the
Borrower, Holdings or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower, Holdings, or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower, Holdings or the
Administrative Agent as will enable the Borrower, Holdings or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements. Each such Foreign
Lender shall also deliver to the Borrower (with a copy to the Administrative
Agent) such further documentation requested by the Borrower on or before the
date that any documentation previously delivered to the Borrower hereunder
shall expire or become obsolete and after the occurrence of any event requiring
a change in such previously delivered documentation.


 


Without limiting the generality of the foregoing, in
the event that the Borrower or Holdings, as the case may be, is resident for
tax purposes in the United States, any Foreign Lender shall deliver to the
Borrower, Holdings 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, Holdings or the Administrative
Agent, but only if such Foreign Lender is legally entitled to do so), whichever
of the following is applicable:


 


(i)            duly completed copies of Internal Revenue
Service Form W-8BEN certifying that such Foreign Lender is not a United States
Person and claiming eligibility for benefits of an income tax treaty to which
the United States is a party,


 


(ii)           duly completed copies of Internal Revenue
Service Form W-8ECI certifying that such Foreign Lender is not a United States
Person and claiming that payments hereunder are income effectively connected
with the conduct of a trade or business in the United States,


 


(iii)          in the case of a Foreign Lender claiming the
benefits of the exemption for portfolio interest under section 881(c) of the
Code, (x) a certificate to the effect that such Foreign Lender is not (A) a
“bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 


 


46

















 


percent shareholder” of the Borrower or Holdings within the meaning of
section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation”
described in section 881(c)(3)(C) of the Code and (y) duly completed copies of
Internal Revenue Service Form W-8BEN certifying that such Foreign Lender is not
a United States Person, or


 


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


 


(f)            Treatment of Certain Refunds. If the Administrative Agent, any Lender or
the L/C Issuer determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or Holdings, as the case may be, or with respect to which the Borrower
or Holdings, as the case may be, has paid additional amounts pursuant to this
Section, it shall pay to the Borrower or Holdings, as the case may be, an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower or Holdings under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund), provided
that the Borrower or Holdings, as the case may be, upon the request of the
Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent,
such Lender or the L/C Issuer in the event the Administrative Agent, such
Lender or the L/C Issuer is required to repay such refund to such Governmental
Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the
Borrower, Holdings 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, 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) adequate and reasonable
means do not exist for determining the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan, or
(b) the Eurodollar Rate for any requested Interest Period with respect to
a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar 


 


47

















 


Rate
Loans shall be suspended until the Administrative Agent (upon the instruction
of the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Committed Borrowing of Base Rate
Loans in the amount specified therein.


 


3.04.       Increased Costs; Reserves on
Eurodollar Rate Loans.


 


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


 


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


 


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


 


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


 


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


 


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


 


48

















 


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


 


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


 


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


 


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


 


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


 


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


 


(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;


 


(d)           any failure by any Borrower to make payment of any drawing under any
Letter of Credit (or interest due thereon) denominated in an Alternative
Currency on its scheduled due date or any payment thereof in a different
currency;


 


including any foreign exchange losses 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 or from the performance of any foreign exchange contract. 


 


49

















 


The
Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.


 


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


 


3.06.       Mitigation Obligations;
Replacement of Lenders.


 


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


 


(b)           Replacement of Lenders. If any Lender requests compensation under Section
3.04, if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section
3.01, or if the Lender determines it is unlawful to make, maintain or fund
Eurodollar Loans pursuant to Section 3.02, the Borrower may replace such
Lender in accordance with Section 11.13.


 


3.07.       Survival. All of the Borrower’s obligations under Sections
3.01, 3.04 and 3.05 shall survive termination of the
Aggregate Commitments and repayment of all other Obligations hereunder.


 


ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


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


 


(a)           The Administrative Agent’s receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date) and
each in form and substance satisfactory to the Administrative Agent and each of
the Lenders:


 


(i)            executed counterparts of this Agreement and
the other Loan Documents, sufficient in number for distribution to the
Administrative Agent, each Lender and the Borrower;


 


(ii)           a Note executed by the Borrower in favor of
each Lender requesting a Note;


 


50

















 


(iii)          executed counterparts of each Collateral
Document, together with:


 


(A)          certificates representing the Equity
Interests pledged thereunder accompanied by undated stock powers executed in
blank and instruments evidencing any debt pledged thereunder indorsed in blank,


 


(B)           proper Financing Statements in form
appropriate for filing under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may deem necessary or desirable in order to
perfect the Liens created under the Collateral Documents, covering the
Collateral described in the Collateral Documents,


 


(C)           completed requests for information, dated on
or before the date of the initial Credit Extension, listing all effective
financing statements filed in any jurisdiction that name any Loan Party as
debtor, together with copies of such other financing statements,


 


(D)          evidence of the completion of all other
actions, recordings and filings of or with respect to the Collateral Documents
that the Administrative Agent may deem necessary or desirable in order to
perfect the Liens created thereby,


 


(E)           evidence that all other action that the
Administrative Agent may deem necessary or desirable in order to perfect the
Liens created under the Security Agreement has been taken (including receipt of
duly executed payoff letters, UCC-3 termination statements, bailees’ waiver and
consent agreements and a landlord waiver for the locations listed on Schedule
4.01(a)(iii));


 


(iv)          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;


 


(v)           such documents and certifications as the
Administrative Agent may reasonably require to evidence that each Loan Party is
duly organized or formed, and that each Loan Party is validly existing, in good
standing and qualified to engage in business in each jurisdiction where its ownership,
lease or operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect;


 


(vi)          a favorable opinion of Ballard Spahr Andrews
& Ingersoll, LLP, counsel to the Loan Parties, and each local counsel
listed on Schedule 4.01(a)(vi), each addressed to the Administrative
Agent and each Lender, as to the matters concerning the Loan Parties and the
Loan Documents as the Required Lenders may reasonably request;


 


(vii)         a certificate of a Responsible Officer of
each Loan Party either (A) attaching copies of all consents, licenses and
approvals required in connection with the execution, delivery and performance
by such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and approvals
shall be in full force and effect, or (B) stating that no such consents,
licenses or approvals are so required;


 


51

















 


(viii)        a certificate signed by a Responsible Officer
of the Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, (B) that there has been no
event or circumstance since the date of the Audited Financial Statements that
has had or could be reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect; and (C) that, after giving effect to the
transactions contemplated hereby, each Loan Party is Solvent;


 


(ix)           evidence that all insurance required to be
maintained pursuant to the Loan Documents has been obtained and is in effect,
together with the certificates of insurance, naming the Administrative Agent,
on behalf of the Lenders, as an additional insured or loss payee, as the case
may be, under all insurance policies maintained with respect to the assets and
properties of the Loan Parties that constitutes Collateral;


 


(x)            evidence that the Existing Credit Agreement
has been or concurrently with the Closing Date is being terminated and all
Liens securing obligations under the Existing Credit Agreement have been or
concurrently with the Closing Date are being released


 


(xi)           Intercreditor Agreement with Arch Insurance
Company, duly executed by the appropriate parties; and


 


(xii)          such other assurances, certificates,
documents, consents or opinions as the Administrative Agent, the L/C Issuer,
the Swing Line Lender or the Required Lenders reasonably may require.


 


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


 


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


 


(d)           The Closing Date shall have occurred on or before July 31, 2006.


 


Without limiting the generality of the provisions of Section 9.04,
for purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.


 


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


 


(a)           The representations and warranties of Holdings and the Borrower
contained in Article V or any other Loan Document, or which are
contained in any document furnished pursuant to the terms of this Agreement,
shall be true and correct in all material respects (except for representations
and warranties that are already qualified as to materiality, which shall
instead be true and correct) on and as of the date of 


 


52

















 


such
Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section
4.02, the representations and warranties contained in subsections (a) and
(b) of Section 5.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01.


 


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


 


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


 


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


 


Each Request for Credit Extension (other than a Loan Notice requesting
only a conversion of Loans to the other Type or a continuation of Eurodollar
Rate Loans) submitted by the Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.02(a) and (b)
have been satisfied on and as of the date of the applicable Credit Extension.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


Each of Holdings and the Borrower represents and warrants to the
Administrative Agent and the Lenders that:


 


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


 


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


 


5.03.       Governmental Authorization;
Other Consents. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required
in connection with (a) the execution, delivery or performance by, or 


 


53

















 


enforcement
against, any Loan Party of this Agreement or any other Loan Document,
(b) the grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents other than the required approval, if any, of the New
Jersey Board of Public Utilities, with respect to the pledge of any Regulated
Subsidiary’s stock pursuant to the Pledge Agreement, (c) the perfection or
maintenance of the Liens created under the Collateral Documents (including the
first priority nature thereof) or (d) the exercise by the Administrative
Agent or any Lender of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents other than the
required approval, if any, of (i) the applicable Governmental Authorities with
respect to the transfer of Equity Interests of any Regulated Subsidiary
pursuant to the terms and conditions of the Pledge Agreement and (ii) the
United States Federal Communications Commission with respect to the transfer of
Equity Interests of M.J. Electric, Inc. pursuant to the terms and conditions of
the Pledge Agreement.


 


5.04.       Binding Effect. This Agreement has been, and each other
Loan Document, when delivered hereunder, will have been, duly executed and
delivered by each Loan Party that is party thereto. This Agreement constitutes,
and each other Loan Document when so delivered will constitute, a legal, valid
and binding obligation of such Loan Party, enforceable against each Loan Party
that is party thereto in accordance with its terms, except (a) enforceability
may be limited by applicable Debtor Relief Laws and by general equitable
principals (whether enforcement is sought by proceedings in equity or at law)
and (b) with respect to the Sunesys Pledge, with respect to the matters set forth
in Section 8.01(j).


 


5.05.       Financial Statements; No
Material Adverse Effect; No Internal Control Event.


 


(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 and (ii) fairly present in all material
respects the financial condition of Holdings 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.


 


(b)           The unaudited consolidated balance sheet of Holdings and its
Subsidiaries dated March 31, 2006, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for the fiscal
quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present in all material respects the
financial condition of Holdings and its Subsidiaries as of the date thereof and
their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal
year-end audit adjustments.


 


(c)           Since the 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.


 


(d)           To the knowledge of Holdings and the Borrower, as of the date of this
Agreement, no Internal Control Event exists or has occurred since the date of
the Audited Financial Statements that has resulted in or could reasonably be
expected to result in a misstatement in any material respect, in any financial
information delivered to the Administrative Agent or the Lenders, of the
assets, liabilities, financial condition or results of operations of Holdings
and its Subsidiaries on a consolidated basis.


 


5.06.       Litigation. There are no actions, suits, proceedings,
claims or disputes pending or, to the knowledge of Holdings and the Borrower,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against Holdings 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 


 


54

















 


Document,
or any of the transactions contemplated hereby, or (b) except as specifically
disclosed in Holdings’ SEC filings on the date of this Agreement, either
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect, and there has been no adverse change that could reasonably
be expected to have a Material Adverse Effect in the status, or financial
effect on any Loan Party or any Subsidiary thereof, of the matters described in
Holdings’ SEC filings on the date of this Agreement.


 


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


 


5.08.       Ownership of Property; Liens. (a) Each Loan Party and each of 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.


 


(b)           Schedule 5.08(b) sets forth a complete and accurate list of
all Liens on the property or assets of each Loan Party and each of its
Subsidiaries, showing as of the date hereof the lienholder thereof, the
principal amount of the obligations secured thereby and the property or assets
of such Loan Party or such Subsidiary subject thereto. The property of each
Loan Party and each of its Subsidiaries is subject to no Liens, other than
Liens set forth on Schedule 5.08(b), and as otherwise permitted by Section
7.01.


 


5.09.       Environmental Compliance. Except as specifically disclosed in Schedule 5.09,
(a) Holdings and its subsidiaries are in material compliance with all
Environmental Laws unless the failure to comply could not reasonably be
expected to have a Material Adverse Effect and (b) no claims under the
Environmental Laws are pending or, to Holdings’ or the Borrower’s knowledge,
threatened against Holdings or its Subsidiaries that could, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.


 


5.10.       Insurance. The properties of Holdings and its
Subsidiaries are insured with financially sound and reputable insurance
companies, 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 Holdings or the applicable Subsidiary
operates.


 


5.11.       Taxes. Holdings and its Subsidiaries have filed
all Federal, state and other material tax returns and reports required to be
filed, and have paid all Federal, state and other material taxes, assessments,
fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except (a) 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 and (b) those which could not reasonably be expected to have a Material
Adverse Effect.


 


5.12.       ERISA Compliance.


 


(a)           Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state Laws. Each Plan that
is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of Holdings and the Borrower, nothing has occurred which is
reasonably expected prevent, or cause the loss of, such 


 


55

















 


qualification.
Each of Holdings, the Borrower and each ERISA Affiliate has made all required
contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.


 


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


 


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


 


5.13.       Subsidiaries; Equity
Interests. Neither Holdings,
the Borrower nor any Guarantor has any Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by a Loan Party in the amounts
specified on Part (a) of Schedule 5.13 free and clear of all Liens
(other than Liens created by the Collateral Documents). All Immaterial
Subsidiaries as of the Closing Date are listed on Part (b) of Schedule 5.13.


 


5.14.       Margin Regulations;
Investment Company Act.


 


(a)           The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.


 


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


 


5.15.       Disclosure. No statement or information contained in
this Agreement, any other Loan Document, the confidential information
memorandum dated May, 2006 or any other document, certificate or statement
furnished by the Borrower pursuant to the terms of this Agreement to the
Administrative Agent or the Lenders, when taken as a whole, contained as of the
date of such statement, information, document or certificate was furnished, any
untrue statement of a material fact or omitted a material fact necessary to
make the statements contained herein or therein, in light of the circumstances
under which they were made, not misleading.


 


5.16.       Compliance with Laws. Each Loan Party and each Subsidiary thereof
is in compliance in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently 


 


56

















 


conducted
or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.


 


5.17.       Intellectual Property;
Licenses, Etc. Holdings and
its Subsidiaries own, or possess the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights (collectively, “IP Rights”)
that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person unless the failure to own
or possess such right to use or such conflict with the rights of others could
not reasonably be expected to have a Material Adverse Effect.


 


5.18.       Solvency. The Borrower is Solvent. As of the date of
this Agreement, each Loan Party (other than the Borrower) is, individually and
together with its Subsidiaries on a consolidated basis, Solvent.


 


5.19.       Collateral Documents. The provisions of the Collateral Documents
are effective to create in favor of the Administrative Agent for the benefit of
the Secured Parties a legal, valid and enforceable first priority Lien (subject
to Liens permitted by Section 7.01) on all right, title and interest of
the respective Loan Parties in the Collateral described therein, expect that,
with respect to the Sunesys Pledge, with respect to the matters set forth in Section
8.01(l). Except for filings completed prior to the Closing Date and as
contemplated hereby and by the Collateral Documents and the filing of periodic
continuation statements relating to any financing statements in accordance with
Uniform Commercial Code as in effect in the applicable jurisdiction, no filing
or other action will be necessary to perfect or protect such Liens.


 


5.20.       Guaranty. As of the Closing Date, each Domestic
Subsidiary of Holdings (other than the Regulated Subsidiaries and the Borrower)
has guaranteed the Obligations pursuant to the Guaranty.


 


5.21.       Regulated Subsidiaries. As of the Closing Date, no Subsidiary of
Holdings (other than Sunesys, Inc. and Sunesys of Virginia, Inc.) is a
Regulated Subsidiary.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


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


 


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


 


(a)           as soon as available, but in any event within 105 days after the end of
each fiscal year of Holdings, a consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by (i) a report and opinion of a
Registered Public Accounting Firm of nationally recognized standing, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards and applicable Securities Laws 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 or with respect to the absence of any
material misstatement and (ii) an opinion of such Registered Public Accounting
Firm independently assessing the 


 


57

















 


Borrower’s
internal controls over financial reporting in accordance with Item 308 of SEC
Regulation S-K, PCAOB Auditing Standard No. 2, and Section 404 of
Sarbanes-Oxley; and


 


(b)           as soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of Holdings a
consolidated balance sheet of Holdings and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal quarter and for
the portion of Holding’s fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail, certified by the chief executive officer, chief
financial officer, treasurer or controller of Holdings as fairly presenting in
all material respects the financial condition, results of operations,
shareholders’ equity and cash flows of Holdings and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.


 


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


 


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


 


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


 


(b)           promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of any Loan Party, and copies of all annual, regular, periodic and
special reports and registration statements (excluding any registration
statements on Form S-8) which any 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;


 


(c)           promptly after the furnishing thereof and only to the extent not
otherwise disclosed in Holdings’ SEC filings, copies of any statement or report
furnished to any holder of the Subordinated Debt or unsecured senior debt
permitted under Section 7.03(j) and not otherwise required to be
furnished to the Lenders pursuant to Section 6.01 or any other clause of
this Section 6.02;


 


(d)           within 45 days after the end of each of the first three fiscal quarters
of each fiscal year of Holdings and within 105
days after the end of the fourth fiscal quarter of each fiscal year of
Holdings, a narrative discussion and analysis of the financial condition and
results of operations of Holdings and its Subsidiaries for such fiscal quarter
and for the period from the beginning of the fiscal year in which such fiscal
quarter is included to the end of such fiscal quarter; and


 


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


 


Documents required to be delivered pursuant to Section 6.01(a)
or (b) or Section 6.02(b) (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 


 


58

















 


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 6.02(a)
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.


 


Each of Holdings and the Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Arranger will make available to the Lenders and
the L/C Issuer materials and/or information provided by or on behalf of the
Loan Parties hereunder (collectively, “Borrower Materials”) by posting
the Borrower Materials on IntraLinks or another similar electronic system (the
“Platform”) and (b) certain of the Lenders may be “public-side” Lenders
(i.e., Lenders that do not wish
to receive material non-public information with respect to any Loan Party or
its securities) (each, a “Public Lender”). Each of Holdings and the
Borrower hereby agrees that so long as such Loan Party is the issuer of any
outstanding debt or equity securities that are registered or issued pursuant to
a private offering or is actively contemplating issuing any such securities (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 Loan Parties shall be deemed to have
authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to any Loan Party 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 “Public Investor;” and (z) the Administrative Agent and the
Arranger shall be entitled to treat any Borrower Materials that are not marked
“PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor.”


 


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


 


(a)           of the occurrence of any Default; and


 


(b)           of the occurrence of any ERISA Event.


 


Each notice pursuant to this Section 6.03 shall be accompanied
by a statement of a Responsible Officer of the Borrower setting forth details
of the occurrence referred to therein and stating what action the Borrower has
taken and proposes to take with respect thereto.


 


6.04.       Payment of Obligations. Pay and discharge as the same shall become
due and payable, (a) all material tax liabilities, assessments and governmental
charges or levies upon it or its properties or 


 


59

















 


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 Holdings or such Subsidiary and (b) all lawful claims which, if
unpaid, would by law become a Lien upon its property.


 


6.05.       Preservation of Existence,
Etc. (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.04 or 7.05; (b) take all reasonable action
to maintain all rights, privileges, permits, licenses and franchises necessary
or desirable in the normal conduct of its business, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could reasonably
be expected to have a Material Adverse Effect.


 


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


 


6.07.       Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons and providing for not less than 30 days’ prior notice to the
Administrative Agent of termination, lapse or cancellation of such insurance.


 


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


 


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


 


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


 


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6.11.       Use of Proceeds. Use the proceeds of the Credit Extensions
for general corporate purposes not in contravention of any Law or of any Loan
Document.


 


6.12.       Covenant to Guarantee
Obligations and Give Security.
(a) Upon (x) the formation or acquisition of any new direct or indirect
Subsidiary (other than any CFC or a Subsidiary that is held directly or
indirectly by a CFC) by any Loan Party or (y) the receipt by a Subsidiary of
the necessary approvals and/or consents pursuant to Section 6.14, then,
in each case, the Borrower shall, at the Borrower’s expense:


 


(i)            within 30 days after such formation,
acquisition or receipt of such approvals and/or consents cause such Subsidiary
(other than a Regulated Subsidiary), and cause each direct and indirect parent
of such Subsidiary (if it has not already done so), to duly execute and deliver
to the Administrative Agent a guaranty or guaranty supplement, in form and
substance satisfactory to the Administrative Agent, guaranteeing the other Loan
Parties’ obligations under the Loan Documents,


 


(ii)           within 30 days after such formation,
acquisition or receipt of such approvals and/or consents, furnish to the
Administrative Agent a description of the personal properties of such
Subsidiary, in detail satisfactory to the Administrative Agent,


 


(iii)          within 30 days after such formation,
acquisition or receipt of such approvals and/or consents, cause such Subsidiary
and each direct and indirect parent of such Subsidiary (if it has not already
done so) to duly execute and deliver to the Administrative Agent a Security
Agreement and other security and pledge agreements, as specified by and in form
and substance satisfactory to the Administrative Agent (including delivery of
all pledged Equity Interests in and of such Subsidiary, and other instruments
of the type specified in Section 4.01(a)(iii)), securing payment of all
the Obligations of such Subsidiary or such parent, as the case may be, under
the Loan Documents and constituting Liens on all such personal properties; provided
that a Regulated Subsidiary shall not be required to execute a Security
Agreement or otherwise grant a security interest to the Administrative Agent;


 


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


 


(v)           within 30 days after such formation,
acquisition or receipt of such approvals and/or consents (other than with
respect to the formation or acquisition of an Immaterial Subsidiary), deliver
to the Administrative Agent, upon the request of the Administrative Agent in
its sole discretion, a signed copy of a favorable opinion, addressed to the
Administrative Agent and the other Secured Parties, of counsel for the Loan
Parties acceptable to the Administrative Agent as to the matters contained in
clauses (i), (iii) and (iv) above, and as to such other matters as the Administrative
Agent may reasonably request.


 


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(b)           Upon the formation or acquisition by any Loan Party of any new direct
or indirect Subsidiary that is a CFC or of a Subsidiary that is held directly
or indirectly by a CFC, the Borrower shall, at the Borrower’s expense, (i)
within 30 days after such formation or acquisition, cause such Loan Party to
pledge to the Administrative Agent all of such Subsidiary’s non-voting Equity
Interests and 66% of the total combined voting Equity Interests of such
Subsidiaries that are held directly or indirectly by such Loan Party pursuant
to a pledge agreement in form and substance satisfactory to the Administrative
Agent; and (ii) take such other actions and deliver, or caused to be delivered,
such other documents and opinions as required by Section 6.12(iv) and (v)
in connection with such pledge.


 


6.13.       Further Assurances. Promptly upon request by the Administrative
Agent, or any Lender through the Administrative Agent, (a) correct any material
defect or error that may be discovered in any Loan Document (which correction
shall also be executed by the Administrative Agent and the Lenders) or in the
execution, acknowledgment, filing or recordation thereof, and (b) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and
other instruments as the Administrative Agent, or any Lender through the
Administrative Agent, may reasonably require from time to time in order to (i)
carry out more effectively the purposes of the Loan Documents, (ii) to the
fullest extent permitted by applicable law, subject any Loan Party’s or any of
its Subsidiaries’ properties, assets, rights or interests which constitute
Collateral to the Liens now or hereafter intended to be covered by any of the
Collateral Documents, (iii) perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and any of the Liens intended
to be created thereunder (other than, with respect to the Sunesys Pledge, with
respect to the matters set forth in Section 8.01(j)) and (iv) assure,
convey, grant, assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to which any Loan
Party or any of its Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.


 


6.14.       Regulated Subsidiaries;
Approval. (a) Within a
reasonable period of time following the Closing Date (not to exceed fifteen
days), commence to diligently pursue, on a commercially reasonably basis, all
required consents and approvals from each applicable Governmental Authority so
that (i) each Regulated Subsidiary existing on the Closing Date may guarantee
the Indebtedness pursuant to the Guaranty and grant Liens to the Administrative
Agent pursuant to the Security Agreement and (ii) each parent of such Regulated
Subsidiary may pledge the Equity Interests of such Regulated Subsidiary to the
Administrative Agent and (b) within a reasonable period of time following the
formation or acquisition of any Regulated Subsidiary after the Closing Date
(not to exceed fifteen days), commence to diligently pursue, on a commercially
reasonably basis, all required consents and approvals from each applicable
Governmental Authority so that (i) such Regulated Subsidiary may guarantee the
Indebtedness pursuant to the Guaranty and grant Liens to the Administrative
Agent pursuant to the Security Agreement and (ii) each parent of such Regulated
Subsidiary may pledge the Equity Interests of such Regulated Subsidiary to the
Administrative Agent


 


6.15.       Mechanical Specialties. In the event that Borrower has not provided
satisfactory evidence to the Administrative Agent within 90 days following the
Closing Date that Mechanical Specialties, Inc. consummated a sale of all or
substantially all of its assets and has subsequently dissolved, Mechanical
Specialties, Inc. shall become a Guarantor pursuant to Section 6.12 and
execute and/or deliver all security agreements, pledge agreements and
certificates required to be executed and/or delivered pursuant to Section
6.12.


 


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ARTICLE VII.

NEGATIVE COVENANTS


 


So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, neither Holdings or the Borrower shall, nor
shall they permit any Subsidiary to, directly or indirectly:


 


7.01.       Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, or sign or file or suffer to exist under the Uniform
Commercial Code of any jurisdiction a financing statement that names Holdings
or any of its Subsidiaries as debtor, or assign any accounts or other right to
receive income, other than the following:


 


(a)           Liens pursuant to any Loan Document;


 


(b)           Liens existing on the date hereof and listed on Schedule 5.08(b)
and any renewals or extensions thereof, provided that (i) the property
covered thereby is not changed, (ii) the amount secured or benefited thereby is
not increased except as contemplated by Section 7.03(b), (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 7.03(b);


 


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


 


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


 


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


 


(f)            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;


 


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


 


(h)           Liens securing Indebtedness permitted under Section 7.03(e); provided
that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition;


 


(i)            any interest or title of a lessor, licensor
or sublessor under any lease, license or sublease entered into by the Borrower
or any other Subsidiary in the ordinary course of its business and covering
only the assets so leased, licensed or subleased;


 


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(j)            Liens arising out of any conditional sale,
title retention, consignment or other similar arrangements for the sale of
goods by the Borrower or any of its Subsidiaries in the ordinary course of
business to the extent such Liens do not attach to any assets other than the
goods subject to such arrangements;


 


(k)           Liens on insurance policies and the proceeds thereof pursuant to
insurance premium financing arrangements;


 


(l)            Liens (i) incurred in the ordinary course of
business in connection with the purchase or shipping of goods or assets (or the
related assets and proceeds thereof), which Liens are in favor of the seller or
shipper of such goods or assets and only attached to such goods or assets, and
(ii) in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;


 


(m)          Liens in favor of collecting banks having a right of setoff,
revocation, refund or chargeback with respect to money or instruments of the
Borrower or any of its Subsidiaries on deposits with or in possession of such
banks, other than relating to Indebtedness;


 


(n)           Liens on the assets of Foreign Subsidiaries that are not Guarantors in
connection with financing arrangements for their benefit that are not otherwise
prohibited under this Agreement;


 


(o)           purported Liens evidenced by the filing of precautionary UCC financing
statements relating solely to operating leases of personal property entered
into in the ordinary course of business;


 


(p)           (i) 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 and (ii) Liens on cash reserves securing
Indebtedness of the Borrower and its Subsidiaries in respect of letters of
credit or surety bonds permitted by Section 7.03(g); and Liens on cash
reserves securing other obligations of the Borrower and its Subsidiaries in
respect of letters of credit or surety bonds arising in the ordinary course of
business, to the extent not provided to secure the repayment of other
Indebtedness of the Borrower and its Subsidiaries; provided that the
aggregate amount of all such deposits and cash reserves provided by the
Borrower and its Subsidiaries in respect of surety bonds shall not, at any
time, exceed ten percent (10%) of the aggregate backlog of all contracts
covered by surety bonds;


 


(q)           Liens on contracts entered into with its customers by Holdings or any
of its Subsidiaries, and on all assets related thereto and to the projects that
are the subject thereof, to secure the obligations of Holdings or such
Subsidiary in respect of surety bonds issued on its behalf (the issuer thereof,
the “Surety”) to assure performance of such contracts (each such
contract, a “Bonded Contract”); provided that (i) all such Liens
(other than those on accounts receivable due and to become due with respect to
all Bonded Contracts, contract rights related to such accounts receivable and
materials purchased for incorporation in any project that is the subject of a
Bonded Contract) shall be subject, subordinate and junior to the Liens on the
assets that are subject thereto created by the Collateral Documents and (ii)
prior to the creation of any such Liens each Person (directly or through its
agent) which is to be secured thereby shall have entered into with the
Administrative Agent, on behalf of the Lenders, an Intercreditor Agreement
which is in form and substance satisfactory to the Administrative Agent; and


 


(r)            Liens not otherwise permitted by this Section
so long as the aggregate outstanding principal amount of the obligations
secured thereby do not exceed $10,000,000 at any one time; and


 


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(s)           Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 7.02.


 


7.02.       Investments. Make any Investments, except:


 


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


 


(b)           advances (i) to employees of the Borrower and Subsidiaries in the
ordinary course of business and (ii) to officers and directors of the Borrower
and Subsidiaries in an aggregate amount not to exceed $1,000,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;


 


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


 


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


 


(e)           Guarantees permitted by Section 7.03;


 


(f)            Investments existing on the date hereof;
provided that, any existing Investment consisting of intercompany loans by any
Loan Party in a Person that is a Regulated Subsidiary that is not a Guarantor
(A) shall be evidenced by an intercompany note or notes, (B) such notes shall
be in form and substance reasonably satisfactory to the Administrative Agent
and (C) such notes shall be pledged and delivered to the Administrative Agent
as Collateral;


 


(g)           Investments by the Borrower in Swap Contracts permitted under Section 7.03(d);


 


(h)           Investments by the Borrower or a Guarantor consisting of the purchase
or other acquisition of all of the Equity Interests in, or all or substantially
all of the property of, any Person or a line of business or a division of such
Person that, upon the consummation thereof, will be wholly-owned directly by
the Borrower or one or more of its wholly-owned Subsidiaries (including as a
result of a merger or consolidation) (each, a “Permitted Acquisition”); provided
that, with respect to each purchase or other acquisition made pursuant to this Section
7.03(h):


 


(i)            any such newly-created or acquired Subsidiary
shall comply with the requirements of Section 6.12;


 


(ii)           the lines of business of the Person to be (or
the property of which is to be) so purchased or otherwise acquired shall not be
substantially different from the lines of business conducted by the Borrower
and its Subsidiaries on the date hereof or any business substantially related or
incidental thereto;


 


(iii)          (A) immediately before and immediately after
giving pro forma effect to any such purchase or other acquisition (including
the revenues and expenses (less Permitted Cost-Savings)), no Default shall have
occurred and be continuing and (B) immediately after giving effect to such
purchase or other acquisition, Holdings and its Subsidiaries shall be in pro
forma compliance with all of the covenants set forth in Section 7.11,
such compliance to be determined on the basis of the financial information most
recently delivered to the Administrative Agent and 


 


65

















 


the Lenders pursuant to Section 6.01(a) or (b) as though
such purchase or other acquisition had been consummated as of the first day of
the fiscal period covered thereby;


 


(iv)          after giving effect to such Permitted
Acquisition, the sum of (i) the Aggregate Commitments minus the Total Revolving
Credit Outstandings plus (ii) the aggregate amount of cash and Cash Equivalents
then held by the Borrower and its Subsidiaries shall be no less than
$15,000,000; and


 


(v)           in the case of any newly created or acquired
Regulated Subsidiary that is not a Guarantor or Foreign Subsidiary that is not
a Guarantor, such Investment shall be permitted by clause (i)(iii) or, as
applicable, clause (i)(iv) of this Section.


 


(i)            (i) intercompany Investments by any Loan
Party in the Borrower or any Person that, prior to such investment, is a
Guarantor, (ii) Investments by any Foreign Subsidiary that is not a Guarantor
in any Person that, prior to such Investment, is a Foreign Subsidiary and not a
Guarantor, (iii) Investments by any Loan Party in any Foreign Subsidiary in an
aggregate amount outstanding at any time not to exceed $5,000,000 (after giving
effect to any portion of any such Investment returned to the investor in cash,
whether as a repayment of principal or a return of invested capital, as
the case may be, but without giving effect to any earnings on such Investment,
whether in the form of interest, dividends or otherwise), and (iv) Investments
consisting of intercompany loans by any Loan Party (other than a Foreign
Subsidiary) in a Person that, prior to such Investment, is a Regulated
Subsidiary that is not a Guarantor in an aggregate amount outstanding at any
time not to exceed $75,000,000 (after giving effect to any portion of any such
Investment returned to the investor in cash, whether as a repayment of
principal or a return of invested capital, as the case may be, but without
giving effect to any earnings on such Investment, whether in the form of
interest, dividends or otherwise); provided that (A) all such loans are
evidenced by an intercompany note or notes, (B) such notes are in form and
substance reasonably satisfactory to the Administrative Agent and (C) such
notes are pledged and delivered to the Administrative Agent as Collateral.


 


(j)            Investments (including Indebtedness and
Equity Interests) received in connection with the bankruptcy or reorganization
of suppliers and customers and in settlement of delinquent obligations of, and
other disputes with, customers and suppliers arising in the ordinary course of
business;


 


(k)           without duplication, Investments that constitute Capital Expenditures
permitted pursuant to Section 7.12;


 


(l)            Investments funded through substantially
concurrent capital contributions to Holdings or substantially concurrent sales
or issuances of Equity Interests of Holdings; provided, that the
proceeds (if any) of such capital contributions, sales or issuances are
contributed by Holdings, directly or indirectly through any Subsidiary, to the
Borrower or a Subsidiary of the Borrower, as the case may be, making such
Investment or used to fund the acquisition of Investments which are so
contributed to the Borrower or a Subsidiary of the Borrower;


 


(m)          guarantees by the Borrower of employment contracts entered into between
Holdings and officers of Holdings and its Subsidiaries; and


 


(n)           in addition to Investments otherwise expressly permitted by this
Section, Investments by the Borrower or any of its Subsidiaries in an aggregate
amount (valued at cost but giving effect to any portion of such Investments
returned to the investor in cash as a repayment of principal or a return of
invested capital but without giving effect to any earnings on such Investment,
whether in the form of interest, dividends or otherwise) not to exceed
$10,000,000 in any fiscal year of Holdings.


 


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


 


(a)           Indebtedness under the Loan Documents;


 


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


 


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


 


(d)           obligations (contingent or otherwise) of the Borrower or any Subsidiary
existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person 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)           Indebtedness in respect of capital leases, Synthetic Lease Obligations
and purchase money obligations for fixed or capital assets within the
limitations set forth in Section 7.01(h); provided, however,
that the aggregate amount of all such Indebtedness at any one time outstanding
shall not exceed $20,000,000;


 


(f)            (i) Indebtedness of the Borrower to any
Guarantor, (ii) Indebtedness of any Guarantor (other than Holdings) to the Borrower
or any other Guarantor, (iii) Indebtedness of a Regulated Subsidiary that is
not a Guarantor to the Borrower or any Guarantor to the extent such
Indebtedness constitutes an Investment permitted under Section 7.02(i)(iv),
(iv) Indebtedness of any Foreign Subsidiary that is a Guarantor to any other
Foreign Subsidiary, and (v) Indebtedness in an aggregate principal amount not
to exceed $5,000,000 of all Foreign Subsidiaries;


 


(g)           Indebtedness in respect of performance bonds, bid bonds, appeal bonds,
bankers acceptances, letters of credit, surety bonds or other similar
obligations arising in the ordinary course of business, and any refinancings
thereof to the extent not provided to secure the repayment of other
Indebtedness (including Guarantee Obligations relating thereto);


 


(h)           Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business, provided that such
Indebtedness is extinguished within five Business Days after its incurrence;


 


(i)            Indebtedness of the Borrower or any of its
Subsidiaries consisting of the financing of insurance premiums in the ordinary
course of business;


 


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(j)            Indebtedness of the Borrower consisting of
unsecured senior debt or unsecured Subordinated Debt in an aggregate amount not
to exceed $150,000,000, in each case, on terms and conditions reasonably
satisfactory to the Administrative Agent (including, without limitation,
satisfactory evidence of pro forma compliance with all financial covenants
contained in Section 7.11 after giving effect to such incurrence of
Indebtedness under this clause (j)) and any refinancing of such Indebtedness
permitted under Section 7.15;


 


(k)           Indebtedness of the Borrower or any Subsidiary Guarantor assumed in
connection with any Permitted Acquisition; provided, however,
that such Indebtedness existed at the time of the completion of such Permitted
Acquisition and was not incurred or created in anticipation of such Permitted
Acquisition; and


 


(l)            Other Indebtedness of the Borrower and the
Guarantors in an aggregate amount not to exceed $5,000,000.


 


7.04.       Fundamental Changes. Merge, dissolve, liquidate, consolidate
with or into another Person, or Dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long
as no Default exists or would result therefrom:


 


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


 


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


 


(c)           any Immaterial Subsidiary may liquidate, wind up or dissolve.


 


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


 


(a)           Dispositions of obsolete, worn out, replaced or upgraded property or
property that the Borrower and its Subsidiaries have ceased to use or need in
the ordinary conduct of their business, whether now owned or hereafter
acquired, in the ordinary course of business;


 


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


 


(c)           Dispositions of equipment or real property to the extent that (i) such
property is identified on Schedule 7.05. (ii) such property is exchanged
for credit against the purchase price of similar replacement property or (iii)
the proceeds of such Disposition are reasonably promptly applied to the
purchase price of such replacement property;


 


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


 


(e)           Dispositions permitted by Section 7.04;


 


(f)            the Disposition of cash or Cash Equivalents
in the ordinary course of business;


 


68

















 


(g)           non-exclusive licenses of IP Rights in the ordinary course of business
and substantially consistent with past practice for terms not exceeding five
years; and


 


(h)           Dispositions by the Borrower and its Subsidiaries not otherwise
permitted under this Section 7.05; provided that (i) at the time
of such Disposition, no Default shall exist or would result from such
Disposition and (ii) the aggregate book value of all property Disposed of in
reliance on this clause (h) in any fiscal year shall not exceed $20,000,000.


 


7.06.       Restricted Payments. Declare or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, or issue or sell any Equity Interests, except:


 


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


 


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


 


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


 


(d)           Holdings may declare or pay cash dividends to its stockholders and make
redemptions or purchases of its Equity Interests in any fiscal year of Holdings
in an amount not to exceed 50% of Consolidated Net Income for such fiscal year;
provided, that (i) the Consolidated Leverage Ratio, determined as of the
end of the most recent fiscal quarter (calculated on a pro forma basis to
include any borrowings used to make any dividend or redemption) is less than
2.00:1.00 and (ii) no Default or Event of Default shall have occurred or be
continuing at the time of the making of such dividend or redemption;


 


(e)           the Borrower may declare and pay cash dividends to Holdings not to
exceed an amount necessary to permit Holdings to pay (i) reasonable and
customary corporate and operating expenses (including reasonable out-of-pocket
expenses for legal, administrative and accounting services provided by third
parties, and compensation, benefits and other amounts payable to officers and
employees in connection with their employment in the ordinary course of
business and to board of director observers) , (ii) franchise fees or similar
taxes and fees required to maintain its corporate existence, (iii) its
proportionate share of the tax liability of the affiliated group of
corporations that file consolidated Federal income tax returns (or that file
state and local income tax returns on a consolidated basis) as determined using
any method permitted by Section 1552 of the Code or Section 1.1502-33(d) of the
Treasury Regulations and (iv) to
provide funding of Restricted Payments permitted under Section 7.06(d); and


 


(f)            so long as no Default or Event of Default
shall have occurred and be continuing, the Borrower may pay dividends to
Holdings to permit Holdings to purchase Holding’s common stock or common stock
options from present or former officers or employees of any of Holdings or its
Subsidiaries upon the death, disability or termination of employment of such
officer or employee or pursuant to the terms of any stock option plan or like
agreement.


 


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


 


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7.08.       Transactions with Affiliates. Enter into any transaction of any kind with
any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm’s length transaction with a Person
other than an Affiliate, provided that the foregoing restriction shall not apply
to transactions between or among the Borrower and any Guarantor or between and
among any Guarantors.


 


7.09.       Burdensome Agreements. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to the Borrower or
any Guarantor or to otherwise transfer property to the Borrower or any
Guarantor, except for any agreement in effect (A) on the date hereof and set
forth on Schedule 7.09 or (B) at the time any Subsidiary becomes a
Subsidiary of Holdings, so long as such agreement was not entered into solely
in contemplation of such Person becoming a Subsidiary of Holdings, (ii) of any
Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person; provided, however, that this clause
(iii) shall not prohibit any negative pledge incurred or provided in favor of
any holder of Indebtedness permitted under Section 7.03(e) solely to the
extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness; or (b) requires the grant of a Lien to secure an
obligation of such Person if a Lien is granted to secure another obligation of
such Person.


 


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


 


7.11.       Financial Covenants.


 


(a)           Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio as of the end of any fiscal quarter of Holdings to be less than
2.00:1.00:


 


(b)           Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio,
determined (i) as of the end of any fiscal quarter of Holdings ending prior to
the incurrence of Subordinated Debt and/or senior unsecured debt pursuant to Section
7.03(j) in an amount equal to or greater than $25,000,000, to be greater
than 3.25:1.00 and (ii) as of the end of any fiscal quarter of Holdings ending
after such incurrence, to be greater than 4.00:1.00; provided that
subsection (i) shall apply if such Subordinated Debt and senior unsecured debt
is no longer outstanding.


 


(c)           Consolidated Senior Leverage Ratio. Permit the Consolidated Senior
Leverage Ratio, determined as of the end of any fiscal quarter of Holdings
ending after the incurrence of Subordinated Debt and/or senior unsecured debt
pursuant to Section 7.03(j) in an amount equal to or greater than
$25,000,000, to be greater than 2.50:1.00; provided that this provision
shall not apply if such Subordinated Debt and senior unsecured debt is no
longer outstanding.


 


7.12.       Capital Expenditures. Make or become legally obligated to make
Capital Expenditures exceeding, in the aggregate for the Borrower and it
Subsidiaries during each fiscal year set forth below, net of the proceeds
received by the Borrower and its Subsidiaries during such fiscal year from
Dispositions of property pursuant to Section 7.05(a), the amount set
forth opposite such fiscal year:


 




	
  Fiscal Year

  	
   

  	
  Amount

  	
   

  
	
  2006

  	
   

  	
  $

  	
  65,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2007 and
  each fiscal year of Holdings thereafter

  	
   

  	
  $

  	
  70,000,000

  	
   

  






 


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provided, however,
that so long as no Default has occurred and is continuing or would result from
such expenditure, 50% of any amount set forth above, if not expended in the
fiscal year for which it is permitted above, may be carried over for
expenditure in the next following fiscal year.


 


7.13.       Amendments of Organization
Documents. Amend any of its
Organization Documents if such amendment could reasonably have a Material
Adverse Effect.


 


7.14.       Accounting Changes. Make any change in Holdings’ fiscal year or
the determination of the quarters within the fiscal year.


 


7.15.       Prepayments, Etc. of
Indebtedness. Prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner or make any payment in violation of any subordination
terms of, (a) any Subordinated Debt or (b) senior unsecured Indebtedness set
forth in Section 7.03(j); provided that nothing in this Section
shall prohibit Holdings and its Subsidiaries from (i) converting such
Indebtedness to Equity Interests or (ii) prepaying such Indebtedness in full
with proceeds received from a refinancing of such Indebtedness; provided
that (A) the amount of such Indebtedness is not increased at the time of such
refinancing except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder, (B) the terms relating to principal amount,
amortization, maturity, collateral (if any) and subordination (if any), and
other material terms taken as a whole, of any such refinancing, and of any
agreement entered into and of any instrument issued in connection therewith,
are no less favorable in any material respect to the Loan Parties or the
Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced and the interest rate applicable to any such
refinancing does not exceed the then applicable market interest rate and (C)
such refinancing shall be on terms and conditions reasonably satisfactory to
the Administrative Agent  (including,
without limitation, satisfactory evidence of pro forma compliance with all
financial covenants contained in Section 7.11 after giving effect to
such refinancing of Indebtedness under this clause (ii)).


 


7.16.       Sales and Leasebacks. Enter into any arrangement with any Person
providing for the leasing by any Loan Party of real or personal property that
has been or is to be sold or transferred by such Loan Party to such Person or
to any other Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of such Loan
Party, except for the sale and leaseback of trucks and equipment for immaterial
amounts in the ordinary course of business.


 


7.17.       Swap Contracts. Enter into any Swap Contract, except (a) Swap
Contracts entered into to hedge or mitigate risks to which the Borrower or any
Subsidiary has actual exposure (other than those in respect of Equity
Interests) and (b) Swap Contracts entered into in order to effectively cap,
collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary.


 


7.18.       Certain Agreements. Consent to, or otherwise enter into or
permit, any amendment, supplement or other modification of any document
governing Subordinated Debt or the senior unsecured Indebtedness set forth in Section
7.03(j) without the prior written consent of the Administrative Agent.


 


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7.19.       Holdings. Holdings shall not directly or indirectly
(i) conduct, transact or otherwise engage in, or commit to conduct, transact or
otherwise engage in, any business or operations other than those incidental to
its ownership of the Equity Interests of the Borrower and in connection with
employment contracts entered into with officers of Holdings and its
Subsidiaries, or (ii) incur, create, assume or suffer to exist any Indebtedness
or other liabilities or financial obligations, except (w) obligations in
respect of surety bonds referred to in Section 7.01(q), (x)
nonconsensual obligations imposed by operation of law, (y) Indebtedness,
liabilities and obligations pursuant to the Loan Documents to which it is a
party, agreements entered into in connection with or related to Permitted
Acquisitions and issuances of Equity Interests, agreements entered into with
directors and officers of Holdings and corporate overhead expenses and (z)
obligations with respect to its Equity Interests.


 


ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


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


 


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


 


(b)           Specific Covenants. The Borrower or any other Loan Party fails
to perform or observe (a) any term, covenant or agreement contained in any of
(i) Section 6.05(a), 6.10, 6.11 or 6.12 or Article
VII (excluding 7.19), or (ii) Section 6.01, 6.02,  or 6.03 and such failure continues for
15 days after the earlier of (A) the date on which any Responsible Officer of
the Borrower knows or should have known of such failure, and (B) notice thereof
to the Borrower and Holdings by the Administrative Agent or the Required
Lenders; or


 


(c)           Other Defaults. Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after the earlier of (i) the date on which any
Responsible Officer of the Borrower knows of such failure, and (ii) notice
thereof to the Borrower and Holdings by the Administrative Agent or the
Required Lenders; or


 


(d)           Representations and Warranties. Any representation, warranty or
certification made by or on behalf of the Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered pursuant to
the terms of this Agreement shall be materially incorrect or misleading when
made or deemed made; or


 


(e)           Cross-Default. (i) Any Loan Party or any Subsidiary
thereof (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



 


72

















 


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 any Loan Party or any
Subsidiary thereof 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 any Loan Party or any Subsidiary thereof is an Affected Party (as so
defined) and, in either event, (x) the Swap Termination Value owed by such Loan
Party or such Subsidiary as a result thereof is greater than the Threshold
Amount and (y) such Loan Party does not pay in full such Swap Termination Value
within fifteen (15) days after it becomes due and payable; or


 


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


 


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


 


(h)           Judgments. There is entered against any Loan Party or any Subsidiary thereof
(other than an Immaterial Subsidiary) (i) one or more final judgments or orders
for the payment of money in an aggregate amount (as to all such judgments and
orders) exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage).


 


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


 


(j)            Invalidity of Loan Documents. Any provision of any Loan Document, at any
time after its execution and delivery and for any reason (other than (i) as
expressly permitted hereunder or thereunder, (ii) as a result of the
satisfaction in full of all the Obligations or (iii) as a result of the Sunesys
Pledge being voided by the New Jersey Board of Public Utilities) ceases to be
in full force and effect with respect to any Loan Party; or any Loan Party
contests in any manner the validity or enforceability of any provision of any
Loan Document; or any Loan Party denies that it has any or further liability or
obligation 


 


73

















 


under
any provision of any Loan Document, or purports to revoke, terminate or rescind
any provision of any Loan Document; or


 


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


 


(l)            Collateral Documents. Any Collateral Document after delivery
thereof pursuant to Section 4.01 or 6.12 shall for any
reason (other than (i) pursuant to the terms thereof or (ii) as a result of the
Sunesys Pledge being voided by the New Jersey Board of Public Utilities) cease
to create a valid and perfected first priority Lien (subject to Liens permitted
by Section 7.01) on the Collateral purported to be covered thereby; or


 


(m)          (i)  The subordination provisions
of the documents evidencing or governing any Subordinated Debt (the “Subordinated
Provisions”) shall, in whole or in part, terminate, cease to be effective
or cease to be legally valid, binding and enforceable against any holder of the
applicable Subordinated Debt; or (ii) the Borrower or any other Loan Party
shall, directly or indirectly, disavow or contest in any manner (A) the
effectiveness, validity or enforceability of any of the Subordination
Provisions, (B) that the Subordination Provisions exist for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer or (C) that all payments
of principal of or premium and interest on the applicable Subordinated Debt, or
realized from the liquidation of any property of any Loan Party, shall be
subject to any of the Subordination Provisions.


 


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


 


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


 


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


 


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


 


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


 


provided, however,
that upon the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States,
the obligation of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of the
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the
Administrative Agent or any Lender.


 


8.03.       Application of Funds. After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section
8.02), any 


 


74

















 


amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:


 


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


 


Second, to
payment of that portion of the Obligations constituting fees, indemnities and
other amounts (other than principal, interest and Letter of Credit Fees)
payable to the Lenders and the L/C Issuer (including fees, charges and
disbursements of counsel to the respective Lenders and the L/C Issuer
(including fees and time charges for attorneys who may be employees of any
Lender or the L/C Issuer) and amounts payable under Article III),
ratably among them in proportion to the respective amounts described in this
clause Second payable to them;


 


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


 


Fourth, to
payment of that portion of the Obligations constituting unpaid principal of the
Loans, L/C Borrowings and amounts owing under Secured Hedge Agreements and
Secured Cash Management Agreements and to the Administrative Agent for the
account of the L/C Issuer, to Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit,
ratably among the Lenders, the L/C Issuer, the Hedge Banks and the Cash
Management Banks in proportion to the respective amounts described in this
clause Fourth held by them; and


 


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


 


Subject to Section 2.03(c), amounts used to Cash Collateralize
the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth
above shall be applied to satisfy drawings under such Letters of Credit as they
occur. If any amount remains on deposit as Cash Collateral after all Letters of
Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.


 


ARTICLE IX.

ADMINISTRATIVE AGENT


 


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


 


(b)           The Administrative Agent shall also act as the “collateral agent”
under the Loan Documents, and each of the Lenders (in its capacities as a
Lender, Swing Line Lender (if applicable), potential Hedge Bank and potential
Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of such Lender and the
L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens
on Collateral granted by any of the Loan 


 


75

















 


Parties
to secure any of the Obligations, together with such powers and discretion as
are reasonably incidental thereto. In this connection, the Administrative
Agent, as “collateral agent” and any co-agents, sub-agents and
attorneys-in-fact appointed by the Administrative Agent pursuant to Section
9.05 for purposes of holding or enforcing any Lien on the Collateral (or
any portion thereof) granted under the Collateral Documents, or for exercising
any rights and remedies thereunder at the direction of the Administrative
Agent), shall be entitled to the benefits of all provisions of this Article
IX and Article 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.


 


(c)           The Administrative Agent is authorized and directed to execute and
deliver the Intercreditor Agreements on behalf of the Secured Parties and to
act in accordance with the provisions thereof. Each of the Secured Parties
agrees to be bound by the provisions thereof.


 


(d)           The Administrative Agent is authorized and directed to grant to the
Borrower and the other Loan Parties a limited power of attorney, for the
administration of Collateral, the ownership of or title to, which is evidenced
by a motor vehicle or other certificate of title.


 


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


 


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


 


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


 


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


 


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


 


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 8.02) or (ii)
in the absence of its own gross negligence or 


 


76

















 


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 Holdings, the Borrower, a Lender or the L/C Issuer.


 


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


 


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


 


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


 


9.06.       Resignation of
Administrative Agent. The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, with the approval of
the Borrower if no Default exists, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with
an office in the United States. If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting
the qualifications set forth above; provided that if the Administrative
Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged 


 


77

















 


from
its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the
retiring Administrative Agent shall continue to hold such collateral security
until such time as a successor Administrative Agent is appointed) and
(2) all payments, communications and determinations provided to be made
by, to or through the Administrative Agent shall instead be made by or to each
Lender and the L/C Issuer directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 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.


 


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


 


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


 


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


 


9.09.       Administrative Agent May
File Proofs of Claim. In
case of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the 


 


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Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise


 


(a)           to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all
other Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders, the
L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.03(i) and (j), 2.09 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 and the L/C Issuer to make such payments to
the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the L/C
Issuer, to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent
and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.09 and 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 or the L/C Issuer any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender
or the L/C Issuer to authorize the Administrative Agent to vote in respect of
the claim of any Lender or the L/C Issuer in any such proceeding.


 


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


 


(a)           to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or termination of
all Letters of Credit, (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan Document,
or (iii) if approved, authorized or ratified in writing in accordance with Section
11.01;


 


(b)           to release the Collateral granted pursuant to the Collateral Assignment
of Intercompany Notes upon Sunesys, Inc. and Sunesys of Virginia, Inc. (a)
obtaining the necessary approvals and/or consents pursuant to Section 6.14
and (b) becoming a Guarantor, granting a security interest to the
Administrative Agent in substantially all of its assets and otherwise executing
and/or delivering all documents, certificates, opinions and other items
required under Section 6.12;


 


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


 


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


 


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


 


ARTICLE X.

CONTINUING GUARANTY


 


10.01.     Guaranty. Holdings hereby absolutely and
unconditionally guarantees, as a guaranty of payment and performance and not
merely as a guaranty of collection, prompt payment when due, whether at stated
maturity, by required prepayment, upon acceleration, demand or otherwise, and
at all times thereafter, of any and all of the Obligations, whether for
principal, interest, premiums, fees, indemnities, damages, costs, expenses or
otherwise, of the Borrower to the Secured Parties, arising hereunder and under
the other Loan Documents (including all renewals, extensions, amendments,
refinancings and other modifications thereof and all costs, attorneys’ fees and
expenses incurred by the Secured Parties in connection with the collection or
enforcement thereof). The Administrative Agent’s books and records showing the
amount of the Obligations shall be admissible in evidence in any action or
proceeding, and shall be binding upon Holdings, and conclusive for the purpose
of establishing the amount of the Obligations. This Guaranty shall not be
affected by the genuineness, validity, regularity or enforceability of the
Obligations or any instrument or agreement evidencing any Obligations, or by
the existence, validity, enforceability, perfection, non-perfection or extent
of any collateral therefor, or by any fact or circumstance relating to the
Obligations which might otherwise constitute a defense to the obligations of
Holdings under this Guaranty, and Holdings hereby irrevocably waives any
defenses it may now have or hereafter acquire in any way relating to any or all
of the foregoing.


 


Notwithstanding any provision to the contrary contained herein or in
any other of the Loan Documents or Swap Contracts, the obligations of Holdings
under this Article X 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.


 


10.02.     Rights of Lenders. Holdings consents and agrees that the
Secured Parties may, at any time and from time to time, without notice to or
demand of Holdings, and without affecting the enforceability or continuing
effectiveness hereof:  (a) amend, extend,
renew, compromise, discharge, accelerate or otherwise agree to change the time
for payment or the terms of the Obligations or any part thereof; (b) take, hold,
exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose
of any security for the payment of this Guaranty or any Obligations; (c) apply
such security and direct the order or manner of sale thereof as the
Administrative Agent, the L/C Issuer and the Lenders in their sole discretion
may determine; and (d) release or substitute one or more of any endorsers or
other guarantors of any of the Obligations. Without limiting the generality of
the foregoing, Holdings consents to the taking of, or failure to take, any
action which might in any manner or to any extent vary the risks of Holdings
under this Guaranty or which, but for this provision, might operate as a
discharge of Holdings.


 


10.03.     Certain Waivers. Holdings waives (a) any defense arising by
reason of any disability or other defense of the Borrower or any other
guarantor, or the cessation from any cause whatsoever 


 


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(including
any act or omission of any Secured Party) of the liability of the Borrower; (b)
any defense based on any claim that Holdings’ obligations exceed or are more
burdensome than those of the Borrower; (c) the benefit of any statute of
limitations affecting Holdings’ liability hereunder; (d) except as provided in Section
10.05, any right to proceed against the Borrower, proceed against or
exhaust any security for the Obligations, or pursue any other remedy in the
power of any Secured Party whatsoever; (e) any benefit of and any right to
participate in any security now or hereafter held by any Secured Party; and (f)
to the fullest extent permitted by law, any and all other defenses or benefits
that may be derived from or afforded by applicable law limiting the liability
of or exonerating guarantors or sureties. Holdings expressly waives all setoffs
and counterclaims and all presentments, demands for payment or performance,
notices of nonpayment or nonperformance, protests, notices of protest, notices
of dishonor and all other notices or demands of any kind or nature whatsoever
with respect to the Obligations, and all notices of acceptance of this Guaranty
or of the existence, creation or incurrence of new or additional Obligations.
As provided below, this Guaranty shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Pennsylvania.


 


10.04.     Obligations Independent. The obligations of Holdings hereunder are
those of primary obligor, and not merely as surety, and are independent of the
Obligations and the obligations of any other guarantor, and a separate action
may be brought against Holdings to enforce this Guaranty whether or not the
Borrower or any other person or entity is joined as a party.


 


10.05.     Subrogation. Holdings shall not exercise any right of
subrogation, contribution, indemnity, reimbursement or similar rights with
respect to any payments it makes under this Guaranty until all of the
Obligations and any amounts payable under this Guaranty have been indefeasibly
paid and performed in full and the Commitments are terminated. If any amounts
are paid to Holdings in violation of the foregoing limitation, then such
amounts shall be held in trust for the benefit of the Secured Parties and shall
forthwith be paid to the Secured Parties to reduce the amount of the
Obligations, whether matured or unmatured.


 


10.06.     Termination; Reinstatement. This Guaranty is a continuing and
irrevocable guaranty of all Obligations now or hereafter existing and shall
remain in full force and effect until all Obligations and any other amounts
payable under this Guaranty are indefeasibly paid in full in cash and the
Commitments with respect to the Obligations are terminated. Notwithstanding the
foregoing, this Guaranty shall continue in full force and effect or be revived,
as the case may be, if any payment by or on behalf of the Borrower or Holdings
is made, or any of the Secured Parties exercises its right of setoff, in
respect of the Obligations 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 any of the Secured Parties in their discretion) to be repaid to
a trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Laws or otherwise, all as if such payment had not been made
or such setoff had not occurred and whether or not the Secured Parties are in
possession of or have released this Guaranty and regardless of any prior
revocation, rescission, termination or reduction. The obligations of Holdings
under this paragraph shall survive termination of this Guaranty.


 


10.07.     Subordination. Holdings hereby subordinates the payment of
all obligations and indebtedness of the Borrower owing to Holdings, whether now
existing or hereafter arising, including but not limited to any obligation of
the Borrower to Holdings as subrogee of the Secured Parties or resulting from
Holdings’ performance under this Guaranty, to the indefeasible payment in full
in cash of all Obligations. If the Secured Parties so request, any such
obligation or indebtedness of the Borrower to Holdings shall be enforced and
performance received by Holdings as trustee for the Secured Parties and 


 


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the
proceeds thereof shall be paid over to the Secured Parties on account of the
Obligations, but without reducing or affecting in any manner the liability of
Holdings under this Guaranty.


 


10.08.     Stay of Acceleration. If acceleration of the time for payment of
any of the Obligations is stayed, in connection with any case commenced by or
against Holdings or the Borrower under any Debtor Relief Laws, or otherwise,
all such amounts shall nonetheless be payable by Holdings immediately upon
demand by the Secured Parties.


 


10.09.     Condition of Borrower. Holdings acknowledges and agrees that it
has the sole responsibility for, and has adequate means of, obtaining from the
Borrower and any other guarantor such information concerning the financial
condition, business and operations of the Borrower and any such other guarantor
as Holdings requires, and that none of the Secured Parties has any duty, and
Holdings is not relying on the Secured Parties at any time, to disclose to
Holdings any information relating to the business, operations or financial
condition of the Borrower or any other guarantor (Holdings waiving any duty on
the part of the Secured Parties to disclose such information and any defense
relating to the failure to provide the same).


 


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 and signed by the Required Lenders, Holdings and the Borrower or the
applicable Loan Party, as the case may be, and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided,
however, that no such amendment, waiver or consent shall:


 


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


 


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


 


(c)           postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the
Lenders (or any of them) hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;


 


(d)           reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (v) of the second 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 directly affected thereby; provided, however,
that only the consent of the Required Lenders shall be necessary (i) to amend
the definition of “Default Rate” or to waive any obligation of the Borrower to
pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend any
financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
L/C Borrowing or to reduce any fee payable hereunder;


 


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


 


(f)            change any provision of this Section or the
definition of “Required Lenders”, “Required Revolving Lenders” or any other
provision hereof specifying the number or percentage of Lenders


 


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


 


(g)           release all or substantially all of the value of the Guaranty without
the written consent of each Lender;


 


(h)           release all or substantially all of the Collateral in any transaction
or series of related transactions, without the written consent of each Lender;
or


 


(i)            amend the definition of “Alternative
Currency” without the written consent of each Lender;


 


and, provided  further, that (i) no amendment, waiver or
consent shall, unless in writing and signed by the L/C Issuer in addition to
the Lenders required above, affect the rights or duties of the L/C Issuer under
this Agreement or any Issuer Document relating to any Letter of Credit issued
or to be issued by it; (ii) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Lender in addition to the Lenders required
above, affect the rights or duties of the Swing Line Lender under this
Agreement; (iii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; (iv) Section 11.06(h) may not be amended,
waived or otherwise modified without the consent of each Granting Lender all or
any part of whose Loans are being funded by an SPC at the time of such
amendment, waiver or other modification; (v) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the
parties thereto and (vi) Sections 2.02, 2.03, 2.04, 2.05, 4.02 and this
clause (vi) may not be amended, waived or otherwise modified without the
consent of the Required Revolving Lenders. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.


 


If any Lender does not consent to a proposed amendment, waiver, consent
or release with respect to any Loan Document that requires the consent of each
Lender and that has been approved by the Required Lenders, the Borrower may
replace such non-consenting Lender in accordance with Section 11.13; provided
that such amendment, waiver, consent or release can be effected as a result of
the assignment contemplated by such Section (together with all other such assignments
required by the Borrower to be made pursuant to this paragraph).


 


11.02.     Notices; Effectiveness;
Electronic Communication.


 


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


 


(i)            if to Holdings, the Borrower, the
Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address,
telecopier number, electronic mail address or telephone number specified for
such Person on Schedule 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.


 


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


 


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


 


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


 


(c)           The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE 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 Holdings, the Borrower, any Lender, the L/C
Issuer or any other Person for losses, claims, damages, liabilities or expenses
of any kind (whether in tort, contract or otherwise) arising out of the
Borrower’s or the Administrative Agent’s transmission of Borrower Materials
through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction by
a final and nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to Holdings, the
Borrower, any Lender, the L/C Issuer or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual
damages).


 


(d)           Change of Address, Etc. Each of Holdings, the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender may change its
address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other
communications hereunder by notice to 


 


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the
Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender.
In addition, each Lender agrees to notify the Administrative Agent from time to
time to ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail
address to which notices and other communications may be sent and (ii) accurate
wire instructions for such Lender.


 


(e)           Reliance by Administrative Agent, L/C Issuer
and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower. All telephonic
notices to and other telephonic communications with the 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. No failure by any
Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by
any such Person in exercising, any right, remedy, power or privilege hereunder
or under any other Loan Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided, and provided under each other Loan Document, are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.


 


11.04.     Expenses; Indemnity; Damage
Waiver.


 


(a)           Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
L/C Issuer in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder, (iii) all costs and
expenses of lien searches, (iv) taxes, fees and other charges for filing
financing statements and continuations, and other actions to perfect, protect,
and continue the Administrative Agent’s Liens, (v) costs of appraisals,
inspections, and verifications, including, without limitation, travel, lodging,
and meals for inspections of the Collateral and the Borrower’s operations by
the Administrative Agent, subject to Section 6.10, (vi) costs and
expenses of preserving and protecting the Collateral, (vii) sums paid or
incurred to pay any amount or take any action required of the Borrower under
the Loan Documents that the Borrower fails to pay or take and (viii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C
Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and
time charges for attorneys who may be employees of the Administrative Agent,
any Lender or the L/C Issuer, in connection with the enforcement or protection
of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, (B) in connection with
the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, 


 


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restructuring
or negotiations in respect of such Loans or Letters of Credit, or (C) in
connection with the sale or other realization upon the Collateral.


 


(b)           Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee), and shall indemnify and hold harmless each Indemnitee from all
fees and time charges and disbursements for attorneys who may be employees of
any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee
by any third party or by the Borrower or any other Loan Party arising out of,
in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder, the consummation of the
transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only,
the administration of this Agreement and the other Loan Documents,
(ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought
by a third party or by the Borrower or any other Loan Party, and regardless of
whether any Indemnitee is a party thereto; 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. To the extent it is legally
permitted to do so, the applicable Indemnitee will provide the Borrower with
notice of any such investigation, litigation or proceeding described in clause
(iv) above and, in the case of litigation, the opportunity to defend such
litigation, provided that the Borrower shall not settle any such litigation
without the applicable Indemnitee’s consent.


 


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


 


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(d)           Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable
law, the Borrower and the Lenders, except as otherwise specifically provided
herein, shall not assert, and hereby waives, any claim against any Indemnitee
or Loan Party, as applicable, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof. No Indemnitee referred to in subsection (b)
above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereby or thereby other than
for direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and nonappealable
judgment of a court of competent jurisdiction.


 


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


 


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


 


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


 


11.06.     Successors and Assigns.


 


(a)           Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Loan Party (except as provided in Section 7.04(a)
may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section, (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f)
of this Section, or (iv) to an SPC in accordance with the provisions of
subsection (h) of this Section (and any other attempted assignment or transfer
by any party hereto shall be null and void). 


 


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Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.


 


(b)           Assignments by Lenders. Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


 


(i)            Minimum Amounts.


 


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


 


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


 


(ii)           Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not apply to the Swing Line
Lender’s rights and obligations in respect of Swing Line Loans;


 


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


 


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


 


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


 


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Term Loan to a Person that is not a Lender, an Affiliate of a Lender or
an Approved Fund;


 


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


 


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


 


(iv)          Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount, if any, required
as set forth in Schedule 11.06; provided, however, that
the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


 


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


 


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


 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05,
and 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.


 


(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 and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.


 


(d)           Participations. Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the 


 


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Borrower
or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender’s obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the Lenders
and the L/C Issuer shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement.


 


Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 11.01 that affects such Participant.
Subject to subsection (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were
a Lender.


 


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


 


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


 


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


 


(h)           Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”)
the option to provide all or any part of any Loan that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund any
Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails
to make all or any part of such Loan, the Granting Lender shall be obligated to
make such Loan pursuant to the terms hereof or, if it fails to do so, to make
such payment to the Administrative 


 


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Agent
as is required under Section 2.12(b)(ii). Each party hereto hereby
agrees that (i) neither the grant to any SPC nor the exercise by any SPC of
such option shall increase the costs or expenses or otherwise increase or
change the obligations of the Borrower under this Agreement (including its
obligations under Section 3.04), (ii) no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement for which a Lender
would be liable, and (iii) the Granting Lender shall for all purposes,
including the approval of any amendment, waiver or other modification of any
provision of any Loan Document, remain the lender of record hereunder. The
making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency, or liquidation
proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained herein, any SPC may (i) with
notice to, but without prior consent of the Borrower and the Administrative
Agent and with the payment of a processing fee in the amount of $2,500, assign
all or any portion of its right to receive payment with respect to any Loan to
the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.


 


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


 


11.07.     Treatment of Certain
Information; Confidentiality. Each
of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, 


 


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such
as the National Association of Insurance Commissioners), (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the exercise of
any remedies hereunder or under any other Loan Document or any action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent, any Lender, the L/C Issuer or
any of their respective Affiliates on a nonconfidential basis from a source
other than the Borrower.


 


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


 


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


 


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


 


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 


 


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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 4.01, 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 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 or any Letter of Credit shall remain outstanding.


 


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.


 


11.13.     Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 3.01, if any Lender is a Defaulting Lender or if any other
circumstance exists hereunder that gives the Borrower the right to replace a
Lender as a party hereto, 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:


 


93

















 


 


(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 and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts);


 


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


 


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


 


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


 


11.14.     Governing Law; Jurisdiction;
Etc.


 


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


 


(b)           SUBMISSION TO JURISDICTION. EACH OF THE BORROWER AND HOLDINGS
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA
SITTING IN PHILADELPHIA COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE
EASTERN DISTRICT OF PENNSYLVANIA, 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 STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE BORROWER OR HOLDINGS OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.


 


(c)           WAIVER OF VENUE. EACH OF THE BORROWER AND HOLDINGS
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 


 


94

















 


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


 


11.16.     No Advisory or Fiduciary
Responsibility. In
connection with all aspects of each transaction contemplated hereby, each of
the Borrower and Holdings acknowledges and agrees, and acknowledges its
Affiliates’ understanding that: (i) the credit facility provided for hereunder
and any related arranging or other services in connection therewith (including
in connection with any amendment, waiver or other modification hereof or of any
other Loan Document) are an arm’s-length commercial transaction between the
Borrower, Holdings and their respective Affiliates, on the one hand, and the
Administrative Agent and the Arranger, on the other hand, and each of Holdings
and the Borrower is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated hereby
and by the other Loan Documents (including any amendment, waiver or other
modification hereof or thereof); (ii) in connection with the process leading to
such transaction, the Administrative Agent and the Arranger each is and has
been acting solely as a principal and is not the financial advisor, agent or
fiduciary, for the Borrower and Holdings or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither the
Administrative Agent nor the Arranger has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of the Borrower or Holdings with
respect to any of the transactions contemplated hereby or the process leading
thereto, including with respect to any amendment, waiver or other modification
hereof or of any other Loan Document (irrespective of whether the
Administrative Agent or the Arranger has advised or is currently advising the
Borrower, Holdings or any of their respective Affiliates on other matters) and
neither the Administrative Agent nor the Arranger has any obligation to the
Borrower, Holdings or any of their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; (iv) the Administrative Agent and the
Arranger and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower,
Holdings and their respective Affiliates, and neither the Administrative Agent
nor the Arranger has any obligation to disclose any of such interests by virtue
of any advisory, agency or fiduciary relationship; and (v) the Administrative
Agent and the Arranger have not provided and will not provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or 


 


95

















 


other
modification hereof or of any other Loan Document) and each of the Borrower and
Holdings has consulted its own legal, accounting, regulatory and tax advisors
to the extent it has deemed appropriate. Each of the Borrower and Holdings
hereby waives and releases, to the fullest extent permitted by law, any claims
that it may have against the Administrative Agent and the Arranger with respect
to any breach or alleged breach of agency or fiduciary duty.


 


11.17.     USA PATRIOT Act Notice. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower and Holdings 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 and Holdings, which information
includes the name and address of the Borrower and Holdings and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower and Holdings in accordance with the Act.


 


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


 


96

















 


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


 


	
   

  	
  INFRASOURCE SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  TERENCE R. MONTGOMERY

  	
   

  
	
   

  	
  Name:

  	
  Terence
  R. Montgomery

  
	
   

  	
  Title:

  	
  Senior
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INFRASOURCE INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  TERENCE R. MONTGOMERY

  	
   

  
	
   

  	
  Name:

  	
  Terence
  R. Montgomery

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer, Senior Vice President 

  
	
   

  	
  and
  Treasurer

  
					



 


1

















 


	
   

  	
  BANK OF AMERICA, N.A., AS 

  ADMINISTRATIVE AGENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  MICHAEL R. LANGMEYER

  	
   

  
	
   

  	
  Name:

  	
  Michael
  R. Langmeyer

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
					



 


2

















 


	
   

  	
  BANK OF AMERICA, N.A., AS A LENDER, L/C 

  ISSUER AND SWING LINE LENDER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  KENNETH G. WOOD

  	
   

  
	
   

  	
  Name:

  	
  Kenneth
  G. Wood

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
					



 


3

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A., AS SYNDICATION

  AGENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lee P. Brennan

  	
   

  
	
   

  	
  Name:

  	
  Lee
  P. Brennan

  
	
   

  	
  Title:

  	
  Vice President

  
					



 

















 


	
   

  	
  NATIONAL CITY BANK, DOCUMENTATION

  AGENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Susan S. Callahan

  	
   

  
	
   

  	
  Name:

  	
  Susan
  S. Callahan

  
	
   

  	
  Title:

  	
  Vice President

  
					



 

















 


	
   

  	
  LASALLE BANK NATIONAL ASSOCIATION, AS

  DOCUMENTATION AGENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Nick Lotz

  	
   

  
	
   

  	
  Name:

  	
  Nick
  Lotz

  
	
   

  	
  Title:

  	
  AVP

  
					



 

















 


	
   

  	
  CITIZENS BANK OF PENNSYLVANIA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Leslie D. Broderick

  	
   

  
	
   

  	
  Name:

  	
  Leslie
  D. Broderick

  
	
   

  	
  Title:

  	
  SVP

  
					



 

















 


	
   

  	
  HARRIS N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joann L. Holman

  	
   

  
	
   

  	
  Name:

  	
  Joann
  L. Holman

  
	
   

  	
  Title:

  	
  Director

  
					



 

















 


	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:

  	
  [ILLEGIBLE]

  
	
   

  	
  Title:

  	
  Vice President

  
					



 

















 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Frank A. Pugliese

  	
   

  
	
   

  	
  Name:

  	
  Frank
  A. Pugliese

  
	
   

  	
  Title:

  	
  Senior Vice President

  
					



 

















 


	
   

  	
  NORTH FORK BUSINESSES CAPITAL CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stephen K. Goetschius

  	
   

  
	
   

  	
  Name:

  	
  Stephen
  K. Goetschius

  
	
   

  	
  Title:

  	
  Senior Vice President