Exhibit 10.1


 


EXECUTION COPY


 


 


CREDIT
AGREEMENT


 


dated as of


 


August 31, 2007


 


among


 


MYR GROUP INC.


 


The Lenders Party Hereto


 


FIFTH THIRD BANK

as Documentation Agent


 


CITIBANK, N.A.

as Syndication Agent


 


and


 


JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent


 






 


J.P. MORGAN SECURITIES INC.


and


CITIGROUP GLOBAL MARKETS INC.


as Joint Bookrunners and Joint Lead Arrangers


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Definitions

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01. Defined Terms

  	
   

  	
  1

  
	
  SECTION 1.02. Classification of Loans
  and Borrowings

  	
   

  	
  22

  
	
  SECTION 1.03. Terms Generally

  	
   

  	
  22

  
	
  SECTION 1.04. Accounting Terms; GAAP

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The Credits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01. Commitments

  	
   

  	
  23

  
	
  SECTION 2.02. Loans and Borrowings

  	
   

  	
  23

  
	
  SECTION 2.03. Requests for Borrowings

  	
   

  	
  24

  
	
  SECTION 2.04. Increase of Commitments

  	
   

  	
  24

  
	
  SECTION 2.05. Swingline Loans

  	
   

  	
  25

  
	
  SECTION 2.06. Letters of Credit.
  (a) General

  	
   

  	
  27

  
	
  SECTION 2.07. Funding of Borrowings

  	
   

  	
  31

  
	
  SECTION 2.08. Interest Elections

  	
   

  	
  31

  
	
  SECTION 2.09. Termination and Reduction
  of Commitments

  	
   

  	
  33

  
	
  SECTION 2.10. Repayment and
  Amortization of Loans; Evidence of Debt

  	
   

  	
  33

  
	
  SECTION 2.11. Prepayment of Loans

  	
   

  	
  35

  
	
  SECTION 2.12. Fees

  	
   

  	
  36

  
	
  SECTION 2.13. Interest

  	
   

  	
  37

  
	
  SECTION 2.14. Alternate Rate of
  Interest

  	
   

  	
  37

  
	
  SECTION 2.15. Increased Costs

  	
   

  	
  38

  
	
  SECTION 2.16. Break Funding Payments

  	
   

  	
  39

  
	
  SECTION 2.17. Taxes

  	
   

  	
  40

  
	
  SECTION 2.18. Payments Generally;
  Allocation of Proceeds; Sharing of Set-offs

  	
   

  	
  41

  
	
  SECTION 2.19. Mitigation Obligations;
  Replacement of Lenders

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Representations and Warranties

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01. Organization; Powers

  	
   

  	
  44

  
	
  SECTION 3.02. Authorization;
  Enforceability

  	
   

  	
  44

  
	
  SECTION 3.03. Governmental Approvals;
  No Conflicts

  	
   

  	
  44

  
	
  SECTION 3.04. Financial Condition; No
  Material Adverse Change

  	
   

  	
  44

  
	
  SECTION 3.05. Properties

  	
   

  	
  45

  



 


i

















 


 


	
  SECTION 3.06.
  Litigation and Environmental Matters

  	
   

  	
  45

  
	
  SECTION 3.07.
  Compliance with Laws and Agreements

  	
   

  	
  45

  
	
  SECTION 3.08.
  Investment Company Status

  	
   

  	
  45

  
	
  SECTION 3.09.
  Taxes

  	
   

  	
  46

  
	
  SECTION 3.10.
  ERISA

  	
   

  	
  46

  
	
  SECTION 3.11.
  Disclosure

  	
   

  	
  46

  
	
  SECTION 3.12.
  Solvency

  	
   

  	
  46

  
	
  SECTION 3.13.
  Insurance

  	
   

  	
  46

  
	
  SECTION 3.14.
  Capitalization and Subsidiaries

  	
   

  	
  47

  
	
  SECTION 3.15.
  Security Interest in Collateral

  	
   

  	
  47

  
	
  SECTION 3.16.
  Labor Disputes

  	
   

  	
  47

  
	
  SECTION 3.17.
  No Default

  	
   

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Conditions

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.
  Effective Date

  	
   

  	
  47

  
	
  SECTION 4.02.
  Each Credit Event

  	
   

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Affirmative Covenants

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.
  Financial Statements and Other Information

  	
   

  	
  50

  
	
  SECTION 5.02.
  Notices of Material Events

  	
   

  	
  51

  
	
  SECTION 5.03.
  Existence; Conduct of Business

  	
   

  	
  51

  
	
  SECTION 5.04.
  Payment of Obligations

  	
   

  	
  52

  
	
  SECTION 5.05.
  Maintenance of Properties

  	
   

  	
  52

  
	
  SECTION 5.06.
  Books and Records; Inspection Rights

  	
   

  	
  52

  
	
  SECTION 5.07.
  Compliance with Laws

  	
   

  	
  52

  
	
  SECTION 5.08.
  Use of Proceeds

  	
   

  	
  52

  
	
  SECTION 5.09.
  Insurance

  	
   

  	
  52

  
	
  SECTION 5.10.
  Casualty and Condemnation

  	
   

  	
  53

  
	
  SECTION 5.11.
  Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances

  	
   

  	
  53

  
	
  SECTION 5.12.
  Swap Agreements

  	
   

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Negative Covenants

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.
  Indebtedness

  	
   

  	
  54

  
	
  SECTION 6.02.
  Liens

  	
   

  	
  56

  
	
  SECTION 6.03.
  Fundamental Changes

  	
   

  	
  57

  
	
  SECTION 6.04.
  Investments, Loans, Advances, Guarantees and Acquisitions

  	
   

  	
  57

  
	
  SECTION 6.05.
  Asset Sales

  	
   

  	
  58

  



 


ii

















 


	
  SECTION 6.06. Sale and Leaseback
  Transactions

  	
   

  	
  59

  
	
  SECTION 6.07. Restricted Payments;
  Certain Payments of Indebtedness

  	
   

  	
  59

  
	
  SECTION 6.08. Transactions with
  Affiliates

  	
   

  	
  60

  
	
  SECTION 6.09. Restrictive Agreements

  	
   

  	
  60

  
	
  SECTION 6.10. Unaffiliated
  Subordinated Indebtedness and Amendments to Unaffiliated Subordinated 

  	
   

  	
   

  
	
  Indebtedness Documents

  	
   

  	
  61

  
	
  SECTION 6.11. Capital Expenditures

  	
   

  	
  62

  
	
  SECTION 6.12. Financial Covenants.

  	
   

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Events of Default

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The Administrative Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Miscellaneous

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01. Notices

  	
   

  	
  68

  
	
  SECTION 9.02. Waivers; Amendments

  	
   

  	
  70

  
	
  SECTION 9.03. Expenses; Indemnity;
  Damage Waiver

  	
   

  	
  71

  
	
  SECTION 9.04. Successors and Assigns

  	
   

  	
  73

  
	
  SECTION 9.05. Survival

  	
   

  	
  76

  
	
  SECTION 9.06. Counterparts;
  Integration; Effectiveness

  	
   

  	
  76

  
	
  SECTION 9.07. Severability

  	
   

  	
  76

  
	
  SECTION 9.08. Right of Setoff

  	
   

  	
  76

  
	
  SECTION 9.09. Governing Law;
  Jurisdiction; Consent to Service of Process

  	
   

  	
  77

  
	
  SECTION 9.10. WAIVER OF JURY TRIAL

  	
   

  	
  77

  
	
  SECTION 9.11. Headings

  	
   

  	
  78

  
	
  SECTION 9.12. Confidentiality

  	
   

  	
  78

  
	
  SECTION 9.13. Several Obligations;
  Nonreliance; Violation of Law

  	
   

  	
  78

  
	
  SECTION 9.14. USA PATRIOT Act

  	
   

  	
  79

  
	
  SECTION 9.15. Disclosure

  	
   

  	
  79

  
	
  SECTION 9.16. Appointment for
  Perfection

  	
   

  	
  79

  



 


iii

















 


SCHEDULES:


 


Commitment Schedule

Schedule 1.01 — Affiliated Subordinated Debt

Schedule 2.06 — Existing Letters of Credit

Schedule 3.06 — Disclosed Matters

Schedule 3.14 — Capitalization and Subsidiaries

Schedule 3.15 — Financing Statements

Schedule 6.01 — Existing Indebtedness

Schedule 6.02 — Existing Liens

Schedule 6.04 — Existing Investments


 


EXHIBITS:


 


Exhibit A
— Form of Assignment and Assumption

Exhibit B — List of Closing Documents

Exhibit C — Form of Commitment and Acceptance

Exhibit D — Form of Compliance Certificate


 


iv

















 


CREDIT AGREEMENT dated as of
August 31, 2007 (as it may be amended or modified from time to time, this “Agreement”), among MYR GROUP INC., the Lenders
party hereto, FIFTH THIRD BANK, as Documentation Agent, CITIBANK, N.A., as
Syndication Agent and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as
Administrative Agent.


 


WHEREAS, the Borrower has
requested that the Lenders establish in its favor (i) a revolving credit
facility in the aggregate principal amount of U.S. $75,000,000 (as such amount
may increase or decrease in accordance with the terms hereof), pursuant to
which revolving and swingline loans would be made to, and letters of credit
would be issued for the account of, the Borrower and (ii) a term loan
facility in the aggregate principal amount of U.S. $50,000,000, pursuant to
which a term loan would be made to the Borrower; and


 


WHEREAS, the Lenders are
willing to make such credit and loan facilities available to the Borrower on
the terms and subject to the conditions and requirements hereinafter set forth;


 


NOW, THEREFORE, in
consideration of the premises and of the mutual covenants herein contained, the
parties hereto agree as follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01.  Defined Terms.  As used in this Agreement, the following
terms have the meanings specified below:


 


“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.


 


“Adjusted
LIBO Rate” means, with respect to any Eurodollar Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.


 


“Administrative
Agent” means JPMorgan Chase Bank, National Association, in its
capacity as administrative agent for the Lenders hereunder.


 


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


 


“Affiliate”
means, with respect to a specified 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.


 


“Affiliated
Subordinated Debt” means any unsecured Indebtedness of the Borrower
or any Subsidiary provided by an Affiliate (other than the Borrower or any of
its Subsidiaries), the terms and conditions of which are set forth, and payment
of which 


 

















 


is subordinated to the payment
of the Secured Obligations, in each case as provided in Schedule 1.01.


 


“Aggregate
Credit Exposure” means, at any time, the aggregate Credit Exposure
of all the Lenders.


 


“Alternate
Base Rate” means, for any day, a rate per annum equal to the greater
of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1⁄2 of 1%.  Any change in the Alternate Base Rate due to
a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.


 


“Applicable
Percentage” means, with respect to any Lender, (a) with respect
to Revolving Loans, LC Exposure or Swingline Loans, a percentage equal to a
fraction the numerator of which is such Lender’s Revolving Commitment and the
denominator of which is the aggregate Revolving Commitment of all Revolving
Lenders (if the Revolving Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon such Lender’s share of
the aggregate Revolving Exposures at that time) and (b) with respect to
the Term Loans, a percentage equal to a fraction the numerator of which is such
Lender’s outstanding principal amount of the Term Loans and the denominator of
which is the aggregate outstanding amount of the Term Loans of all Term
Lenders.


 


“Applicable Pledge Percentage” means 100%, but
65% in the case of a pledge of Equity Interests of a Foreign Subsidiary to the
extent a 100% pledge would cause a Deemed Dividend Problem or Financial
Assistance Problem.


 


 “Applicable Rate”
means, for any day, with respect to any ABR Loan or Eurodollar Loan, or with
respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption “ABR Spread”, “Eurodollar
Spread” or “Commitment Fee Rate”, as the case may be, based upon the Borrower’s
Leverage Ratio as of the most recent determination date, provided
that until the delivery to the Administrative Agent, pursuant to Section 5.01,
of the Borrower’s consolidated financial information for the Borrower’s first
fiscal quarter ending after the Effective Date, the “Applicable Rate” shall be
the applicable rate per annum set forth below in Category 1:


 


	
  Leverage Ratio

  	
   

  	
  Eurodollar

  Spread

  	
   

  	
  ABR

  Spread

  	
   

  	
  Commitment

  Fee Rate

  	
   

  
	
  Category 1
  < 1.5 to 1.0

  	
   

  	
  1.00

  	
  %

  	
  0

  	
  %

  	
  0.20

  	
  %

  
	
  Category 2
  > 1.5 to 1.0 but < 2.0 to 1.0

  	
   

  	
  1.25

  	
  %

  	
  0

  	
  %

  	
  0.25

  	
  %

  
	
  Category 3
  > 2.0 to 1.0 but < 2.5 to 1.0

  	
   

  	
  1.50

  	
  %

  	
  0

  	
  %

  	
  0.30

  	
  %

  
	
  Category 4
  > 2.5 to 1.0

  	
   

  	
  1.75

  	
  %

  	
  0.25

  	
  %

  	
  0.375

  	
  %

  



 


2

















 


 


For purposes of the
foregoing, (a) the Applicable Rate shall be determined as of the end of
each fiscal quarter of the Borrower based upon the Borrower’s annual or
quarterly consolidated financial statements delivered pursuant to Section 5.01
and (b) each change in the Applicable Rate resulting from a change in the Leverage
Ratio shall be effective during the period commencing on and including five (5) Business
Days after the date of delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change, provided that the Leverage Ratio shall be deemed to be
in Category 4 at the option of the Administrative Agent or at the request of
the Required Lenders if the Borrower fails to deliver the annual or quarterly
consolidated financial statements required to be delivered by it pursuant to Section 5.01,
during the period from the expiration of the time for delivery thereof until
five (5) Business Days after such consolidated financial statements are
delivered.


 


“Approved
Fund” has the meaning assigned to such term in Section 9.04.


 


“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 9.04), and accepted by the Administrative Agent, in the form of
Exhibit A or any other form approved by the
Administrative Agent.


 


“Available
Revolving Commitment” means, at any time, the Revolving Commitment
then in effect minus
the Revolving Exposure of all Revolving Lenders at such time.


 


“Availability
Period” means the period from and including the Effective Date to
but excluding the earlier of the Maturity Date and the date of termination of
the Commitments.


 


“Banking
Services” means each and any of the following bank services provided
to any Loan Party by any Lender or any of its Affiliates: (a) commercial
credit cards, (b) stored value cards and (c) treasury management
services (including, without limitation, controlled disbursement, automated
clearinghouse transactions, return items, overdrafts and interstate depository
network services).


 


“Banking
Services Obligations” of the Loan Parties means any and all
obligations of the Loan Parties, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor) in connection
with Banking Services.


 


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


 


“Bonding Obligations”
means any and all obligations of the Borrower or any of its Subsidiaries to any
Person to secure or assure the performance of any bid, contract, lease or
statutory obligation, or otherwise constituting a bid, performance, return-of-money,
surety, appeal or payment bond, contract or like undertaking, in each case,
entered into by the Borrower or such Subsidiary in the ordinary course of
business.


 


“Borrower”
means MYR Group Inc., a Delaware corporation.


 


3

















 


“Borrowing”
means (a) Revolving Loans of the same Type, made, advanced, converted or
continued on the same date and, in the case of a Eurodollar Loan, as to which a
single Interest Period is in effect, (b) a Term Loan made on the same date
and, in the case of a Eurodollar Loan, as to which a single Interest Period is
in effect and (c) a Swingline Loan.


 


“Borrowing
Request” means a request by the Borrower for a Borrowing in
accordance with Section 2.03.


 


“Business
Day” means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when
used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.


 


“Capital Expenditures”
means, without duplication, any expenditure or commitment to expend money for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with GAAP.


 


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


 


“Change
in Control” means that (a) prior to the consummation by the
Borrower of a Qualifying Equity Offering (i) one or more Persons (other
than any natural person) organized for the primary purpose of acquiring and
disposing of interests in assets and properties of various types and otherwise
making debt and equity investments in other Persons and who are administered or
managed (whether as general partner, by contract, by appointment or designation
under such Person’s constitutive documents, or otherwise), directly or
indirectly, by ArcLight Capital Partners, LLC (all Persons from time to time so
administered or managed, collectively with ArcLight Capital Partners, LLC, the “ArcLight
Group”) shall collectively cease to own, directly or indirectly, greater
than 50% of the Borrower and (ii) ArcLight Group shall cease to have
Control of the Borrower; and (b) on and after the consummation by the
Borrower of a Qualifying Equity Offering, (i) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
group (within the meaning of the Securities Exchange Act of 1934 and the rules of
the Securities and Exchange Commission thereunder as in effect on the date
hereof) other than any one or more members of the ArcLight Group, of Equity
Interests representing more than 25% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower
(calculated on a fully diluted basis taking into account all options or other
rights to acquire voting common Equity Interests of the Borrower then
outstanding, regardless of whether such options or other rights are then currently
exercisable); or (ii) occupation of a majority of the seats (other than
vacant seats) on the board of directors of the Borrower by Persons who were
neither (A) nominated by the board of directors 


 


4

















 


of the Borrower or by any
member of the ArcLight Group nor (B) appointed by directors so nominated.


 


“Change
in Law” means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender
or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lender’s or the Issuing Bank’s holding
company, if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the
date of this Agreement.


 


“Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Term Loans or
Swingline Loans.


 


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


 


“Collateral”
means any and all property owned by any Loan Party, now existing or hereafter
acquired, that may at any time be or become subject to a security interest or
Lien in favor of Administrative Agent, on behalf of itself and the Holders of
Secured Obligations, to secure the Secured Obligations; provided, however, that
Collateral shall not include Excluded Assets.


 


“Collateral
Documents” means, collectively, the Security Agreement and all other
agreements, instruments and documents executed in connection with this
Agreement that are intended to create or evidence Liens on the Collateral for
the purpose of securing the Secured Obligations, including all other security
agreements, pledge agreements, loan agreements, notes, guarantees,
subordination agreements, pledges, powers of attorney, consents, assignments,
contracts, fee letters, notices, leases, financing statements and all other
written matter whether heretofore, now, or hereafter executed by the Borrower
or any of its Material Subsidiaries and delivered to the Administrative Agent.


 


“Commitment”
means, with respect to each Lender, the sum of such Lender’s Revolving
Commitment and Term Loan Commitment.  The
initial amount of each  Lender’s
Commitment is set forth on the Commitment Schedule,
or in the Assignment and Assumption or in the Commitment and Acceptance, as
applicable, pursuant to which such Lender shall have assumed its Commitment, as
applicable.  The initial aggregate amount
of the Lenders’ Commitments is $125,000,000.


 


“Commitment
Schedule” means the Schedule attached hereto identified as such.


 


“Consolidated
Availability” means, at any time, (i) Eligible Cash plus (ii) the
maximum aggregate amount of Loans and Letters of Credit that are available to
be made or issued, respectively, hereunder in accordance with the terms hereof
and without causing a Default under Section 6.12 minus (iii) the
aggregate outstanding principal amount of the Loans and all LC Exposure.


 


5

















 


“Consolidated
EBITDA” means, for any period, Net Income for such period plus (a) without
duplication and to the extent deducted in determining Net Income for such
period, the sum of (i) Interest Expense for such period, (ii) income
tax expense for such period, (iii) all amounts attributable to depreciation and
amortization expense for such period, (iv) any extraordinary non-cash
charges for such period and (v) any other non-cash charges for such period
(but excluding any non-cash charge in respect of an item that was included in
Net Income in a prior period and any non-cash charge that relates to the
write-down or write-off of inventory), minus (b) without duplication and
to the extent included in Net Income, (i) any cash payments made during
such period in respect of non-cash charges described in clause (a)(v)
taken in a prior period and (ii) any extraordinary gains and any non-cash
items of income for such period, all calculated for the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP.


 


“Consolidated Total
Assets” means, as of the date of any determination thereof, total assets of
the Borrower and its Subsidiaries calculated in accordance with GAAP on a
consolidated basis as of such date.


 


“Consolidated Total Indebtedness” means, at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its Subsidiaries at
such date, determined on a consolidated basis in accordance with GAAP.


 


 “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
Exposure” means, as to any Lender at any time, the sum of (a) such
Lender’s Revolving Exposure at such time, plus (b) an amount
equal to the aggregate principal amount of its Term Loans outstanding at such
time.


 


“Deemed Dividend Problem”
means, with respect to any Foreign Subsidiary, such Foreign Subsidiary’s
accumulated and undistributed earnings and profits being deemed to be
repatriated to the Borrower or the applicable parent Domestic Subsidiary for
U.S. federal income tax purposes and the effect of such repatriation causing
materially adverse tax consequences to the Borrower or such parent Domestic
Subsidiary, in each case as determined by the Borrower in its commercially
reasonable judgment acting in good faith and in consultation with its legal and
tax advisors.


 


“Default”
means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an
Event of Default.


 


“Disclosed
Matters” means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.


 


“Documentation Agent”
means Fifth Third Bank, in its capacity as documentation agent for the credit
facility evidenced by this Agreement.


 


6

















 


“dollars”
or “$” refers to lawful money of the United
States of America.


 


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


 


“Effective
Date” means the date on which the conditions specified in Section 4.01
are satisfied (or waived in accordance with Section 9.02).


 


“Eligible
Cash” means, at any time, the aggregate of all cash on hand and
Permitted Investments of the Borrower and each Subsidiary, in each case subject
to no Liens other than Permitted Encumbrances (excluding Bonding Obligations)
or Liens in favor of the Administrative Agent.


 


“Environmental
Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to
health and safety matters.


 


“Environmental
Liability” means any liability, contingent or otherwise (including
any liability for damages, costs of environmental remediation, fines, penalties
or indemnities), of the Borrower or any Subsidiary 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 shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants,
options or other rights entitling the holder thereof to purchase or acquire any
such equity interest.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section 414(b)
or (c) of the Code or, solely for purposes of Section 302 of ERISA
and Section 412 of the Code, is treated as a single employer under Section 414
of the Code.


 


“ERISA
Event” means (a) any “reportable event”, as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30 day notice period is waived); (b) the
existence with respect to any Plan of an “accumulated funding deficiency” (as
defined in Section 412 of the Code or Section 302 of ERISA), whether
or not waived; (c) the filing pursuant to Section 412(d) of the Code
or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under 


 


7

















 


Title IV of ERISA with respect
to the termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt
by the Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.


 


“Eurodollar”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.


 


“Event
of Default” has the meaning assigned to such term in Article VII.


 


“Excluded Assets”
means any property (x) subject to any “certificate of title” (as defined
in the UCC), (y) subject to any lease or other right-of-use agreement or
constituting a leasehold or similar interest or (z) constituting any real
property or interest therein or any “fixtures” (as defined in the UCC) related
thereto.


 


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender,
the Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction 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 of America 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 2.19(b)), any withholding tax that is imposed
on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
immediately prior to the designation of a new lending office (or to the
assignment by such Foreign Lender’s assignor), to receive additional amounts
from the Borrower with respect to such withholding tax pursuant to Section 2.17(a),
or is attributable to such Foreign Lender’s failure to comply with Section 2.17(e).


 


“Existing Letters of
Credit” is defined in Section 2.06.


 


“Extended Letter of
Credit” is defined in Section 2.06(c).


 


“Federal
Funds Effective Rate” means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received


 


8

















 


by the Administrative Agent
from three Federal funds brokers of recognized standing selected by the
Administrative Agent.


 


“Financial Assistance Problem”
means, with respect to any Foreign Subsidiary, the inability of such Foreign
Subsidiary to become a Subsidiary Guarantor or to permit its Equity Interests
from being pledged pursuant to a pledge agreement on account of legal or
financial limitations imposed by the jurisdiction of organization of such
Foreign Subsidiary or other relevant jurisdictions having authority over such
Foreign Subsidiary, in each case as determined by the Borrower in its
commercially reasonable judgment acting in good faith and in consultation with
its legal and tax advisors.


 


“Financial
Officer” means the chief financial officer, principal accounting
officer, treasurer or controller of the Borrower.


 


“First Tier Foreign
Subsidiary” means each Foreign Subsidiary with respect to which any one or
more of the Borrower and its Domestic Subsidiaries directly owns or controls
more than 50% of such Foreign Subsidiary’s issued and outstanding Equity
Interests.


 


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


 


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


 


“Funding Account”
means the deposit account of the Borrower to which the Administrative Agent is
authorized by the Borrower to transfer the proceeds of any Borrowings requested
or authorized pursuant to this Agreement.


 


“GAAP”
means generally accepted accounting principles in the United States of America.


 


“Governmental
Authority” means the government of the United States of America, any
other nation or 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.


 


“Guarantee”
of or by any Person (the “guarantor”) means
any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of
the guarantor, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such


 


9

















 


Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit
or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.


 


“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 as hazardous or toxic or as a pollutant or
contaminant pursuant to any Environmental Law.


 


“Holders of Secured Obligations” means the holders
of the Secured Obligations from time to time and includes (i) each Lender
and the Issuing Bank in respect of its Loans and LC Exposure respectively, (ii) the
Administrative Agent, the Issuing Bank and the Lenders in respect of all other
present and future obligations and liabilities of the Borrower and each other
Loan Party of every type and description arising under or in connection with
the Credit Agreement or any other Loan Document, (iii) each Lender and
Affiliate of such Lender in respect of Swap Agreements and Banking Services
entered into with such Person by the Borrower or any other Loan Party, (iv) each
indemnified party under Section 9.03 in respect of the obligations and
liabilities of the Borrower to such Person hereunder and under the other Loan
Documents, and (v) their respective successors and (in the case of a
Lender, permitted) transferees and assigns.


 


“Hostile
Acquisition” means (a) the acquisition of the Equity Interests
of a Person through a tender offer or similar solicitation of the owners of
such Equity Interests which has not been approved (prior to such acquisition)
by the board of directors (or any other applicable governing body) of such
Person or by similar action if such Person is not a corporation and (b) any
such acquisition as to which such approval has been withdrawn.


 


“Immaterial Subsidiary”
means each of the following Subsidiaries so long as each such Subsidiary is an
inactive entity with no assets or liabilities (other than arising from or
relating to past inactivity or nonuse of such Person or otherwise associated
with the dissolution of such Person): 
Col-El-Co., a Delaware corporation, Cybertol, Inc., a New York
corporation, Lemco Construction, Inc., a Delaware corporation, MFR, Inc.,
a Delaware corporation and Long Electric Company, a Michigan corporation.


 


“Indebtedness”
of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of
the deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease 


 


10

















 


Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) the
Net Mark-to-Market Exposure of such Person under each Swap Agreement to the
extent entered into for investment or speculative purposes and (l) obligations
under any liquidated earn-out.  The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Information
Memorandum” means the Confidential Information Memorandum dated July 2007
relating to the Borrower and the Transactions.


 


“Interest
Coverage Ratio” means, for any period, the ratio of (a) Consolidated
EBITDA for such period to (b) Interest Expense for such period.


 


“Interest
Election Request” means a request by the Borrower to convert or
continue a Borrowing in accordance with Section 2.08.


 


“Interest
Expense” means, with reference to any period, total interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and
its Subsidiaries for such period with respect to all outstanding Indebtedness
of the Borrower and its Subsidiaries (including all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers’
acceptance financing and net costs under Swap Agreements in respect of interest
rates to the extent such net costs are allocable to such period in accordance
with GAAP), calculated on a consolidated basis for the Borrower and its
Subsidiaries for such period in accordance with GAAP.


 


“Interest
Payment Date” means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and December and
the Maturity Date, (b) with respect to any Eurodollar Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months’ duration after the first day of such
Interest Period and the Maturity Date, and (c) with respect to any
Swingline Loan, the day that such Loan is required to be repaid and the
Maturity Date.


 


“Interest
Period” means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, in each case as the Borrower may elect; provided,
that (i) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of a Eurodollar Borrowing only, such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest
Period pertaining to a Eurodollar Borrowing that commences on the last Business



 


11

















 


Day of a calendar month (or on
a day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. 
For purposes hereof, the date of a Borrowing initially shall be the date
on which such Borrowing is made and, in the case of a Revolving Borrowing,
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.


 


“Issuing
Bank” means JPMorgan Chase Bank, National Association, in its
capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.06(i).  The Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the
Issuing Bank, in which case the term “Issuing Bank” shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.


 


“LC
Collateral Account” has the meaning assigned to such term in Section 2.06(j).


 


“LC
Disbursement” means a payment made by the Issuing Bank pursuant to a
Letter of Credit.


 


“LC
Exposure” means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed to
the Issuing Bank by or on behalf of the Borrower at such time.  The LC Exposure of any Revolving Lender at
any time shall be its Applicable Percentage of the total LC Exposure at such
time.


 


“Lenders”
means the Persons listed on the Commitment Schedule
and any other Person that shall have become a party hereto pursuant to an
Assignment and Assumption, other than any such Person that ceases to be a party
hereto pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the
term “Lenders” includes the Swingline Lender.


 


“Letter
of Credit” means any letter of credit issued pursuant to this
Agreement.


 


“Leverage
Ratio” means, on any date, the ratio of (a) Consolidated Total
Indebtedness on such date to (b) Consolidated EBITDA for the period of
four consecutive fiscal quarters ended on such date (or, if such date is not
the last day of a fiscal quarter, ended on the last day of the fiscal quarter
most recently ended prior to such date).


 


“LIBO
Rate” means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Reuters BBA Libor Rates Page 3750
(or on any successor or substitute page of such service, or any successor
to or substitute for such service, providing rate quotations comparable to
those currently provided on such page of such service, as determined by
the Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to dollar deposits in the London interbank market)
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. 
In the event that such rate is not available at such time for any
reason, then the “LIBO Rate” with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period
are offered by the principal 


 


12

















 


London office of the
Administrative Agent in immediately available funds in the London interbank market
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.


 


“Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of
such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase
option, call or similar right of a third party with respect to such securities.


 


“Loan
Documents” means this Agreement, any promissory notes issued
pursuant to this Agreement, any Letter of Credit applications, the Collateral
Documents, the Subsidiary Guaranty, and all other agreements, instruments,
documents and certificates identified in Section 4.01 executed and
delivered to, or in favor of, the Administrative Agent or any Lenders and
including all other pledges, powers of attorney, consents, assignments,
contracts, notices, letter of credit agreements and all other written matter
whether heretofore, now or hereafter executed by or on behalf of any Loan Party
and delivered to the Administrative Agent or any Lender in connection with the
Agreement or the transactions contemplated thereby.  Any reference in the Agreement or any other
Loan Document to a Loan Document shall include all appendices, exhibits or schedules
thereto, and all amendments, restatements, supplements or other modifications
thereto, and shall refer to the Agreement or such Loan Document as the same may
be in effect at any and all times such reference becomes operative.


 


“Loan
Parties” means the Borrower and the Subsidiary Guarantors.


 


“Loans”
means the loans and advances made by the Lenders pursuant to this Agreement,
including Swingline Loans.


 


“Material
Adverse Effect” means a material adverse effect on (a) the
business, assets, property or financial condition of the Borrower and the
Subsidiaries taken as a whole or (b) the rights of or benefits available
to the Administrative Agent, the Issuing Bank or the Lenders under the Loan
Documents.


 


“Material
Indebtedness” means Indebtedness (other than the Loans, any Letters
of Credit and any Affiliated Subordinated Debt), or obligations in respect of
one or more Swap Agreements, of any one or more of the Borrower and its
Subsidiaries in an aggregate principal amount exceeding $7,500,000.  For purposes of determining Material
Indebtedness, the “obligations” of the Borrower or any Subsidiary in respect of
any Swap Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Swap Agreement were terminated at such time.


 


“Material Subsidiary”
(a) as of the Effective Date, Harlan Electric Company, The L. E. Myers
Co., Hawkeye Construction, Inc., Sturgeon Electric Company, Inc., and
Great Southwestern Construction, Inc. and (b) after the Effective
Date, each Subsidiary (i) which, as of the most recent fiscal quarter of
the Borrower, for the period of four consecutive fiscal quarters 


 


13

















 


then ended, for which financial
statements have been delivered pursuant to Section 5.01, contributed
greater than five percent (5%) of the Borrower’s Consolidated EBITDA for such
period or (ii) which contributed greater than five percent (5%) of the
Borrower’s Consolidated Total Assets as of such date.


 


“Maturity
Date” means August 31, 2012 or any earlier date on which the
Revolving Commitments are reduced to zero or otherwise terminated pursuant to
the terms hereof in accordance with Article VII.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.


 


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


 


“Net Mark-to-Market
Exposure” of a Person means, as of any date of determination, the excess
(if any) of all unrealized losses over all unrealized profits of such Person
arising from Swap Agreements.  “Unrealized
losses” means the fair market value of the cost to such Person of replacing
such Swap Agreements as of the date of determination (assuming the Swap
Agreements were to be terminated as of that date), and “unrealized profits”
means the fair market value of the gain to such Person of replacing such Swap
Agreement as of the date of determination (assuming such Swap Agreement were to
be terminated as of that date).


 


“Net
Proceeds” means, with respect to any event, (a) the cash
proceeds actually received by the Borrower or any Subsidiary in respect of such
event including (i) any cash received in respect of any non-cash proceeds
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but excluding any interest payments), but only as and
when received, (ii) in the case of a casualty, insurance proceeds (net of
any deduction) and (iii) in the case of a condemnation or similar event,
condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid (or reasonably estimated to be
payable) to third parties (other than Borrower and its Subsidiaries) in
connection with such event, (ii) in the case of a sale, transfer or other
disposition of an asset (including pursuant to a sale and leaseback transaction
or a casualty or a condemnation or similar proceeding), the amount of all
payments required to be made as a result of such event to repay Indebtedness


 


14

















 


(other than Loans) secured by
such asset or otherwise subject to mandatory prepayment as a result of such
event and (iii) the amount of all taxes paid (or reasonably estimated to
be payable) and the amount of any reserves established to fund contingent
liabilities reasonably estimated to be payable, in each case during the year
that such event occurred or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in good faith by a
Financial Officer).


 


“Non-Consenting
Lender” has the meaning assigned to such term in Section 9.02(d).


 


“Obligations”
means all unpaid principal of and accrued and unpaid interest on the Loans, all
LC Exposure, all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Loan Parties to the Lenders or to any
Lender, the Administrative Agent, the  Issuing
Bank or any indemnified party arising under the Loan Documents, in each case
whether now existing or hereafter arising, whether all such obligations arise
or accrue before or after the commencement of any bankruptcy, insolvency or
receivership proceedings, including, without limitation, interest and fees
accruing pre-petition or post-petition and costs, expenses, and attorneys’ and
paralegals’ fees, whenever incurred (and whether or not such claims, interest,
costs, expenses or fees are allowed or allowable in any such proceeding).


 


“Other
Taxes” means any and 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 from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.


 


“Participant”
has the meaning set forth in Section 9.04.


 


“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.


 


“Permitted
Acquisition” means any acquisition (whether by purchase, merger,
consolidation or otherwise but excluding in any event a Hostile Acquisition) or
series of related acquisitions by the Borrower or any Subsidiary of all or
substantially all the assets of, or more than fifty percent (50%) of the Equity
Interests in, a Person or division or line of business of a Person if, at the
time of and immediately after giving effect thereto, (a) no Default has
occurred and is continuing or would arise after giving effect thereto, (b) such
Person or division or line of business is engaged in the same or a similar line
of business as the Borrower and the Subsidiaries or business reasonably related
thereto, (c) all actions required to be taken with respect to such
acquired or newly formed Subsidiary under Section 5.11 shall have been
taken, (d) the Borrower and the Subsidiaries are in compliance, on a pro
forma basis reasonably acceptable to the Administrative Agent after giving
effect to such acquisition (without giving effect to any cost savings), with
the covenants contained in Section 6.12 recomputed as of the last day of
the most recently ended fiscal quarter of the Borrower for which financial
statements are available, as if such acquisition (and any related incurrence or
repayment of Indebtedness, with any new Indebtedness being deemed to be
amortized over the applicable testing period in accordance with its terms) had
occurred on the first day of each relevant period for testing such compliance
and the Borrower shall have delivered to the Administrative Agent a certificate
of a Financial Officer 


 


15

















 


of the Borrower to such effect,
together with all relevant financial information, statements and projections
requested by the Administrative Agent, (e) in the case of an acquisition
or merger involving the Borrower or a Subsidiary, the Borrower or such
Subsidiary is the surviving entity of such merger and/or consolidation and (f) Consolidated
Availability is not less than $10,000,000.


 


“Permitted
Encumbrances” means:


 


(a)           Liens imposed by law
for taxes that are not more than 60 days past due or which can thereafter be
paid without penalty or which are being contested in compliance with Section 5.04;


 


(b)           carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s and other similar Liens imposed by law
or arising in the ordinary course of business and securing obligations that are
not overdue by more than 60 days or are being contested in compliance with Section 5.04;


 


(c)           Liens and deposits
arising in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws and
regulations;


 


(d)           Liens and deposits in
connection with Bonding Obligations;


 


(e)           judgment liens in
respect of judgments that do not constitute an Event of Default under clause (k) of
Article VII; and


 


(f)            easements, zoning
restrictions and other governmental restrictions on use, rights of way,
permits, conditions, servitudes, exceptions, covenants, restrictions and all
other encumbrances on or in respect of real property or any interest therein
that do not materially interfere with the ordinary conduct of business of the
Borrower or any Subsidiary; and


 


(g)           Liens securing the
obligations of the Borrower or any of its Subsidiaries under any leases,
right-of-use or similar agreement (but only with respect to the property so
leased or used) that do not constitute Capital Lease Obligations;




provided that
the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.


 


“Permitted
Investments” means:


 


(a)           direct obligations of,
or obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United
States of America), in each case maturing within one year from the date of
acquisition thereof;


 


16

















 


(b)           investments in
commercial paper maturing within 270 days from the date of acquisition thereof
and having, at such date of acquisition, the highest credit rating obtainable
from S&P or from Moody’s;


 


(c)           investments in
certificates of deposit, banker’s acceptances and time deposits maturing within
180 days from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any domestic
office of any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000;


 


(d)           fully collateralized
repurchase agreements with a term of not more than 30 days for securities
described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above; and


 


(e)           money market funds that
(i) comply with the criteria set forth in Securities and Exchange
Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are
rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of
at least $5,000,000,000.


 


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


 


“Plan”
means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.


 


“Pledge Subsidiary”
means each Domestic Subsidiary (other than Parkway on the Lake, Inc., a
Michigan corporation and each Immaterial Subsidiary) and First Tier Foreign
Subsidiary which is, in each case, a direct Subsidiary of the Borrower or a
direct Subsidiary of a Material Subsidiary.


 


“Prepayment
Event” means:


 


(a)           any sale, transfer or
other disposition (including pursuant to a sale and leaseback transaction) of
any property or asset of the Borrower or any Subsidiary, other than
dispositions described in Section 6.05; provided, that any sale, transfer
or other disposition associated with any event described in clause (b) below
shall be subject to the terms and conditions of such clause (b); or


 


(b)           any casualty or other
insured damage to, or any taking under power of eminent domain or by
condemnation or similar proceeding of, any property or asset of the Borrower or
any Subsidiary that results in the Borrower or such Subsidiary receiving Net
Proceeds in respect of such property or asset equal to or greater than
$5,000,000; or


 


17

















 


(c)           the issuance by the
Borrower of any Equity Interests, or the receipt by the Borrower of any capital
contribution; in either case pursuant to an initial public offering of the
Borrower’s Equity Interests or other public offering of Equity Interests
registered pursuant to the Securities Act of 1933, or any offering pursuant to Rule 144A
of the Securities and Exchange Commission or any private placement of Equity
Interests of the Borrower to other than an existing holder thereof, but only to
the extent necessary to reduce, on a pro forma basis, the Leverage Ratio to
less than or equal to 2.0 to 1.0; or


 


(d)           the incurrence by the
Borrower or any Subsidiary of any Indebtedness (other than Loans), other than
Indebtedness permitted under Section 6.01 or permitted by the Required
Lenders pursuant to Section 9.02.


 


“Prime
Rate” means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank, National Association as its prime rate at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.


 


“Projections”
has the meaning assigned to such term in Section 5.01(f).


 


“Qualifying
Equity Offering” means any initial public offering, or other public
offering, registered pursuant to an effective registration statement (other
than a registration statement on Form S-8 or any substantially similar or
successor form) in accordance with the Securities Act of 1933 (as amended, and
including the rules and regulations promulgated thereunder) or any
offering pursuant to Rule 144A of the Securities and Exchange Commission
or any private placement, in each case of voting common Equity Interests of the
Borrower pursuant to which ArcLight Group ceases to have Control of the
Borrower.


 


“Register”
has the meaning set forth in Section 9.04.


 


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


 


“Required
Lenders” means, at any time, Lenders having Credit Exposure and
unused Commitments representing 662/3% or more of the sum of the total Credit
Exposure and unused Commitments at such time.


 


“Requirement
of Law” means, as to any Person, the Certificate of Incorporation
and By Laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.


 


“Restricted
Payment” means (i) any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
the Borrower or any Subsidiary, or (ii) any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such Equity Interests in the Borrower or any option,
warrant or


 


18

















 


other right to acquire any such
Equity Interests in the Borrower or (iii) any payment in respect of
Affiliated Subordinated Debt.


 


“Revolving
Commitment” means, with respect to each Lender, the commitment, if
any, of such Lender to make Revolving Loans and to acquire participations in
Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum possible aggregate amount of such Lender’s Revolving Exposure
hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.09, (b) increased from time to time pursuant to
Section 2.04 and (c) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04.  The initial aggregate amount of the Lenders’
Revolving Commitments is $75,000,000.


 


“Revolving
Exposure” means, with respect to any Lender at any time, the
sum  at such time, without duplication,
of (i) the outstanding principal amount of such Lender’s Revolving Loans
and its LC Exposure, and (ii) an amount equal to its Applicable Percentage
of the aggregate principal amount of Swingline Loans.


 


“Revolving
Lender” means, as of any date of determination, a Lender with a
Revolving Commitment or, if the Revolving Commitments have terminated or
expired, a Lender with Revolving Exposure.


 


“Revolving
Loan” means a Loan made pursuant to Section 2.01(a).


 


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


 


“Secured
Obligations” means all Obligations, together with all Swap
Obligations and Banking Services Obligations owing to one or more Lenders or
their respective Affiliates, in each case whether now existing or hereafter
arising, whether all such obligations arise or accrue before or after the
commencement of any bankruptcy, insolvency or receivership proceedings,
including, without limitation, interest and fees accruing pre-petition or
post-petition and costs, expenses, and attorneys’ and paralegals’ fees,
whenever incurred (and whether or not such claims, interest, costs, expenses or
fees are allowed or allowable in any such proceeding).


 


“Security
Agreement” means that certain Pledge and Security Agreement
(including any and all supplements thereto), dated as of the date hereof,
between the Loan Parties and the Administrative Agent, for the benefit of the
Administrative Agent and the other Holders of Secured Obligations, and any
other pledge or security agreement entered into, after the date of this Agreement
by any other Loan Party (as required by this Agreement or any other Loan
Document), or any other Person, as the same may be amended, restated or
otherwise modified from time to time.


 


“Statutory
Reserve Rate” means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board).  Such


 


19














 


reserve
percentages shall include those imposed pursuant to such Regulation D.  Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation.  The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.


 


“subsidiary”
means, with respect to any Person (the “parent”)
at any date, any other Person (other than a natural person) the accounts of
which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other Person (a) of
which securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent
or by the parent and one or more subsidiaries of the parent.


 


“Subsidiary”
means any subsidiary of the Borrower.


 


“Subsidiary
Guarantor” means each Material Subsidiary that becomes a party to a
Subsidiary Guaranty (including pursuant to a joinder or supplement thereto).


 


“Subsidiary
Guaranty” means that certain Guaranty dated as of the Effective Date
(including any and all supplements thereto) and executed by each Subsidiary
Guarantor, and any other guaranty agreements as are requested by the
Administrative Agent and its counsel, in each case as amended, restated,
supplemented or otherwise modified from time to time.


 


“Swap
Agreement” means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.


 


“Swap
Obligations” of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all
Swap Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Swap Agreement transaction.


 


“Swingline
Lender” means JPMorgan Chase Bank, National Association, in its
capacity as lender of Swingline Loans hereunder.


 


“Swingline
Loan” means a Loan made pursuant to Section 2.05.


 


20

















 


“Syndication
Agent” means Citibank, N.A., in its capacity as syndication agent
for the credit facility evidenced by this Agreement.


 


“Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.


 


“Term
Lenders” means, as of any date of determination, Lenders having a
Term Loan Commitment.


 


“Term
Loan Commitment” means (a) as to any Term Lender, the aggregate
commitment of such Term Lender to make Term Loans as set forth in the Commitment
Schedule or in the most recent Assignment Agreement executed by
such Term Lender or pursuant to Section 2.04 hereof and (b) as
to all Term Lenders, the aggregate commitment of all Term Lenders to make Term
Loans, which aggregate commitment shall be $50,000,000 on the date of this
Agreement.  After advancing the Term
Loan, each reference to a Term Lender’s Term Loan Commitment shall refer to
that Term Lender’s Applicable Percentage of the Term Loans.


 


“Term
Loans” means the term loans or incremental term loans extended by
the Lenders to the Borrower pursuant to Section 2.01(b) or
Section 2.04 hereof.


 


“Transactions”
means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans and other credit extensions, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.


 


“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBO Rate or the Alternate Base Rate.


 


“UCC”
means the Uniform Commercial Code as in effect from time to time in the State
of New York or any other state the laws of which are required to be applied in
connection with the issue of perfection of security interests.


 


“Unaffiliated Subordinated Indebtedness” of the
Borrower or any Subsidiary means any Indebtedness of such Person the payment of
which is subordinated to payment of the Secured Obligations to the written
satisfaction of, and the terms and conditions of which are otherwise
satisfactory to, the Administrative Agent.


 


“Unaffiliated Subordinated
Indebtedness Documents” means any document, agreement or instrument
evidencing any Subordinated Indebtedness or entered into in connection with any
Unaffiliated Subordinated Indebtedness.


 


“Unliquidated
Obligations” means, at any time, any Secured Obligations (or portion
thereof) that are contingent in nature or unliquidated at such time, including
any Secured Obligation that is: (i) an obligation to reimburse a bank for
drawings not yet made under a letter of credit issued by it; (ii) any
other obligation (including any guarantee) that is contingent in nature at such
time; or (iii) an obligation to provide collateral to secure any of the
foregoing types of obligations.


 


21

















 


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


 


SECTION 1.02.  Classification of
Loans and Borrowings.  For
purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and
Type (e.g., a “Eurodollar Revolving Loan”).  Borrowings also may be classified and
referred to by Class (e.g., a “Revolving
Borrowing”) or by Type (e.g., a “Eurodollar
Borrowing”) or by Class and Type (e.g.,
a “Eurodollar Revolving Borrowing”).


 


SECTION 1.03.  Terms Generally.  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 (a) any
definition of or reference to any agreement, instrument or other document
herein 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), (b) any reference herein to any Person shall be construed
to include such Person’s successors and assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) 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.


 


SECTION 1.04.  Accounting Terms;
GAAP.  Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if
the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until  such notice shall have
been withdrawn or such provision  amended
in accordance herewith.


 


22





















 


ARTICLE II


 


The
Credits


 


SECTION 2.01.  Commitments.  Subject to the terms and conditions set forth
herein, (a) each Revolving Lender agrees to make Revolving Loans to the
Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in (i) such Lender’s Revolving
Exposure exceeding such Lender’s Revolving Commitment or (ii) the total
Revolving Exposures exceeding the sum of the total Revolving Commitments and (b) each
Term Lender agrees to make a Term Loan to the Borrower on the Effective Date,
in an amount equal to such Lender’s Term Loan Commitment by making immediately
available funds available to the Administrative Agent’s designated account, not
later than the time specified by the Administrative Agent.  Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.  Amounts prepaid
or repaid in respect of Term Loans may not be reborrowed.


 


SECTION 2.02.  Loans and Borrowings.  (a) Each Loan (other than a Swingline
Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and
Type made by the Lenders ratably in accordance with their respective
Commitments of the applicable Class. 
Any  Swingline Loan shall be made
in accordance with the procedures set forth in Section 2.05.  The Term Loans shall amortize as set forth in
Section 2.10.


 


(b)           Subject to Section 2.14,
each Revolving Borrowing and Term Loan Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans as the Borrower may request in accordance
herewith, provided that all Revolving Borrowings
made on the Effective Date must be made as ABR Borrowings but may be converted
into Eurodollar Borrowings in accordance with Section 2.08.  Each Swingline Loan shall be an ABR
Loan.  Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided
that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.


 


(c)           At the commencement of each
Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an
aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000.  At the time that each ABR Borrowing is made,
such Borrowing shall be in an aggregate amount that is an integral multiple of
$50,000 and not less than $500,000; provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments or that is
required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e).
 Each Swingline Loan shall be in an
amount that is an integral multiple of $5,000 and not less than $50,000.  Borrowings of more than one Type and Class may
be outstanding at the same time; provided, however, that there
shall not at any time be more than a total of eight (8) Eurodollar
Borrowings outstanding.


 


(d)           Notwithstanding any other
provision of this Agreement, the Borrower shall not be entitled to request, or
to elect to convert or continue, any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.


 


23





















 


SECTION 2.03.  Requests for
Borrowings.  To request a
Borrowing, the Borrower shall notify the Administrative Agent of such request
either in writing (delivered by hand or telecopy) in a form approved by the
Administrative Agent and signed by the Borrower or by telephone (a) in the
case of a Eurodollar Borrowing, not later than 10:00 a.m., Chicago time,
three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 10:00 a.m., Chicago time, on
the date of the proposed Borrowing; provided
that any such notice of an ABR Revolving Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.06(e) may be given
not later than 9:00 a.m., Chicago time, on the date of the proposed
Borrowing.  Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the Borrower.  Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:


 


(i)            the aggregate
amount of the requested Borrowing;


 


(ii)           the date of
such Borrowing, which shall be a Business Day;


 


(iii)          whether such
Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and


 


(iv)          in the case of
a Eurodollar Borrowing, the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term “Interest
Period.”


 


If no election as to the
Type of Borrowing is specified, then the requested Revolving Borrowing shall be
an ABR Borrowing.  If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month’s
duration.  Promptly following receipt of
a Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.


 


SECTION 2.04.  Increase of
Commitments.  At any time, but
not more than five (5) times during the term of this Agreement, the
Borrower may request that the aggregate of the Commitments (the “Aggregate Commitment”)
be increased by increasing the Revolving Commitments and/or obtaining
incremental Term Loans hereunder; provided
that (i) the Aggregate Commitment shall at no time exceed $175,000,000 and
(ii) each such request shall be in a minimum amount of $5,000,000.  Any such incremental Term Loans (A) shall
rank pari passu in right of payment and of security with the Revolving Loans
and all other Term Loans, (B) shall not mature earlier than the Maturity
Date, (C) shall not have a weighted average life that is shorter than the
then-remaining weighted average life of the initial Term Loans, and (D) shall
be otherwise treated substantially the same as (and in any event no more
favorably than) the other Term Loans (in each case, including with respect to pricing
and mandatory and voluntary prepayments). 
Each such request shall be made in a written notice given to the
Administrative Agent and the Lenders by the Borrower not less than ten (10) Business
Days prior to the proposed effective date of such increase, which notice (a “Commitment Increase Notice”) shall specify the
amount of the proposed increase in the Aggregate Commitment, whether such 


 


24





















 


increase is to be allocated to the Revolving
Commitments and/or incremental Term Loans and the proposed effective date of
such increase.  The Borrower may notify
the Administrative Agent of any financial institution that shall have agreed to
become a “Lender” party hereto (a “Proposed New Lender”)
in connection with the Commitment Increase Notice and any Proposed New Lender
shall be consented to by the Administrative Agent (which consent shall not be
unreasonably withheld or delayed).  The
Administrative Agent shall notify the Borrower, the Lenders and any Proposed
New Lender on or before the Business Day immediately prior to the proposed effective
date of the amount of each Lender’s and Proposed New Lender’s Revolving Commitment
and/or incremental Term Loan commitment (collectively, the “Effective Commitment Amount”) and the amount of
the Aggregate Commitment, which amount shall be effective on the following
Business Day.  Any increase in the
Aggregate Commitment shall be subject to the following conditions precedent: (A) as
of the date of the Commitment Increase Notice and as of the proposed effective
date of the increase in the Aggregate Commitment, all representations and
warranties under Article III shall be true and correct in all material
respects as though made on such date (except to the extent that any such
representation or warranty relates solely to any earlier date, in which case it
should have been true and correct in all material respects as of such earlier
date) and no event shall have occurred and then be continuing which constitutes
a Default, (B) the Borrower, the Administrative Agent and each Proposed
New Lender or Lender that shall have agreed to provide a “Revolving Commitment”
or incremental Term Loans in support of such increase in the Aggregate Commitment
shall have executed and delivered a “Commitment and Acceptance” substantially
in the form of Exhibit C, (C) counsel for the Borrower shall have
provided to the Administrative Agent supplemental opinions in form and
substance reasonably satisfactory to the Administrative Agent, (D) the
Borrower and each Proposed New Lender shall otherwise have executed and
delivered such other instruments and documents that the Administrative Agent
shall have reasonably requested in connection with such increase and (E) the
Administrative Agent shall have administered the reallocation of the Credit Exposures
on the effective date of such increase ratably among the Lenders (including new
Lenders) after giving effect to such increase. 
The Borrower hereby agrees to compensate each Lender for all losses,
expenses and liabilities incurred by such Lender in connection with the sale
and assignment of any Eurodollar Loan hereunder on the terms and in the manner
as set forth in Section 2.16 hereof. Upon satisfaction of the conditions
precedent to any increase in the Aggregate Commitment, the Administrative Agent
shall promptly advise the Borrower and each Lender of the effective date of
such increase.  Upon the effective date
of any increase in the Aggregate Commitment that is supported by a Proposed New
Lender, such Proposed New Lender shall be a party to this Agreement as a Lender
and shall have the rights and obligations of a Lender hereunder.  Nothing contained herein shall constitute, or
otherwise be deemed to be, a commitment on the part of any Lender to increase
its Revolving Commitment or provide incremental Term Loans at any time.


 


SECTION 2.05.  Swingline Loans.  (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $15,000,000
or (ii) the sum of the total Revolving Exposures exceeding the total Revolving
Commitments; provided that the Swingline
Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan.  Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and 


 


25





















 


reborrow Swingline Loans.  To request a Swingline Loan, the Borrower
shall notify the Administrative Agent of such request by telephone (confirmed
by telecopy), not later than 11:00 a.m., Chicago time, on the day of a
proposed Swingline Loan.  Each such
notice shall be irrevocable and shall specify the requested date (which shall
be a Business Day) and amount of the requested Swingline Loan.  The Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Borrower.  The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the Funding
Account (or, in the case of a Swingline Loan made to finance the reimbursement
of an LC Disbursement as provided in Section 2.06(e), by remittance to the
Issuing Bank, and in the case of repayment of another Loan or fees or expenses
as provided by Section 2.18(c), by remittance to the Administrative Agent
to be distributed to the Lenders) by 2:00 p.m., Chicago time, on the
requested date of such Swingline Loan.


 


(b)           The Swingline Lender may by
written notice given to the Administrative Agent not later than 9:00 a.m.,
Chicago time, on any Business Day require the Revolving Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding.  Such notice shall specify
the aggregate amount of Swingline Loans in which Revolving Lenders will
participate.  Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each
Revolving Lender, specifying in such notice such Lender’s Applicable Percentage
of such Swingline Loan or Loans.  Each
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account
of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline
Loan or Loans.  Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. 
Each Revolving Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner
as provided in Section 2.07 with respect to Loans made by such Lender (and
Section 2.07 shall apply, mutatis  mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Revolving Lenders.  The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender
from the Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Revolving Lenders that shall have
made their payments pursuant to this paragraph and to the Swingline Lender, as
their interests may appear; provided that any such payment so remitted shall be
repaid to the Swingline Lender or to the Administrative Agent, as applicable,
if and to the extent such payment is required to be refunded to the Borrower
for any reason.  The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.


 


26





















 


(c)           Upon the making of a
Swingline Loan (whether before or after the occurrence of a Default), each Revolving
Lender shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably purchased from the Swingline Lender without
recourse or warranty, an undivided interest and participation in such Swingline
Loan in proportion to its Applicable Percentage of the Revolving Commitment.  The Swingline Lender may, at any time,
require the Revolving Lenders to fund their participations.  From and after the date, if any, on which any
Revolving Lender is required to fund its participation in any Swingline Loan
purchased hereunder, the Administrative Agent shall promptly distribute to such
Lender, such Lender’s Applicable Percentage of all payments of principal and
interest and all proceeds of Collateral received by the Administrative Agent in
respect of such Loan.


 


SECTION 2.06.  Letters of Credit.
(a) General.  Subject to the terms and conditions set forth
herein, the Issuing Bank agrees to issue, amend, extend and renew, at any time
and from time to time during the Availability Period, at the request of the
Borrower, in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank, one or more Letters of Credit for the Borrower’s account having
an amount available for draw that will not result in the total Revolving
Exposures exceeding the sum of the total Revolving Commitments of all
Lenders.  In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.  The letters of
credit previously issued and identified on Schedule 2.06 (the “Existing
Letters of Credit”) shall be deemed to be “Letters of Credit” issued on the
Effective Date for all purposes of the Loan Documents.


 


(b)           Notice of
Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter of Credit),
the Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c) of
this Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit.  If requested by the Issuing Bank, the
Borrower also shall submit a letter of credit application on the Issuing Bank’s
standard form in connection with any request for a Letter of Credit.  A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension, the
total Revolving Exposures shall not exceed the total Revolving Commitments.


 


(c)           Expiration Date.  Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and (ii) the
date that is five Business Days prior to the Maturity Date; provided that, 


 


27





















 


upon the Borrower’s request, any such Letter
of Credit which expires in the final year prior to the Maturity Date may have a
later expiry date if cash collateralized or covered by standby letter(s) of
credit in compliance with Section 2.06(j) below (each such Letter of
Credit, an “Extended Letter of Credit”).


 


(d)           Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Revolving Lenders, the
Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender
hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such Lender’s Applicable Percentage of the aggregate amount available
to be drawn under such Letter of Credit. 
In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender’s
Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason.  Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.


 


(e)           Reimbursement.  If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 11:00 a.m., Chicago time, on the date
that such LC Disbursement is made, if the Borrower shall have received notice
of such LC Disbursement prior to 9:00 a.m., Chicago time, on such date,
or, if such notice has not been received by the Borrower prior to such time on
such date, then not later than 11:00 a.m., Chicago time, on the Business
Day immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that the Borrower may request in
accordance with Section 2.03 or 2.05 that such payment be financed with an
ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to the
extent so financed, the Borrower’s obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing or Swingline
Loan.  If the Borrower fails to make such
payment when due, the Administrative Agent shall notify each Revolving Lender
of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice,
each Revolving Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07
shall apply, mutatis  mutandis,
to the payment obligations of the Revolving Lenders provided that such payment
shall be payable by no later than 12:00 noon Chicago time), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Revolving Lenders. 
Promptly following receipt by the Administrative Agent of any payment
from the Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Revolving
Lenders have made payments pursuant to this paragraph to reimburse the Issuing
Bank, then to such Lenders and the Issuing 


 


28





















 


Bank as their interests may appear.  Any payment made by a Revolving Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.


 


(f)            Obligations
Absolute.  The
Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable, and shall
be performed strictly in accordance with the terms of this Agreement under any
and all circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit or this Agreement, or any
term or provision therein, (ii) any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment
by the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower’s obligations hereunder. 
Neither the Administrative Agent, the Revolving Lenders nor the Issuing
Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank; provided that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank’s
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct on the part of the
Issuing Bank, the Issuing Bank shall be deemed to have exercised care in each
such determination.  In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


 


(g)           Disbursement
Procedures.  The Issuing
Bank shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit.  The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the Issuing Bank has made or will make an
LC Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the Borrower
of its obligation to reimburse the Issuing Bank and the Revolving Lenders with
respect to any such LC Disbursement.


 


29





















 


(h)           Interim
Interest.  If the
Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall
reimburse such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that
the Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to ABR Revolving Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section, then Section 2.13(d) shall
apply.  Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Revolving Lender pursuant to
paragraph (e) of this Section to reimburse the Issuing Bank shall be
for the account of such Lender to the extent of such payment.


 


(i)            Replacement of
the Issuing Bank.  The
Issuing Bank may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank.  The Administrative Agent
shall notify the Revolving Lenders of any such replacement of the Issuing
Bank.  At the time any such replacement
shall become effective, the Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.12(b).  From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require.  After the replacement of an
Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional Letters of
Credit.


 


(j)            Cover.  If (x) any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Required 
Lenders (or, if the maturity of the Loans has been accelerated,
Revolving Lenders with LC Exposure representing greater than 50% of the total
LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph or (y) the Borrower requests the issuance of an Extended Letter
of Credit, the Borrower shall either (A) cover by arranging for the
issuance of one or more standby letters of credit issued by an issuer, and
otherwise on terms and conditions, satisfactory to the Administrative Agent or (B) deposit
in an account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Revolving Lenders (the “LC
Collateral Account”), an amount in cash equal to 105% of the LC
Exposure in respect of such Extended Letter of Credit (in the case of the
foregoing clause (y)) or in the aggregate (in the case of the foregoing clause
(x)) as of such date plus accrued and unpaid interest thereon; provided that the obligation to provide such
letter of credit cover or deposit such cover or cash collateral shall (1) be
required by no later than five (5) Business Days prior to the Maturity
Date in the case of an Extended Letter of Credit and (2) become effective
immediately, and such cover or deposit shall become immediately due and payable,
without demand or other notice of any kind, upon the occurrence of any Event of
Default with respect to the Borrower described in clause (h) or (i) of
Article VII.  Such cover and deposit
shall be held by the Administrative Agent as collateral for the payment and
performance of the Secured Obligations. 
The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account 


 


30





















 


and the Borrower hereby grants the
Administrative Agent a security interest in the LC Collateral Account.  Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the Borrower’s risk and
expense, such deposits shall not bear interest. 
Interest or profits, if any, on such investments shall accumulate in
such account.  Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing Bank for
LC Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Revolving Lenders with LC
Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other Secured Obligations.  If
the Borrower is required to provide an amount of letter of credit cover or cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all such Defaults have been cured or
waived.


 


SECTION 2.07.  Funding of
Borrowings.  (a) Each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 11:00 a.m.,
Chicago time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders in an amount equal
to such Lender’s Applicable Percentage; provided
that, Term Loans shall be made as provided in Section 2.01(b) and
2.02(b) and Swingline Loans shall be made as provided in Section 2.05.  The Administrative Agent will make such Loans
available in immediately available funds to the Borrower by promptly crediting
the amounts so received, in like funds, to the Funding Account; provided that ABR Revolving Loans made to finance
the reimbursement of an LC Disbursement as provided in Section 2.06(e) shall
be remitted by the Administrative Agent to the Issuing Bank.


 


(b)           Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of
any 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 paragraph (a) of this Section 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 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 (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans.  If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.  Nothing in this paragraph (b) shall be
deemed to relieve any Lender from any obligation to fund any Loans in
accordance with the terms and conditions hereunder or to prejudice any rights
which the Borrower may have against any Lender as a result of any default by
such Lender hereunder.


 


SECTION 2.08.  Interest Elections.  (a) Each Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a
Eurodollar Borrowing, 


 


31





















 


shall have an initial Interest Period as
specified in such Borrowing Request. 
Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this
Section.  The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.  This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.


 


(b)           To make an election pursuant
to this Section, the Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be required
under Section 2.03 if the Borrower were requesting a Borrowing of the Type
resulting from such election to be made on the effective date of such
election.  Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.


 


(c)           Each telephonic and written
Interest Election Request shall specify the following information in compliance
with Section 2.02:


 


(i)            the Borrowing
to which such Interest Election Request applies and, if different options are
being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);


 


(ii)           the effective
date of the election made pursuant to such Interest Election Request, which
shall be a Business Day;


 


(iii)          whether the
resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and


 


(iv)          if the
resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”.


 


If any such Interest
Election Request requests a Eurodollar Borrowing but does not specify an Interest
Period, then the Borrower shall be deemed to have selected an Interest Period
of one month’s duration.


 


(d)           Promptly following receipt
of an Interest Election Request, the Administrative Agent shall advise each
Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.


 


(e)           If the Borrower fails to
deliver a timely Interest Election Request with respect to a Eurodollar
Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing.  Notwithstanding any contrary provision 


 


32





















 


hereof, if an Event of Default has occurred
and is continuing and the Administrative Agent, at the request of the Required
Lenders, so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Borrowing may be converted to or continued
as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.


 


SECTION 2.09.  Termination and
Reduction of Commitments.  (a) Unless
previously terminated, (i) the Term Loan Commitments shall terminate at 4:00 p.m.
Chicago time, on the Effective Date and (ii) all other Commitments shall
terminate on the Maturity Date.


 


(b)           The Borrower may at any time
terminate the Revolving Commitments upon (i) the payment in full of all
outstanding Loans, together with accrued and unpaid interest thereon and on any
Letters of Credit, (ii) the cancellation and return of all outstanding
Letters of Credit (or alternatively, with respect to each such Letter of
Credit, the furnishing to the Administrative Agent of a cash deposit (or at the
discretion of the Administrative Agent a back up standby letter of credit
satisfactory to the Administrative Agent) equal to 105% of the LC Exposure as
of such date), (iii) the payment in full of the accrued and unpaid fees,
and (iv) the payment in full of all reimbursable expenses and other
Obligations together with accrued and unpaid interest thereon.


 


(c)           The Borrower
may at any time and from time to time reduce the Revolving Commitments; provided that (i) each reduction of the Revolving
Commitments shall be in an amount that is an integral multiple of $100,000 and
not less than $1,000,000.


 


(d)           The Borrower
shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Commitments under paragraph (b) or (c) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Borrower
pursuant to this Section shall be irrevocable; provided
that a notice of termination of the Revolving Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.  Any termination or reduction of the Revolving
 Commitments shall be permanent.  Each reduction of the Commitments shall be
made ratably among the Lenders in accordance with their respective Commitments.


 


SECTION 2.10.  Repayment and
Amortization of Loans; Evidence of Debt.  (a)The Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the account of each Revolving
Lender the then unpaid principal amount of each Revolving Loan on the Maturity
Date, and (ii) to the Swingline Lender the then unpaid principal amount of
each Swingline Loan on the earlier of the Maturity Date and the first date
after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least five Business Days after such Swingline Loan is made; provided that on each date that a Revolving Loan
is made, the Borrower shall repay all Swingline Loans then outstanding.  The Borrower shall repay Term Loans on each
date set forth below (subject to adjustment pursuant to Section 2.18(a))
in the 


 


33





















 


aggregate principal amount set forth opposite
such date (as adjusted from time to time pursuant to Section 2.11(d)):


 


	
  Date

  	
   

  	
  Amount

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  625,000

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  625,000

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  625,000

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  625,000

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  1,250,000

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  1,250,000

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  1,250,000

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  1,250,000

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  1,250,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  1,250,000

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  1,250,000

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  1,250,000

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  1,250,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  1,250,000

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  1,250,000

  	
   

  



 


To the extent not previously
paid, all unpaid Term Loans shall be paid in full in cash by the Borrower on
the Maturity Date.


 


(b)           Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.


 


(c)           The Administrative Agent
shall maintain accounts in which it shall record (i) the amount of each
Loan made hereunder, the Class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof.


 


(d)           The entries made in the
accounts maintained pursuant to paragraph (b) or (c) of this Section shall
be prima  facie
evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance with the
terms of this Agreement.


 


(e)           Any Lender may request that
Loans made by it be evidenced by a promissory note.  In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times 


 


34





















 


(including after assignment pursuant to Section 9.04)
be represented by one or more promissory notes in such form payable to the
order of the payee named therein (or, if such promissory note is a registered
note, to such payee and its registered assigns).


 


SECTION 2.11.  Prepayment of Loans.  (a) The Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in part,
without premium or penalty (except for break funding payments in accordance
with Section 2.16), subject to prior notice in accordance with paragraph (d) of
this Section.


 


(b)           In the event and on each
occasion that any Net Proceeds are received by or on behalf of the Borrower or
any of its Subsidiaries in respect of any Prepayment Event, the Borrower shall,
within five (5) Business Days following the date such Net Proceeds are received,
prepay the Obligations as set forth in Section 2.11(d) below in an
aggregate amount equal to 100% of such Net Proceeds, provided
that, in the case of any event described in clause (a) or (b) of the
definition of the term “Prepayment Event” that would otherwise require a
prepayment to be made pursuant to this Section 2.11(b), if the Borrower
shall deliver to the Administrative Agent a certificate of a Financial Officer
to the effect that the Borrower or its relevant Subsidiary intends to apply the
Net Proceeds from such event (or a portion thereof specified in such
certificate), within 90 days after receipt of such Net Proceeds, to acquire (or
replace or rebuild) real property, equipment or other tangible assets
(excluding inventory) to be used in the business of the Borrower and/or its
Subsidiaries, and certifying that no Default has occurred and is continuing,
then no prepayment shall be required pursuant to this paragraph in respect of
the Net Proceeds specified in such certificate; provided
further that to the extent of any such Net Proceeds therefrom that
have not been so applied by the end of such 90 day period, at which time a
prepayment shall be required in an amount equal to such Net Proceeds that have
not been so applied; provided, further that the Borrower shall not be permitted
to make elections to use Net Proceeds to acquire (or replace or rebuild) real
property, equipment or other tangible assets (excluding inventory) with respect
to Net Proceeds in any fiscal year in an aggregate amount in excess of $7,500,000.


 


(c)           All amounts to be prepaid pursuant
to Section 2.11(b) shall be applied to prepay the Term Loans.  Any prepayment of Term Loans pursuant to Section 2.11(a) or
2.11(b) shall be applied, if so elected by the Borrower so long as no
Event of Default is then continuing, ratably to remaining installments of principal
of the Term Loans, and otherwise in inverse order of maturity of the Term Loans.


 


(d)           The Borrower shall notify
the Administrative Agent (and, in the case of prepayment of a Swingline Loan,
the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not
later than 10:00 a.m., Chicago time, three Business Days before the date
of prepayment, (ii) in the case of prepayment of an ABR Borrowing, not
later than 10:00 a.m., Chicago time, one Business Day before the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not
later than 11:00 a.m., Chicago time, on the date of prepayment.  Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional
notice of termination of the Commitments as contemplated by Section 2.09,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance 


 


35





















 


with Section 2.09.  Promptly following receipt of any such notice
relating to a Borrowing, the Administrative Agent shall advise the Lenders of
the contents thereof.  Each partial
prepayment of any Borrowing shall be in an amount that would be permitted in
the case of an advance of a Borrowing of the same Type as provided in Section 2.02.  Each prepayment of a Revolving Borrowing
shall be applied ratably to the Revolving Loans included in the prepaid
Borrowing, and each prepayment of a Term Loan Borrowing shall be applied in accordance
with the terms hereof, and in each case, any such prepayments shall be
accompanied by (i) accrued interest to the extent required by Section 2.13
and (ii) break funding payments pursuant to Section 2.16.


 


SECTION 2.12.  Fees.  (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Revolving Lender a commitment fee, which shall
accrue at the Applicable Rate on the average daily amount of the Available Revolving
Commitment of such Revolving Lender during the period from and including the Effective
Date to but excluding the date on which the Lenders’ Revolving Commitments
terminate.  Accrued commitment fees shall
be payable in arrears on the last day of each March, June, September and December and
on the date on which the Revolving Commitments terminate, commencing on the
first such date to occur after the date hereof. 
All commitment fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). 
Swingline Loans shall not be included in Revolving Exposure in
determining the Available Revolving Commitment for the purpose of calculating
the commitment fee due hereunder.


 


(b)           The Borrower agrees to pay (i) to
the Administrative Agent for the account of each Revolving Lender a
participation fee with respect to its participations in Letters of Credit,
which shall accrue at the same Applicable Rate used to determine the interest
rate applicable to Eurodollar Revolving Loans on the average daily amount of
such Lender’s LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender’s Revolving
Commitment terminates and the date on which such Revolving Lender ceases to
have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which
shall accrue at the rate of 0.125% per annum on the average daily amount of the
LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements during the period from and including the Effective Date to but
excluding the later of the date of termination of the Revolving Commitments and
the date on which there ceases to be any LC Exposure, as well as the Issuing
Bank’s standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder.  Participation fees and fronting fees accrued
through and including the last day of each March, June, September and December shall
be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Revolving Commitments
terminate and any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. 
Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. 
All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).


 


36





















 


(c)           The Borrower agrees to pay
to the Administrative Agent, for its own account, fees payable in the amounts
and at the times separately agreed upon between the Borrower and the
Administrative Agent.


 


(d)           All fees payable hereunder
shall be paid on the dates due, in immediately available funds, to the
Administrative Agent (or to the Issuing Bank, in the case of fees payable to
it) for distribution, in the case of commitment fees and participation fees, to
the Lenders.  Fees paid shall not be
refundable under any circumstances.


 


SECTION 2.13.  Interest.  (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.


 


(b)           The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.


 


(c)           Notwithstanding the
foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by the Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the  rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the
case of any other amount, 2% plus the rate applicable to ABR Loans as provided
in paragraph (a) of this Section.


 


(d)           Accrued interest on each
Loan shall be payable in arrears on each Interest Payment Date for such Loan and,
in the case of Revolving Loans, upon termination of the Revolving Commitments; provided that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment
of an ABR Loan prior to the end of the Availability Period), accrued interest
on the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.


 


(e)           All interest hereunder shall
be computed on the basis of a year of 360 days, except that interest computed
by reference to the Alternate Base Rate at times when the Alternate Base Rate
is based on the Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day).  The applicable Alternate Base
Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.


 


SECTION 2.14.  Alternate Rate of
Interest.  If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:


 


37





















 


(a)           the Administrative Agent
determines (which determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or


 


(b)           the Administrative Agent is
advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate,
as applicable, for such Interest Period will not adequately and fairly reflect
the cost to such Lenders (or Lender) of making or maintaining their Loans (or
its Loan) included in such Borrowing for such Interest Period;


 


then the Administrative
Agent shall give notice thereof to the Borrower and the Lenders by telephone or
telecopy as promptly as practicable thereafter and, until the Administrative
Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist, (i) any Interest Election Request that
requests the conversion of any Borrowing to, or continuation of any Borrowing
as, a Eurodollar Borrowing shall be ineffective, and (ii) if any Borrowing
Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing.


 


SECTION 2.15.  Increased Costs.  (a) If any Change in Law shall:


 


(i)            impose, modify
or deem applicable any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate) or the Issuing Bank; or


 


(ii)           impose on any
Lender or the Issuing Bank or the London interbank market any other condition
affecting this Agreement or Eurodollar 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 Loan (or of maintaining its obligation to make any such Loan) or
to increase the cost to such Lender or the Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder (whether of
principal, interest or otherwise), then the Borrower will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.


 


(b)           If any Lender or the Issuing
Bank determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s or the
Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s
holding company, if any, as a consequence of this Agreement or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the Issuing Bank, to a level below that which such Lender
or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company
could have achieved but for such Change in Law (taking into consideration such
Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or
the Issuing Bank’s holding company with respect to capital adequacy), then from
time to time the Borrower will pay to such Lender or the Issuing Bank, as the
case may be, such additional 


 


38





















 


amount or amounts as will compensate such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding
company for any such reduction suffered.


 


(c)           A certificate of a Lender or
the Issuing Bank setting forth the amount or amounts necessary to compensate
such Lender or the Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section and describing
in reasonable detail the basis of such compensation and method of calculation
shall be delivered to the Borrower and shall be conclusive absent manifest
error.  The Borrower shall pay such
Lender or the Issuing Bank, as the case may be, the amount shown as due on any
such certificate within 10 days after receipt thereof.


 


(d)           Failure or delay on the part
of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall
not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand
such compensation; provided that the
Borrower shall not be required to compensate a Lender or the Issuing Bank
pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or the Issuing Bank, 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 Issuing Bank’s
intention to claim compensation therefor; provided
further that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 180-day
period referred to above shall be extended to include the period of retroactive
effect thereof.


 


SECTION 2.16.  Break Funding
Payments.  In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.09(d) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by
the Borrower pursuant to Section 2.19, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event.  In the case
of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed
to include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such
Loan had such event not occurred, at the Adjusted LIBO Rate that would have
been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period,
for dollar deposits of a comparable amount and period from other banks in the
eurodollar market.  A certificate of any
Lender setting forth any amount or amounts (and the computation of any such
loss, cost or expense in reasonable detail) that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and
shall be conclusive absent manifest error. 
The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


39





















 


SECTION 2.17.  Taxes.  (a) Any and all payments by or on
account of any obligation of the Borrower hereunder shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be required
to deduct any Indemnified Taxes or 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 Issuing Bank (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.


 


(b)           In addition, the Borrower
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.


 


(c)           The Borrower shall indemnify
the Administrative Agent, each Lender and the Issuing Bank, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank,
as the case may be, on or with respect to any payment by or on account of any
obligation of the Borrower hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) 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 Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or
the Issuing Bank, shall be conclusive absent manifest error.


 


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


 


(e)           Any Foreign Lender that is
entitled to an exemption from or reduction of withholding tax under the law of
the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or as otherwise reasonably requested by
the Borrower, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.


 


(f)            If the Administrative Agent
or a Lender determines, in its sole discretion, that it has received a refund
of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to
this Section 2.17, it shall pay over such refund to the Borrower (but only
to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 2.17 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any
interest paid by 


 


40





















 


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


 


SECTION 2.18.  Payments Generally;
Allocation of Proceeds; Sharing of Set-offs.  (a) The Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to 11:00 a.m., Chicago time, on the date
when due, in immediately available funds, without set off or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments
shall be made to the Administrative Agent at its offices at Chase Tower,
Chicago, Illinois, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto.  The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt
thereof.  If any payment hereunder shall
be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such
extension.  All payments hereunder shall
be made in dollars.


 


(b)           Any proceeds of Collateral
received by the Administrative Agent (i) constituting either (A) a
specific payment of principal, interest, fees or other sum payable under the
Loan Documents shall be applied as specified by the Borrower, so long as no
Event of Default has occurred and is continuing, or (B) a mandatory
prepayment (which shall be applied in accordance with Section 2.11) and (ii) after
an Event of Default has occurred and is continuing and the Administrative Agent
so elects or the Required Lenders so direct, such funds shall be applied
ratably first, to pay any fees,
indemnities, or expense reimbursements including amounts then due to the
Administrative Agent and the Issuing Bank from the Borrower (other than in
connection with Banking Services Obligations or Swap Obligations), second, to pay any fees or expense reimbursements
then due to the Lenders from the Borrower (other than in connection with Banking
Services Obligations or Swap Obligations), third,
to pay interest then due and payable on the Loans ratably (with amounts being applied
to the Term Loans to be applied to installments of the Term Loan in inverse
order of maturity), fourth, to prepay
principal on the Loans and unreimbursed LC Disbursements ratably, fifth, to pay an amount to the Administrative
Agent equal to one hundred five percent (105%) of the aggregate undrawn face
amount of all outstanding Letters of Credit and the aggregate amount of any
unpaid LC Disbursements, to be held as cash collateral for such Obligations, sixth, to payment of any amounts owing with
respect to Banking Services Obligations and Swap Obligations, and seventh, to the payment of any other Secured
Obligation due to the Administrative Agent or any Lender by the Borrower.  Notwithstanding anything to the contrary
contained in this Agreement, unless so directed by the Borrower, or unless a
Default is in existence, neither the Administrative 


 


41





















 


Agent nor any Lender shall apply any payment
which it receives to any Eurodollar Loan of a Class, except (a) on the
expiration date of the Interest Period applicable to any such Eurodollar Loan
or (b) in the event, and only to the extent, that there are no outstanding
ABR Loans of the same Class and, in any event, the Borrower shall pay the
break funding payment required in accordance with Section 2.16.  The Administrative Agent and the Lenders
shall have the continuing and exclusive right to apply and reverse and reapply
any and all such proceeds and payments to any portion of the Secured
Obligations.


 


(c)           At the election of the
Administrative Agent, all payments of principal, interest, LC Disbursements,
fees, premiums, reimbursable expenses (including, without limitation, all
reimbursement for fees and expenses pursuant to Section 9.03), and other
sums payable under the Loan Documents, may be paid from the proceeds of
Borrowings made hereunder whether made following a request by the Borrower
pursuant to Section 2.03 or a deemed request as provided in this Section or
may be deducted from any deposit account of the Borrower maintained with the
Administrative Agent.  The Borrower
hereby irrevocably authorizes (i) the Administrative Agent to make a
Borrowing for the purpose of paying each payment of principal, interest and
fees as it becomes due hereunder or any other amount due under the Loan
Documents and agrees that all such amounts charged shall constitute Loans
(including Swingline Loans), and that all such Borrowings shall be deemed to
have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) the
Administrative Agent to charge any deposit account of the Borrower maintained
with the Administrative Agent for each payment of principal, interest and fees
as it becomes due hereunder or any other amount due under the Loan Documents.


 


(d)           If any Lender shall, by
exercising any right of set off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or participations
in LC Disbursements or Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Loans and
participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered,  such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by
a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or participations in LC Disbursements and Swingline Loans to
any assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall
apply).  The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.


 


42





















 


(e)           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 Issuing Bank hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Bank, as the case may be, the amount
due.  In such event, if the Borrower has
not in fact made such payment, then each of the Lenders or the Issuing Bank, as
the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


(f)            If any Lender shall fail to
make any payment required to be made by it pursuant to Section 2.05, 2.06(d) or
(e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.


 


SECTION 2.19.  Mitigation
Obligations; Replacement of Lenders. 
If any Lender requests compensation under Section 2.15, 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 2.17,
then:


 


(a)           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 2.15 or 2.17, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender  (and the Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment);


 


(b)           the Borrower may, at its
sole expense and effort, require such Lender or any Lender that defaults in its
obligation to fund Loans hereunder (herein, a “Departing
Lender”), upon notice to the Departing Lender and the Administrative
Agent, to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights
and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent (and if a Revolving Commitment is being assigned, the Issuing Bank),
which consent shall not unreasonably be withheld, (ii) the Departing
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, 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) and (iii) in the 


 


43





















 


case of any such assignment resulting from a
claim for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17, such assignment will result in a reduction in
such compensation or payments.  A
Departing Lender shall not be required to make any such assignment and 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.


 


ARTICLE III


 


Representations and Warranties


 


The Borrower represents and
warrants to the Lenders that:


 


SECTION 3.01.  Organization; Powers.  Each Loan Party is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.


 


SECTION 3.02.  Authorization;
Enforceability.  The
Transactions are within each Loan Party’s corporate powers and have been duly
authorized by all necessary corporate and, if required, stockholder
action.  The Loan Documents to which each
Loan Party is a party have been duly executed and delivered by such Loan Party
and constitute a legal, valid and binding obligation of such Loan Party,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.


 


SECTION 3.03.  Governmental
Approvals; No Conflicts.  The
Transactions (a) do not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority, except such
as have been obtained or made and are in full force and effect and except for
filings necessary to perfect Liens created pursuant to the Loan Documents, (b) will
not violate any Requirement of Law applicable to the Borrower or any of its
Subsidiaries, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries, except Liens created pursuant to the Loan
Documents.


 


SECTION 3.04.  Financial Condition;
No Material Adverse Change.  (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal years ended December 31, 2006 and December 31, 2005 reported
on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as
of and for the fiscal quarter and the portion of the fiscal year ended June 30,
2007, certified as to the matters set forth in the immediately following
sentence by a Financial Officer on behalf of the Borrower.  Such financial statements present fairly, in
all 


 


44





















 


material respects, the financial position and
results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above.


 


(b)           Since December 31, 2006,
there has been no material adverse change in the business, assets, property or
financial condition of the Borrower and its Subsidiaries, taken as a whole.


 


SECTION 3.05.  Properties.  (a) Each of the Loan Parties has good
title to, or valid leasehold interests in, all its real and personal property
(except for defects in title that do not materially interfere with its ability
to conduct its business or to utilize such properties for their intended
purposes) free of all Liens other than those permitted by Section 6.02.


 


(b)           The Loan Parties own, or are
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property necessary to their business as currently conducted, and
the use thereof by the Loan Parties does not infringe in any material respect
upon the rights of any other Person.


 


SECTION 3.06.  Litigation and
Environmental Matters.  (a) There
are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries (i) as
to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.


 


(b)           Except for the Disclosed
Matters and except with respect to any other matters that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, none of the Borrower or any of its Subsidiaries (i) has received
notice of any claim with respect to any Environmental Liability, (ii) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental
Law, or (iii) has become subject to any Environmental Liability.


 


(c)           Since the date of this
Agreement, there has been no change in the status of the Disclosed Matters
that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.


 


SECTION 3.07.  Compliance with Laws
and Agreements.  Each of the
Borrower and its Subsidiaries is in compliance with all Requirements of Law
applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.


 


SECTION 3.08.  Investment Company
Status.  Neither the Borrower
nor any of its Subsidiaries is an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940.


 


45


















 


SECTION 3.09.  Taxes.  Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the
extent that the failure to do so could not be expected to result in a Material
Adverse Effect.


 


SECTION 3.10.  ERISA.  No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect.


 


SECTION 3.11.  Disclosure.  The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of
its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.  Neither the
Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document (as modified or supplemented by other
information so furnished) or delivered hereunder contains any material misstatement
of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time delivered.


 


SECTION 3.12.  Solvency.  (a)  Immediately after the consummation
of the Transactions to occur on the Effective Date, (i) the fair value of
the assets of the Borrower, at a fair valuation, will exceed its debts and
liabilities, subordinated, contingent or otherwise; (ii) the present fair
saleable value of the property of the Borrower will be greater than the amount
that will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) the Borrower will be able
to pay its debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (iv) the
Borrower will not have unreasonably small capital with which to conduct the
business in which it is engaged as such business is now conducted and is
proposed to be conducted after the Effective Date.


 


(b)           The Borrower does not intend to, nor
will it permit any of its Subsidiaries to, and the Borrower does not believe
that it or any of its Subsidiaries will, incur debts beyond its ability to pay
such debts as they mature, taking into account the timing of and amounts of
cash to be received by it or any such Subsidiary and the timing of the amounts
of cash to be payable on or in respect of its Indebtedness or the Indebtedness
of any such Subsidiary.


 


SECTION 3.13.  Insurance.  The
Borrower maintains, and has caused each Subsidiary to maintain, with
financially sound and reputable insurance companies, insurance on all their
real and personal property in such amounts, subject to such deductibles and
self-insurance retentions and covering such properties and risks as are
adequate and customarily 


 


46

















 


maintained by companies engaged in the same
or similar businesses operating in the same or similar locations.


 


SECTION 3.14.  Capitalization and
Subsidiaries.  Schedule 3.14 sets forth (a) a correct and
complete list of the name and relationship to the Borrower of each and all of
the Borrower’s Subsidiaries, (b) a true and complete listing of each class
of each of the Borrower’s authorized Equity Interests, of which all of such
issued shares are validly issued, outstanding, fully paid and non-assessable,
and owned beneficially and of record by the Persons identified on Schedule 3.14, and (c) the type of entity of
the Borrower  and each of its
Subsidiaries.  All of the issued and
outstanding Equity Interests owned by any Loan Party has been (to the extent
such concepts are relevant with respect to such ownership interests) duly
authorized and issued and is fully paid and non-assessable.


 


SECTION 3.15.  Security Interest in
Collateral.  The provisions of
this Agreement and the other Loan Documents create legal and valid Liens on all
the Collateral in favor of the Administrative Agent, for the benefit of the
Holders of Secured Obligations, and, in the case Liens which can be perfected
by the filing of UCC financing statements, upon the filing of the financing
statements identified in Schedule 3.15, such Liens constitute perfected
and continuing Liens on the Collateral, securing the Secured Obligations,
enforceable against the applicable Loan Party and all third parties, and having
priority over all other Liens on the Collateral except in the case of (a) any
Liens permitted under Section 6.02 and (b) Liens perfected only by
possession or control to the extent the Administrative Agent has not obtained
or does not maintain possession or control of such Collateral in accordance
with applicable law.


 


SECTION 3.16.  Labor Disputes.  As of the Effective Date, there are no
strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending
or, to the knowledge of the Borrower, threatened.  There are no labor controversies pending
against or, to the knowledge of the Borrower, threatened against or affecting
the Borrower or any of its Subsidiaries (i) which could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect, or (ii) that involve this Agreement or the Transactions.


 


SECTION 3.17.  No Default.  No Default has occurred and is continuing.


 


ARTICLE IV


 


Conditions


 


SECTION 4.01.  Effective Date.  The obligations of the Lenders to make Loans
and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):


 


(a)           Credit Agreement and Loan Documents.  The Administrative Agent (or its counsel)
shall have received (i) from each party hereto either (A) a
counterpart of this Agreement signed on behalf of such party or (B) written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party
has signed a counterpart of this Agreement and 


 


47

















 


(ii) duly executed copies of the Loan
Documents and such other legal opinions, certificates, documents, instruments
and agreements as the Administrative Agent shall reasonably request in
connection with the transactions contemplated by this Agreement and the other
Loan Documents, including any promissory notes requested by a Lender pursuant
to Section 2.10 payable to the order of each such requesting Lender, all
in form and substance satisfactory to the Administrative Agent and its counsel
and as further described in the list of closing documents attached as Exhibit B.


 


(b)           Financial Statements and Projections.  The Lenders shall have received (i) audited
consolidated financial statements of the Borrower for the 2004, 2005 and 2006
fiscal years, (ii) unaudited interim consolidated financial statements of the
Borrower for each fiscal quarter ended after the date of the latest applicable
financial statements delivered pursuant to clause (i) of this paragraph as
to which such financial statements are available, and such financial statements
shall not, in the reasonable judgment of the Administrative Agent, reflect any
material adverse change in the consolidated financial condition of the Borrower,
as reflected in the financial statements or projections contained in the
Information Memorandum and (iii) satisfactory projections through 2009.


 


(c)           No Default Certificate.  The Administrative Agent shall have received
a certificate, signed by the chief financial officer of the Borrower, on the
initial Borrowing date (i) stating that no Default has occurred and is
continuing, (ii) stating that the representations and warranties contained
in Article III are true and correct as of such date, and (iii) certifying
any other factual matters as may be reasonably requested by the Administrative
Agent.


 


(d)           Fees.  The
Lenders and the Administrative Agent shall have received all fees required to
be paid, and all expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel to the Administrative Agent), on
or before the Effective Date.  All such
amounts will be paid with proceeds of Loans made on the Effective Date and will
be reflected in the funding instructions given by the Borrower to the
Administrative Agent on or before the Effective Date.


 


(e)           Lien Searches. 
The Administrative Agent shall have received the results of a recent
lien search of the Uniform Commercial Code records of each jurisdiction and
office identified on Schedule 3.15, and such search shall reveal no
liens on any of the assets of the Loan Parties except for liens permitted by Section 6.02
or discharged on or prior to the Effective Date pursuant to a pay-off letter or
other documentation satisfactory to the Administrative Agent.


 


(f)            Pay-Off Letter.  The Administrative Agent shall have received
a reasonably satisfactory pay-off letter in respect of the Borrower’s Credit
Agreement dated as of July 10, 2006 with the lenders party thereto and JPMorgan
Chase Bank, National Association as administration agent.


 


(g)           Funding Account. 
The Administrative Agent shall have received a written money transfer notice
setting forth the Funding Account.


 


48

















 


(h)           Pledged Stock; Stock Powers; Pledged Notes.  The Administrative Agent shall have received (i) the
certificates representing the shares of Equity Interests pledged pursuant to
the Security Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof and (ii) each promissory note (if any) pledged to the
Administrative Agent pursuant to the Security Agreement endorsed (without
recourse) in blank (or accompanied by an executed transfer form in blank) by
the pledgor thereof.


 


(i)            Filings, Registrations and Recordings.  Each document (including any Uniform
Commercial Code financing statement) required by the Collateral Documents or
under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Administrative Agent,
for the benefit of the Holders of Secured Obligations, a perfected Lien on the
Collateral described therein, prior and superior in right to any other Person
(other than with respect to Liens expressly permitted by Section 6.02),
shall be in proper form for filing, registration or recordation.


 


(j)            Insurance. 
The Administrative Agent shall have received evidence of insurance
coverage in form, scope, and substance reasonably satisfactory to the
Administrative Agent and otherwise in compliance with the terms of Section 5.09.


 


(k)           Letter of Credit Application.  The Administrative Agent shall have received
a properly completed letter of credit application if the issuance of a Letter
of Credit will be required on the Effective Date.


 


The
Administrative Agent shall notify the Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and binding.


 


SECTION 4.02.  Each Credit Event.  The obligation of each Lender to make (but
not convert, continue or extend) a Loan (other than a Loan which refinances a
LC Disbursement in accordance with Section 2.06(e)), and of the Issuing
Bank to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:


 


(a)           The representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of the date of such
Loan or the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, except to the extent that any such representation or
warranty relates solely to an earlier date, in which case it shall have been
true and correct as of such earlier date, or, after prior notice to the
Administrative Agent, is untrue or incorrect as a result of transactions
permitted by the Loan Documents.


 


(b)           At the time of and immediately after giving effect to such
Loan or the issuance, amendment, renewal or extension of such Letter of Credit,
as applicable, no Default shall have occurred and be continuing.


 


Each Loan and
each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date
thereof as to the matters specified in paragraphs (a) and (b) of this
Section.


 


49

















 


ARTICLE V


 


Affirmative Covenants


 


Until the
Commitments have expired or been terminated and the principal of and interest
on each Loan and all fees payable hereunder shall have been paid in full and
all Letters of Credit shall have expired, terminated, been cash collateralized
or otherwise covered by letters of credit as permitted herein and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:


 


SECTION 5.01.  Financial Statements
and Other Information.  The
Borrower will furnish to the Administrative Agent and each Lender:


 


(a)           within 120 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements of
operations, stockholders’ equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by independent public accountants of
recognized national standing (without a “going concern” or like qualification
or exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, accompanied by any management letter
prepared by said accountants;


 


(b)           within 60 days after the end of each of the first three
fiscal quarters of the Borrower, its consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;


 


(c)           concurrently with
any delivery of financial statements under clause (a) or (b) above, a
certificate of the Borrower executed on its behalf of a Financial Officer in
substantially the form of Exhibit D (i) certifying,
in the case of the financial statements delivered under clause (b), as
presenting fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes, (ii) certifying
as to whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with respect
thereto, (iii) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.12 and (iv) stating whether
any change in GAAP or in the application thereof has occurred since the date of
the audited financial statements referred to in Section 3.04 and, if any
such change has 


 


50

















 


occurred, specifying the effect of such
change on the financial statements accompanying such certificate;


 


(d)           as soon as available
(following approval by the Borrower’s board of directors, if such approval is
obtained in the ordinary course), but in any event not more than 60 days after
the end of each fiscal year of the Borrower, a copy of the plan and forecast
(including a projected consolidated and consolidating balance sheet, income
statement and funds flow statement) of the Borrower for each month of the
upcoming fiscal year (the “Projections”)
substantially in form of the projections delivered pursuant to Section 4.01(b);


 


(e)           promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
distributed by the Borrower to its shareholders generally, as the case may be;
and


 


(f)            promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably request.


 


SECTION 5.02.  Notices of Material
Events.  The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:


 


(a)           the occurrence of any Default;


 


(b)           the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or
affecting the Borrower or any Affiliate thereof that has a reasonable
possibility of an adverse determination and that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;


 


(c)           the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect; and


 


(d)           any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.


 


Each notice
delivered under this Section shall be accompanied by a statement of a
Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.


 


SECTION 5.03.  Existence; Conduct
of Business.  The Borrower
will, and will cause each of its Material Subsidiaries to, (a) do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence and the rights, qualifications, licenses, permits,
franchises, governmental authorizations, intellectual property rights, licenses
and permits material to the conduct of its business, and maintain all requisite
authority to conduct 


 


51

















 


its business in each
jurisdiction in which its business is conducted; provided
that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03 and (b) carry on and conduct
its business in substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted.


 


SECTION 5.04.  Payment of
Obligations.  The Borrower
will, and will cause each of its Subsidiaries to, pay or discharge all Material
Indebtedness and all other material liabilities and obligations, including
Taxes, before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Effect.


 


SECTION 5.05.  Maintenance of
Properties.  The Borrower
will, and will cause each of its Material Subsidiaries to, keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted.


 


SECTION 5.06.  Books and Records;
Inspection Rights.  The
Borrower will, and will cause each of its Subsidiaries to, (i) keep proper
books of record and account in accordance with prudent practices and (ii) permit
any representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.  The Borrower acknowledges that the
Administrative Agent, after exercising its rights of inspection, may prepare
and distribute to the Lenders certain reports pertaining to the assets for
internal use by the Administrative Agent and the Lenders.  The Administrative Agent agrees to use
reasonable efforts to minimize, to the extent practicable and so long as no
Default has occurred and is continuing, the number of separate requests from
the Lenders to exercise their rights under this Section 5.06 and to
coordinate the exercise by the Lenders of such rights.


 


SECTION 5.07.  Compliance with Laws.  The Borrower will, and will cause each of its
Subsidiaries to, comply with all Requirements of Law applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.


 


SECTION 5.08.  Use of Proceeds.  The proceeds of the Term Loans will be used
to finance a special dividend to the Borrower’s shareholders, to refinance certain
existing indebtedness and for other general corporate purposes of the Borrower
and its Subsidiaries.  The proceeds of
the Revolving Loans will be used to finance Permitted Acquisitions, working
capital needs and for other general corporate purposes of the Borrower and its
Subsidiaries.  No part of the proceeds of
any Loan and no Letter of Credit will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the Regulations of the
Board, including Regulations T, U and X.


 


SECTION 5.09.  Insurance.  The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable carriers (a) insurance
in such 


 


52

















 


amounts (with no greater risk retention) and
against such risks (including loss or damage by fire and loss in transit;
theft, burglary, pilferage, larceny, embezzlement, and other criminal activities;
business interruption; and general liability) and such other hazards, as is
customarily maintained by companies of established repute engaged in the same
or similar businesses operating in the same or similar locations and (b) all
insurance required pursuant to the Collateral Documents.  The Borrower will furnish to the Lenders,
upon request of the Administrative Agent, information in reasonable detail as
to the insurance so maintained.  The
Borrower shall deliver to the Administrative Agent endorsements (x) to all
“All Risk” physical damage or casualty insurance policies in respect of Collateral
naming the Administrative Agent as loss payee, and (y) to all general
liability and other liability policies naming the Administrative Agent an
additional insured.  In the event the
Borrower or any of its Subsidiaries at any time or times hereafter shall fail
to obtain or maintain any of the policies or insurance required herein or to
pay any premium in whole or in part relating thereto, then the Administrative
Agent, without waiving or releasing any obligations or resulting Default
hereunder, may at any time or times thereafter (but shall be under no
obligation to do so) obtain and maintain such policies of insurance and pay
such premiums and take any other action with respect thereto which the
Administrative Agent deems advisable. 
All sums so disbursed by the Administrative Agent shall constitute part
of the Obligations, payable as provided in this Agreement.


 


SECTION 5.10.  Casualty and
Condemnation.  The Borrower
will furnish to the Administrative Agent and the Lenders prompt written notice
of any casualty or other insured damage (to the extent representing a loss of
in excess of $1,000,000 per occurrence to any property) or the commencement of
any action or proceeding for the taking of any property of the Loan Parties or
interest therein (with a value in excess of $1,000,000 per action or proceeding)
under power of eminent domain or by condemnation or similar proceeding.


 


SECTION 5.11.  Subsidiary Guarantors;
Pledges; Additional Collateral; Further Assurances.  (a)       As
promptly as possible but in any event within thirty (30) days (or such later
date as may be agreed upon by the Administrative Agent) after any Person
becomes a Material Subsidiary, the Borrower shall provide the Administrative
Agent with written notice thereof setting forth information in reasonable
detail describing the material assets of such Person and shall cause each such
Material Subsidiary to deliver to the Administrative Agent the Subsidiary
Guaranty and the  Security Agreement
pursuant to which such Material Subsidiary agrees to be bound by the terms and
provisions thereof, such Subsidiary Guaranty and Security Agreement to be
accompanied by appropriate corporate resolutions, other corporate documentation
and legal opinions in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.


 


(b)           The Borrower will cause, and will
cause each other Loan Party to cause, all of its owned property (constituting personal,
tangible, intangible, or mixed, but excluding Excluded Assets) to be subject at
all times to first priority, perfected Liens in favor of the Administrative
Agent for the benefit of the Holders of Secured Obligations to secure the
Secured Obligations in accordance with and to the extent required by the terms
and conditions of the Collateral Documents, subject in any case to Liens
permitted by Section 6.02.  Without
limiting the generality of the foregoing, the Borrower will (i) cause the
Applicable Pledge Percentage of the issued and outstanding Equity Interests of
each Pledge Subsidiary directly owned by the Borrower or any other Loan Party
to be subject at all times to a first priority, perfected Lien in 


 


53

















 


favor of the Administrative Agent to secure
the Secured Obligations in accordance with the terms and conditions of the
Collateral Documents or such other security documents as the Administrative
Agent shall reasonably request and (ii) will, and will cause each
Subsidiary Guarantor to, deliver deposit account control agreements or blocked
account agreements with respect to deposit accounts maintained by, the Borrower
or such Guarantor to the extent, and within such time period as is, reasonably
required by the Administrative Agent, in each case in accordance with the terms
and conditions of the Security Agreement. 
Notwithstanding the foregoing, no pledge agreement in respect of the Equity
Interests of a Foreign Subsidiary shall be required hereunder to the extent the
Administrative Agent or its counsel reasonably determines that such pledge
would not provide material credit support for the benefit of the Holders of
Secured Obligations pursuant to legally valid, binding and enforceable pledge
agreements.


 


(c)           Without limiting the foregoing, the
Borrower will, and will cause each Loan Party to, execute and deliver, or cause
to be executed and delivered, to the Administrative Agent such documents,
agreements and instruments, and will take or cause to be taken such further
actions (including the filing and recording of financing statements and other
documents and such other actions or deliveries of the type required by Section 4.01,
as applicable), which may be required by law or which the Administrative Agent
may, from time to time, reasonably request to carry out the terms and
conditions of this Agreement and the other Loan Documents and to ensure
perfection and priority of the Liens created or intended to be created by the
Collateral Documents, all at the expense of the Borrower.


 


SECTION 5.12.  Swap Agreements.  By no later than 60 days following the
Effective Date, the Borrower (i) shall maintain a hedged position
established by one or more Swap Agreements for a period of no less than two
years following the initial Borrowing of the Term Loan, with the aggregate
notional amount of such Swap Agreements equal to not less than fifty percent
(50%) of the then outstanding aggregate principal balance of the Term Loan and
on other terms which are reasonably satisfactory to the Administrative Agent
and (ii) shall neither assign, terminate or unwind any such Swap
Agreements nor sell any Swap Agreements if the effect of such action (when
taken together with any other Swap Agreements executed contemporaneously with
the taking of such action) would have the effect of canceling its positions
under such Swap Agreement.


 


ARTICLE VI


 


Negative Covenants


 


Until the
Commitments have expired or terminated and the principal of and interest on
each Loan and all fees, expenses and other amounts payable under any Loan
Document have been paid in full and all Letters of Credit have expired, terminated,
been cash collateralized or otherwise covered by letters of credit as permitted
herein and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:


 


SECTION 6.01.  Indebtedness.  The Borrower will not, and will not permit
any Subsidiary to, create, incur or suffer to exist any Indebtedness, except:


 


54

















 


(a)           the Secured Obligations;


 


(b)           Indebtedness
existing on the date hereof and set forth in Schedule
6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;


 


(c)           Indebtedness of the
Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other
Subsidiary, provided that Indebtedness of
any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that
is a Loan Party shall be subject to Section 6.04;


 


(d)           Guarantees by the
Borrower of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Borrower or any other Subsidiary, provided
that (i) the Indebtedness so Guaranteed is permitted by this Section 6.01
and (ii) Guarantees by the Borrower or any Subsidiary that is a Loan Party
of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;


 


(e)           Indebtedness of the
Borrower or any Subsidiary incurred to finance the acquisition, construction,
improvement, alteration or repair of any fixed or capital assets (whether or
not constituting purchase money Indebtedness), including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of
any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of
such construction, improvement, alteration or repair and (ii) the
aggregate principal amount of Indebtedness permitted by this clause (e) shall
not exceed $40,000,000 at any time outstanding;


 


(f)            Indebtedness owed to any Person providing workers’
compensation, health, disability or other employee benefits or property,
casualty or liability insurance, pursuant to reimbursement or indemnification
obligations to such Person, in each case incurred in the ordinary course of
business;


 


(g)           Indebtedness of the Borrower or any Subsidiary in respect
of Bonding Obligations;


 


(h)           Indebtedness under any Swap Agreement entered into for
bona fide hedging purposes and not for speculative or investment purposes;


 


(i)            Indebtedness constituting Affiliated Subordinated Debt; provided
that the aggregate principal amount of Indebtedness permitted by this clause (i) shall
not exceed $20,000,000 at any time outstanding;


 


(j)            Indebtedness constituting Unaffiliated Subordinated
Indebtedness; and


 


(k)           other unsecured Indebtedness in an aggregate principal
amount not exceeding $7,500,000 at any time outstanding.


 


55

















 


SECTION 6.02.  Liens.  The Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:


 


(a)           Liens created pursuant to any Loan Document;


 


(b)           Permitted Encumbrances;


 


(c)           any Lien on any
property or asset of the Borrower or any Subsidiary existing on the date hereof
and set forth in Schedule 6.02; provided that (i) such Lien shall not apply
to any other property or asset of the Borrower or Subsidiary and (ii) such
Lien shall secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;


 


(d)           Liens on assets
acquired, constructed, improved, altered or repaired by the Borrower or any
Subsidiary; provided that (i) such
security interests secure Indebtedness permitted by clause (e) of Section 6.01,
(ii) such security interests and the Indebtedness secured thereby are
incurred prior to or within 90 days after such acquisition or the completion of
such construction, improvement, alteration or repair,  (iii) the principal amount of the
Indebtedness secured thereby does not exceed the cost of acquiring, constructing,
improving, altering or repairing such assets and (iv) such security
interests shall not apply to any other property or assets of the Borrower or
Subsidiary (other than, in respect of any lease, under any one or more master
lease agreements with same lessor or an Affiliate thereof);


 


(e)           any Lien existing on
any property or asset (other than accounts receivable and inventory) prior to
the acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset (other than accounts receivable and inventory) of any Person
that becomes a Loan Party after the date hereof prior to the time such Person
becomes a Loan Party; provided that (i) such
Lien is not created in contemplation of or in connection with such acquisition
or such Person becoming a Loan Party, as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Loan Party and (iii) such
Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Loan Party, as the case may be;


 


(f)            Liens of a collecting bank arising in the ordinary course
of business under Section 4-208 of the Uniform Commercial Code in effect
in the relevant jurisdiction covering only the items being collected upon;


 


(g)           Liens arising out of sale and leaseback transactions
permitted by Section 6.06; and


 


(h)           Liens granted by a Subsidiary that is not a Loan Party in
favor of the Borrower or another Loan Party in respect of Indebtedness owed by
such Subsidiary.


 


56

















 


Notwithstanding
the foregoing, none of the Liens permitted pursuant to this Section 6.02
may at any time attach to any Loan Party’s (1) accounts receivable, other
than those permitted under clauses (a) and (d) of the definition of
Permitted Encumbrance and clause (a) above and (2) inventory, other
than those permitted under clauses (a), (b) and (d) of the definition
of Permitted Encumbrance and clause (a) above.


 


SECTION 6.03.  Fundamental Changes.  (a) The Borrower will not, and will not
permit any Material Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
Subsidiary of the Borrower may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation, (ii) any Loan Party
(other than the Borrower) may merge into any Loan Party in a transaction in
which the surviving entity is a Loan Party, (iii) any Subsidiary that is
not a Loan Party may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders; provided that any such merger involving a Person
that is not a wholly owned Subsidiary immediately prior to such merger shall
not be permitted unless also permitted by Section 6.04 and (iv) the
Borrower and its Subsidiaries may consummate Permitted Acquisitions.


 


(b)           The Borrower will not, nor will it
permit any of its Subsidiaries to, engage in any business other than businesses
of the type conducted by the Borrower and its Subsidiaries on the date of
execution of this Agreement and businesses reasonably related thereto.


 


SECTION 6.04.  Investments, Loans,
Advances, Guarantees and Acquisitions.  The Borrower will not, and will not permit
any Subsidiary to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a Loan Party and a wholly owned Subsidiary prior
to such merger) any capital stock, evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit (whether through purchase of assets, merger or otherwise), except:


 


(a)           Permitted Investments and Permitted Acquisitions;


 


(b)           investments in
existence on the date of this Agreement and described in Schedule
6.04;


 


(c)           investments by the Borrower
and the Subsidiaries in Equity Interests in their respective Subsidiaries, provided that (A) any such Equity Interests
held by a Loan Party shall be pledged pursuant to the Security Agreement
(subject to the limitations applicable to common stock of a Foreign Subsidiary
referred to in Section 5.12) and (B) the aggregate amount of
investments by Loan Parties in Subsidiaries that are not Loan Parties (together
with outstanding intercompany loans permitted under clause (B) to the
proviso to Section 6.04(d) and outstanding Guarantees permitted under
the proviso to Section 6.04(e)) shall not exceed $1,000,000 at any time
outstanding;


 


57

















 


(d)           loans or advances
made by the Borrower to any Subsidiary and made by any Subsidiary to the
Borrower or any other Subsidiary, provided
that the amount of such loans and advances made by Loan Parties to Subsidiaries
that are not Loan Parties (together with outstanding investments permitted
under clause (B) to the proviso to Section 6.04(c) and
outstanding Guarantees permitted under the proviso to Section 6.04(e))
shall not exceed $1,000,000 at any time outstanding;


 


(e)           Guarantees
constituting Indebtedness permitted by Section 6.01, provided that the aggregate principal amount of
Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by
any Loan Party shall (together with outstanding investments permitted under
clause (B) to the proviso to Section 6.04(c) and outstanding
intercompany loans permitted under clause (B) to the proviso to Section 6.04(d))
shall not exceed $1,000,000 at any time outstanding;


 


(f)            loans or advances made by the Borrower or any Subsidiary
to its employees on an arms-length basis in the ordinary course of business
consistent with past practices for travel and entertainment expenses,
relocation costs and similar purposes up to a maximum of $500,000 in the
aggregate at any one time outstanding;


 


(g)           investments of any Person existing at the time such Person
becomes a Subsidiary of the Borrower or consolidates or merges with the
Borrower or any of the Subsidiaries (including in connection with a Permitted
Acquisition) so long as such investments were not made in contemplation of such
Person becoming a Subsidiary or of such merger;


 


(h)           investments received in connection with the dispositions
of assets permitted by Section 6.05;


 


(i)            investments constituting deposits described in clauses (c) and
(d) of the definition of the term “Permitted Encumbrances”; and


 


(j)            any other investment, loan or advance (other than
acquisitions) so long as the aggregate amount of all such investments does not
exceed $500,000 in principal amount or original investment outstanding during
the term of this Agreement.


 


SECTION 6.05.  Asset Sales.  The Borrower will not, and will not permit
any Subsidiary to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest owned by it, nor will the Borrower permit any
Subsidiary to issue any additional Equity Interest in such Subsidiary (other
than to the Borrower or another Subsidiary in compliance with Section 6.04),
except:


 


(a)           sales, transfers and dispositions of (i) inventory in
the ordinary course of business, (ii) used, obsolete, worn out or surplus
equipment or property in the ordinary course of business and (iii) any
equipment or property subject to any lease or right-of-use agreement entered
into in the ordinary course of business, in accordance with the terms of such
agreement;


 


58

















 


(b)           sales, transfers and
dispositions to the Borrower or any Subsidiary, provided
that any such sales, transfers or dispositions involving a Subsidiary that is
not a Loan Party shall be made in compliance with Section 6.08;


 


(c)           sales, transfers and dispositions of accounts receivable
in connection with the compromise, settlement or collection thereof;


 


(d)           sales, transfers and dispositions of investments permitted
by clauses (i) and (k) of Section 6.04;


 


(e)           sale and leaseback transactions permitted by Section 6.06;


 


(f)            dispositions resulting from any casualty or other insured
damage to, or any taking under power of eminent domain or by condemnation or
similar proceeding of, any property or asset of the Borrower or any Subsidiary;
and


 


(g)           sales, transfers and
other dispositions of assets (other than Equity Interests in a Subsidiary
unless all Equity Interests in such Subsidiary are sold) that are not permitted
by any other paragraph of this Section, provided
that the aggregate fair market value of all assets sold, transferred or
otherwise disposed of in reliance upon this paragraph (g) shall not exceed
$7,500,000 during any fiscal year of the Borrower.


 


SECTION 6.06.  Sale and Leaseback
Transactions.  The Borrower
will not, and will not permit any Subsidiary to, without the prior written
consent of the Administrative Agent, enter into any arrangement, directly or
indirectly, whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred, except for any such sale of any fixed or capital assets or
equipment by the Borrower or any Subsidiary that is made for cash consideration
in an amount not less than the fair value of such fixed or capital asset or
equipment (or, if acquired by the Borrower or such Subsidiary within 90 days
prior to entering into such sale, not less than the prior purchase price of
such asset or equipment) and is consummated within 90 days after the Borrower
or such Subsidiary acquires or completes the construction of such fixed or
capital asset or equipment.


 


SECTION 6.07.  Restricted Payments;
Certain Payments of Indebtedness. 
(a) The Borrower will not, and will not permit any Subsidiary to,
declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except (i) the Borrower may declare and pay dividends with respect to its Equity
Interest payable solely in additional units of its Equity Interests, (ii) Subsidiaries
of the Borrower may declare and pay dividends ratably with respect to their
Equity Interests, (iii) the Borrower may make any other Restricted
Payments so long as (A) no Event of Default has then occurred and is
continuing or would arise after giving effect thereto, (B) Consolidated Availability
is not less than $20,000,000 immediately after giving effect thereto and (C) at
the time thereof and after giving pro forma effect thereto, the Leverage Ratio
(as calculated pursuant to Section 6.12(b)) is not, and would not be,
greater than 2.75 to 1.0.


 


59

















 


(b)           The Borrower will not, and will not
permit any Subsidiary to, make or agree to pay or make, directly or indirectly,
any payment or other distribution (whether in cash, securities or other
property) of or in respect of principal of or interest on any Indebtedness, or
any payment or other distribution (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 Indebtedness, except:


 


(i)            payment of Indebtedness created
under the Loan Documents;


 


(ii)           any payment in respect of Affiliated
Subordinated Debt to the extent such payment is made from funds permitted to be
paid as a Restricted Payment pursuant to Section 6.07(a)(iii) and
otherwise in conformity with the terms of subordination applicable thereto;


 


(iii)          any payment in respect of Unaffiliated
Subordinated Indebtedness made in accordance with the Unaffiliated Subordinated
Indebtedness Documents and Section 6.10;


 


(iv)          payment of regularly scheduled
interest and principal payments as and when due in respect of any Indebtedness,
other than payments in respect of the Subordinated Indebtedness prohibited by
the subordination provisions thereof;


 


(v)           refinancings of Indebtedness to the
extent permitted by Section 6.01; and


 


(vi)          payment of secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness.


 


SECTION 6.08.  Transactions with
Affiliates.  The Borrower will
not, and will not permit any Subsidiary to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions that (i) are in the ordinary
course of business and (ii) are at prices and on terms and conditions not
less favorable to the Borrower or such Subsidiary than could be obtained on an
arm’s-length basis from unrelated third parties, (b) transactions between
or among any Loan Party and any Pledge Subsidiary not involving any other
Affiliate, (c) any investment permitted by Sections 6.04(c) or
6.04(d), (d) any Indebtedness permitted under Section 6.01(c) or
(i), (e) any Restricted Payment permitted by Section 6.07, (f) loans
or advances to employees permitted under Section 6.04, (g) the
payment of reasonable fees to directors of the Borrower or any Subsidiary who
are not employees of the Borrower or any Subsidiary, and compensation and
employee benefit arrangements paid to, and indemnities provided for the benefit
of, directors, officers or employees of the Borrower or its Subsidiaries in the
ordinary course of business and (h) any issuances of securities or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment agreements, stock options and stock ownership plans
approved by the Borrower’s board of directors.


 


SECTION 6.09.  Restrictive Agreements.  The Borrower will not, and will not permit
any Subsidiary to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of the 


 


60

















 


Borrower or any of its
Subsidiaries to create, incur or permit to exist any Lien upon any of its
property or assets (other than any Lien permitted by Section 6.02), or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the
Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower
or any other Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or by
any Loan Document, (ii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iii) clause (a) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property
or assets securing such Indebtedness and (iv) clause (a) of the
foregoing shall not apply to customary provisions in leases restricting the
assignment thereof.


 


SECTION 6.10.  Unaffiliated Subordinated Indebtedness and
Amendments to Unaffiliated Subordinated Indebtedness Documents.  The Borrower will not, and will not permit
any Subsidiary to, directly or indirectly voluntarily prepay, defease or in
substance defease, purchase, redeem, retire or otherwise acquire, any Unaffiliated
Subordinated Indebtedness or any Indebtedness from time to time outstanding
under the Unaffiliated Subordinated Indebtedness Documents.  Furthermore, the Borrower will not, and will
not permit any Subsidiary to, amend the Unaffiliated Subordinated Indebtedness
Documents or any document, agreement or instrument evidencing any Indebtedness
incurred pursuant to the Unaffiliated Subordinated Indebtedness Documents (or
any replacements, substitutions, extensions or renewals thereof) or pursuant to
which such Indebtedness is issued where such amendment, modification or
supplement provides for the following or which has any of the following
effects:


 


(a)           increases the overall principal
amount of any such Indebtedness or increases the amount of any single scheduled
installment of principal or interest;


 


(b)           shortens or accelerates the date upon
which any installment of principal or interest becomes due or adds any
additional mandatory redemption provisions;


 


(c)           shortens the final maturity date of
such Indebtedness or otherwise accelerates the amortization schedule with
respect to such Indebtedness;


 


(d)           increases the rate of interest
accruing on such Indebtedness;


 


(e)           provides for the payment of additional
fees or increases existing fees;


 


(f)            amends or modifies any financial or
negative covenant (or covenant which prohibits or restricts the Borrower or any
Subsidiary from taking certain actions) in a manner which is more onerous or
more restrictive in any material respect to the Borrower or such Subsidiary or
which is otherwise materially adverse to the Borrower, any Subsidiary and/or
the Lenders or, in the case of any such covenant, which places material
additional restrictions on the Borrower or such Subsidiary or which requires
the Borrower or such Subsidiary to comply with more restrictive financial
ratios or which requires the Borrower to better its financial performance, in
each case from that set forth in the existing applicable covenants in the 


 


61

















 


Unaffiliated Subordinated Indebtedness
Documents or the applicable covenants in this Agreement; or


 


(g)           amends, modifies or adds any
affirmative covenant in a manner which (i) when taken as a whole, is materially
adverse to the Borrower, any Subsidiary and/or the Lenders or (ii) is more
onerous than the existing applicable covenant in the Unaffiliated Subordinated
Indebtedness Documents or the applicable covenant in this Agreement.


 


SECTION 6.11.  Capital Expenditures.  The Borrower will not, and will not permit
any Subsidiary to, incur or make any Capital Expenditures, during any period of
four consecutive fiscal quarters of the Borrower, in an amount exceeding $25,000,000;
provided, that this Section 6.11 shall not apply if the Borrower’s
Leverage Ratio (as most recently demonstrated pursuant to the certificate
delivered pursuant to Section 5.01(c)) is less than 2.5 to 1.0.


 


SECTION 6.12.  Financial Covenants.


 


(a)           Interest Coverage Ratio.  The Borrower will not permit the Interest
Coverage Ratio, determined as of the end of each of its fiscal quarters for any
period of four consecutive fiscal quarters ending with the end of such fiscal
quarter, to be less than 3.0 to 1.0.


 


(b)           Leverage
Ratio.  The Borrower will not
permit the Leverage Ratio, determined as of the end of each of its fiscal
quarters for any period of four consecutive fiscal quarters ending with the end
of such fiscal quarter, to be greater than 3.0 to 1.0; provided that
Indebtedness in respect of Letters of Credit with a maturity of one year or
less (in an aggregate principal amount not to exceed the amount of Consolidated
EBITDA for such period as of the end of such fiscal quarter) shall not be
included in determining Consolidated Total Indebtedness for calculating the Leverage
Ratio in accordance with this clause (b).


 


ARTICLE VII


 


Events of Default


 


If any of the
following events (“Events of Default”)
shall occur:


 


(a)           the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;


 


(b)           the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of three
Business Days;


 


(c)           any representation or warranty made or deemed made by or
on behalf of any Loan Party or any Subsidiary in or in connection with this
Agreement or any Loan Document or any amendment or modification thereof or
waiver thereunder, or in any 


 


62

















 


report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement or
any Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect when
made or deemed made;


 


(d)           the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02(a), 5.03 (with
respect to the Borrower’s existence), 5.08, 5.11 or 5.12 or in Article VI;


 


(e)           the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other than those
which constitute a default under another Section of this Article), and
such failure shall continue unremedied for a period of 30 days after the
earlier of such breach or notice thereof from the Administrative Agent (which
notice will be given at the request of any Lender);


 


(f)            the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and
payable;


 


(g)           any event or
condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not
apply to secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness;


 


(h)           an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any Subsidiary or
its debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Subsidiary
or for a substantial part of its assets, and, in any such case, such proceeding
or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;


 


(i)            the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or such Subsidiary
or for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed 


 


63

















 


against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;


 


(j)            the Borrower or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they become due;


 


(k)           one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 (to the extent not covered by a
creditworthy insurer which has not denied coverage and subject to customary
deductibles) shall be rendered against the Borrower or any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Borrower or any Subsidiary to enforce any such judgment;


 


(l)            an ERISA Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in a Material Adverse
Effect;


 


(m)          a Change in Control shall occur;


 


(n)           the occurrence of any “default”, as defined in any Loan
Document (other than this Agreement) or the breach of any of the terms or
provisions of any Loan Document (other than this Agreement), which default or
breach continues beyond any period of grace therein provided;


 


(o)           the Subsidiary Guaranty shall fail to remain in full force
or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of the Subsidiary Guaranty, or any Subsidiary Guarantor
shall fail to comply with any of the terms or provisions of the relevant Subsidiary
Guaranty to which it is a party, or any Subsidiary Guarantor shall deny that it
has any further liability under the Subsidiary Guaranty to which it is a party,
or shall give notice to such effect;


 


(p)           any Collateral Document shall for any reason fail to
create a valid and perfected first priority security interest in any Collateral
purported to be covered thereby, except as permitted by the terms of any
Collateral Document, or any Collateral Document shall fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Collateral Document, or any Loan Party
shall fail to comply with any of the terms or provisions of any Collateral
Document, or the Borrower, any Subsidiary or any holder of Affiliated
Subordinated Debt shall fail to comply with the terms and conditions set forth
in Schedule 1.01, or any such terms and conditions shall fail to remain
in full force or effect or any action shall be taken to discontinue or to
assert the invalidity or unenforceability of such terms and conditions; or


 


(q)           any material provision of any Loan Document for any reason
ceases to be valid, binding and enforceable in accordance with its terms (or the
Borrower or any Subsidiary shall challenge the enforceability of any Loan
Document or shall assert in writing, or engage in any action or inaction based
on any such assertion, that any 


 


64

















 


provision of any of the Loan Documents has
ceased to be or otherwise is not valid, binding and enforceable in accordance
with its terms);


 


then, and in
every such event (other than an event with respect to the Borrower described in
clause (h) or (i) of this Article), and at any time thereafter during
the continuance of such event, the Administrative Agent may, and at the request
of the Required Lenders shall, by notice to the Borrower, take either or both
of the following actions, at the same or different times:  (i) terminate the Commitments, and
thereupon the Commitments shall terminate immediately, and (ii) declare
the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of
this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.  Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, and at the
request of the Required Lenders shall, exercise any rights and remedies
provided to the Administrative Agent under the Loan Documents or at law or
equity, including all remedies provided under the UCC.


 


ARTICLE VIII


 


The Administrative Agent


 


Each of the
Lenders and the Issuing Bank hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf, including execution of the other Loan Documents, and to exercise
such powers as are delegated to the Administrative Agent by the terms of the
Loan Documents, together with such actions and powers as are reasonably
incidental thereto.


 


The bank
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 such bank and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent hereunder.


 


The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents.  Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Administrative Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or 


 


65

















 


such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
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 Subsidiaries that is
communicated to or obtained by the bank serving as 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 with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or willful misconduct. 
The Administrative Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof is given to the Administrative
Agent by the Borrower or a Lender, and 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 any Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection with any Loan Document, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, (v) the creation, perfection or
priority of Liens on the Collateral or the existence of the Collateral, or (vi) the
satisfaction of any condition set forth in Article IV or elsewhere in any
Loan Document, other than to confirm receipt of items expressly required to be
delivered to the 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 believed by it to be genuine
and to have been signed or sent 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 be made by
the proper Person, and shall not incur any liability for relying thereon.  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.


 


The
Administrative Agent may perform any and all its duties and exercise its rights
and powers 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 its duties and exercise
its rights and powers through their respective Related Parties.  The exculpatory provisions of the preceding
paragraphs 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.


 


Subject to the
appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying
the Lenders, the Issuing Bank and the Borrower. 
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor.  If no 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 


 


66

















 


retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank,
appoint a successor Administrative Agent which shall be a bank with an office
in New York, New York or an Affiliate of any such bank.  Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder.  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 Administrative
Agent’s resignation hereunder, the provisions of this Article and Section 9.03
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 it was acting as
Administrative Agent.


 


Each Lender
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. 
Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender 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 related agreement or any
document furnished hereunder or thereunder.


 


None of the
Lenders, if any, identified in this Agreement as a Syndication Agent or a
Documentation Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such.  Without limiting the
foregoing, none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender.  Each
Lender hereby makes the same acknowledgments with respect to the relevant
Lenders in their respective capacities as Syndication Agent or Documentation
Agent as it makes with respect to the Administrative Agent in the preceding
paragraph.


 


Except with respect to the exercise of setoff
rights of any Lender, in accordance with Section 9.08, the proceeds of
which are applied in accordance with this Agreement, each Lender agrees that it
will not take any action, nor institute any actions or proceedings, against the
Borrower or with respect to any Loan Document, without the prior written
consent of the Required Lenders or, as may be provided in this Agreement or the
other Loan Documents, with the consent of the Administrative Agent.


 


The Lenders are not partners or co-venturers,
and no Lender shall be liable for the acts or omissions of, or (except as
otherwise set forth herein in case of the Administrative Agent) authorized to
act for, any other Lender.  The
Administrative Agent shall have the exclusive right on behalf of the Lenders to
enforce the payment of the principal of and interest on any Loan after the date
such principal or interest has become due and payable pursuant to the terms of
this Agreement.


 


In its capacity, the Administrative Agent is
a “representative” of the Holders of Secured Obligations within the meaning of
the term “secured party” as defined in the New York Uniform Commercial
Code.  Each Lender authorizes the
Administrative Agent to enter into each 


 


67

















 


of the Collateral Documents to which it is a party and to take all
action contemplated by such documents. 
Each Lender agrees that no Holder of Secured Obligations (other than the
Administrative Agent) shall have the right individually to seek to realize upon
the security granted by any Collateral Document, it being understood and agreed
that such rights and remedies may be exercised solely by the Administrative
Agent for the benefit of the Holders of Secured Obligations upon the terms of
the Collateral Documents.  In the event
that any Collateral is hereafter pledged by any Person as collateral security
for the Secured Obligations, the Administrative Agent is hereby authorized, and
hereby granted a power of attorney, to execute and deliver on behalf of the
Holders of Secured Obligations any Loan Documents necessary or appropriate to
grant and perfect a Lien on such Collateral in favor of the Administrative
Agent on behalf of the Holders of Secured Obligations.  The Lenders hereby authorize the
Administrative Agent, at its option and in its discretion, to release any Lien
granted to or held by the Administrative Agent upon any Collateral (i) as
described in Section 9.02(c); (ii) as permitted by, but only in
accordance with, the terms of the applicable Loan Document; or (iii) if
approved, authorized or ratified in writing by the Required Lenders, unless
such release is required to be approved by all of the Lenders hereunder.  Upon request by the Administrative Agent at
any time, the Lenders will confirm in writing the Administrative Agent’s
authority to release particular types or items of Collateral pursuant
hereto.  Upon any sale or transfer of
assets constituting Collateral which is permitted pursuant to the terms of any
Loan Document, or consented to in writing by the Required Lenders or all of the
Lenders, as applicable, and upon at least two Business Days’ prior reasonably
detailed written request by the Borrower to the Administrative Agent, the
Administrative Agent shall (and is hereby irrevocably authorized by the Lenders
to) execute such documents as may be necessary to evidence the release of the
Liens granted to the Administrative Agent for the benefit of the Holders of
Secured Obligations herein or pursuant hereto upon the Collateral that was sold
or transferred; provided, however, that (i) the Administrative Agent
shall not be required to execute any such document on terms which, in the
Administrative Agent’s opinion, would expose the Administrative Agent to
liability or create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (ii) such release
shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or
obligations of the Borrower or any Subsidiary in respect of) all interests
retained by the Borrower or any Subsidiary, including (without limitation) the
proceeds of the sale, all of which shall continue to constitute part of the
Collateral.


 


ARTICLE IX


 


Miscellaneous


 


SECTION 9.01.  Notices.  (a) Except in the case of notices and
other communications expressly permitted to be given by telephone (and subject
to paragraph (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 telecopy, as
follows:


 


68

















 


	
  (i)  if to the Borrower, to it at:

  	
   

  
	
   

  	
  MYR Group Inc.

  	
   

  	
   

  
	
   

  	
  Three Continental Towers 

  	
   

  	
   

  
	
   

  	
  1701 West Golf Road, Suite 1012

  	
   

  	
   

  
	
   

  	
  Rolling Meadows, Illinois 60008

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  
	
  Attention:

  	
  Marco A. Martinez, Vice

  President, Chief Financial Officer

  and Treasurer

  	
   

  
	
  Facsimile No:

  	
  847-290-1892

  	
   

  
	
   

  	
   

  
	
  (ii)  if to the Administrative
  Agent, the Issuing Bank or the Swingline Lender, to JPMorgan Chase Bank,
  National Association at: 

  
	
   

  	
  Loan and Agency Services Group

  	
   

  
	
   

  	
  Chase Tower IL 1-0010

  	
   

  
	
   

  	
  Chicago, Illinois 60670

  	
   

  
	
   

  	
  Attention:

  	
  April Yebd

  	
   

  
	
   

  	
  Facsimile No:

  	
  312-732-4864

  	
   

  
	
   

  	
   

  	
   

  
	
  (iii)  if to any other Lender, to it at its address or
  telecopy number set forth in its Administrative Questionnaire.

  
											



 


All such notices and other
communications (i) sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received
or (ii) sent by telecopy shall be deemed to have been given when sent, provided 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.


 


(b)           Notices and other communications to
the Lenders hereunder may be delivered or furnished by electronic
communications (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 pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender.  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.  All such notices and
other communications (i) 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 not given during the normal business hours of the recipient, such
notice or communication shall be deemed to have been given at the opening of
business on the next Business Day for the recipient, and (ii) 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 (b)(i) of notification that such notice or communication is
available and identifying the website address therefor.


 


(c)           Any party hereto may change its
address or telecopy number for notices and other communications hereunder by
notice to the other parties hereto.


 


69














 


SECTION 9.02.  Waivers; Amendments.  (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.  The rights and remedies
of the Administrative Agent, the Issuing Bank and the Lenders hereunder and
under any other Loan Document are cumulative and are not exclusive of any
rights or remedies that they would otherwise have.  No waiver of any provision of any Loan
Document or consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.  Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.


 


(b)           Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except (i) in
the case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, (ii) in the case
of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Loan Party or Loan Parties
that are parties thereto; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce or forgive the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon,
or reduce or forgive any interest or fees payable hereunder, without the
written consent of each Lender directly affected thereby, (iii) postpone
any scheduled date of payment of the principal amount of any Loan or LC
Disbursement (other than any reduction of the amount of, or any extension of
the payment date for, the mandatory prepayments required under Section 2.11,
in each case which shall only require the approval of the Required Lenders), or
any date for the payment of any interest, fees or other Obligations payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender directly affected thereby, (iv) change Section 2.18(b) or
(d) in a manner that would alter the manner in which payments are shared,
without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of “Required Lenders” or any other
provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender, (vi) release all or substantially all
of the Subsidiary Guarantors from their obligation under the Subsidiary
Guaranty (except as otherwise permitted herein or in the other Loan Documents),
without the written consent of each Lender, or (viii) except as provided
in clauses (d) and (e) of this Section or in any Collateral
Document, release all or substantially all of the Collateral, without the
written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the Issuing Bank or the Swingline
Lender hereunder without the prior written consent of the Administrative Agent,
the Issuing Bank or the Swingline Lender, as the case may be.  The Administrative Agent may also amend the Commitment Schedule to reflect assignments
entered into pursuant to Section 9.04


 


70





















 


(c)           The Lenders hereby irrevocably authorize the
Administrative Agent, at its option and in its sole discretion, to release any
Liens granted to the Administrative Agent by the Loan Parties on any Collateral
(i) upon the termination of the all Commitments, payment and satisfaction
in full in cash of all Secured Obligations (other than Unliquidated  Obligations), and the cash collateralization
of all Unliquidated Obligations in a manner satisfactory to the Administrative
Agent, (ii) constituting property being sold or disposed of if the Borrower
certifies to the Administrative Agent that the sale or disposition is made in
compliance with the terms of this Agreement (and the Administrative Agent may
rely conclusively on any such certificate, without further inquiry), (iii) constituting
property leased to the Borrower or any Subsidiary under a lease which has
expired or been terminated in a transaction permitted under this Agreement, or (iv) as
required to effect any sale or other disposition of such Collateral in
connection with any exercise of remedies of the Administrative Agent and the
Lenders pursuant to Article VII. 
Any such release shall not in any manner discharge, affect, or impair
the Obligations or any Liens (other than those expressly being released) upon
(or obligations of the Loan Parties in respect of) all interests retained by
the Loan Parties, including the proceeds of any sale, all of which shall
continue to constitute part of the Collateral.


 


(d)           If, in connection with any proposed amendment, waiver or
consent  requiring the consent of “each
Lender” or “each Lender affected thereby,” the consent of the Required Lenders
is obtained, but the consent of other necessary Lenders is not obtained (any
such Lender whose consent is necessary but not obtained being referred to
herein as a “Non-Consenting Lender”), then
the Borrower may elect to replace a Non-Consenting Lender as a Lender party to
this Agreement, provided that, concurrently
with such replacement, (i) another bank or other entity which is
reasonably satisfactory to the Borrower and the Administrative Agent shall
agree, as of such date, to purchase for cash the Loans and other Obligations
due to the Non-Consenting Lender pursuant to an Assignment and Assumption and
to become a Lender for all purposes under this Agreement and to assume all
obligations of the Non-Consenting Lender to be terminated as of such date and
to comply with the requirements of clause (b) of Section 9.04, and (ii) the
Borrower shall pay to such Non-Consenting Lender in same day funds on the day
of such replacement (1) all interest, fees and other amounts then accrued
but unpaid to such Non-Consenting Lender by the Borrower hereunder to and
including the date of termination, including without limitation payments due to
such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an
amount, if any, equal to the payment which would have been due to such Lender
on the day of such replacement under Section 2.16 had the Loans of such
Non-Consenting Lender been prepaid on such date rather than sold to the
replacement Lender.


 


SECTION 9.03.  Expenses; Indemnity;
Damage Waiver.  (a) 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 initial general syndication and distribution (including,
without limitation, via the internet or through a service such as Intralinks)
of the credit facilities provided for herein, the preparation and
administration of the Loan Documents or any amendments, modifications or
waivers of the provisions of the Loan Documents (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the Issuing 


 


71





















 


Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement, collection or
protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during  any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.


 


(b)           The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, penalties, liabilities and related reasonable out-of-pocket expenses,
(other than in respect of Taxes or Other Taxes, in respect of which Section 2.17
shall govern), including the fees, charges and disbursements of any counsel for
any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with any actual or prospective claim, litigation, investigation
or proceeding, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto, relating to (i) the
execution or delivery of the Loan Documents or any agreement or instrument
contemplated thereby, the performance by the parties hereto of their respective
obligations thereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by the Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit) or (iii) any actual or alleged presence or release of
Hazardous Materials on 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; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, penalties, liabilities or related expenses are
determined by a court of competent jurisdiction by final and non-appealable
judgment to have resulted from (x) the gross negligence or willful
misconduct of such Indemnitee (or any Related Party thereof) or (y) the
breach by such Indemnitee (or any Related Party thereof) of its obligations
under the Loan Documents.


 


(c)           To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or
the Swingline Lender, 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, penalty,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline Lender in
its capacity as such.


 


(d)           To the extent permitted by applicable law, each party
hereto shall not assert, and hereby waives, any claim against any other party
hereto and its Related Parties, 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
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or Letter of Credit or the use of the proceeds thereof.


 


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(e)           All amounts due under this Section shall be payable
promptly after written demand therefor.


 


SECTION 9.04.  Successors and
Assigns.  (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit),
except that (i) the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section.  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
(including any Affiliate of the Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section)
and, to the extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent, the Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


(b)(i)       Subject to the conditions set forth in
paragraph (b)(ii) below, any Lender may assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it) with
the prior written consent (such consent not to be unreasonably withheld) of:


 


(A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved
Fund or, if an Event of Default has occurred and is continuing, any other
assignee;


 


(B) the Administrative
Agent, provided that no consent of the Administrative Agent shall be
required for an assignment of any Term Loan to an assignee that is a Lender, an
Affiliate of a Lender or an Approved Fund; and


 


(C) the Issuing Bank, provided
that no consent of the Issuing Bank shall be required for an assignment of all
or any portion of a Term Loan.


 


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


 


(A) except in the case
of an assignment to a Lender or an Affiliate of a Lender or an assignment of
the entire remaining amount of the assigning Lender’s Commitment or Loans of
any Class, the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 or, in the case of a Term Loan,
$1,000,000 unless each of the Borrower and the Administrative Agent otherwise
consent, provided that no such consent of
the Borrower shall be required if an Event of Default has occurred and is
continuing;


 


(B) 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, provided that this clause shall not be construed
to prohibit the assignment of


 


73

















 


a
proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans;


 


(C) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500; and


 


(D) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire in which the assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain, subject to
Section 9.12, material non-public information about the Borrower and its Subsidiaries)
will be made available and who may receive such information in accordance with
the assignee’s compliance procedures and applicable laws, including Federal and
state securities laws.


 


For the purposes of this Section 9.04(b),
the term “Approved Fund” has the following
meaning:


 


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


 


(iii)          Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall be a
party hereto 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 2.15, 2.16, 2.17 and 9.03).  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 9.04
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 paragraph (c) of
this Section.


 


(iv)          The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices 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 Commitment of, and principal
amount of the Loans and LC Disbursements 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, the Issuing Bank 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, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.


 


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(v)           Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignee’s
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the
Register; provided that if either the
assigning Lender or the assignee shall have failed to make any payment required
to be made by it pursuant to Section 2.05, 2.06(d) or (e), 2.07(b),
2.18(d) or 9.03(c), the Administrative Agent shall have no obligation to
accept such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together
with all accrued interest thereon.  No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.


 


(c)(i)        Any Lender may, without the consent of
the Borrower, the Administrative Agent, the Issuing Bank or the Swingline
Lender, sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided
that (A) such Lender’s obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent, the Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso
to Section 9.02(b) that affects such Participant.  Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08
as though it were a Lender, provided such Participant agrees to be subject to Section 2.18(c) as
though it were a Lender.


 


(ii)           A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 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 2.17 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 2.17(e) as
though it were a Lender.


 


(d)           Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that


 


75

















 


no
such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.


 


SECTION 9.05.  Survival.  All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments 
delivered in connection with or pursuant to this Agreement or any other
Loan Document shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of
any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or any Lender
may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid or any Letter of Credit is outstanding and so long as
the Commitments have not expired or terminated. 
The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII
shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.


 


SECTION 9.06.  Counterparts;
Integration; Effectiveness. 
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents and
any separate letter agreements with respect to fees payable to the
Administrative Agent 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 which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.  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.


 


SECTION 9.07.  Severability.  Any provision of any Loan Document held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions thereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


 


SECTION 9.08.  Right of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Borrower
or


 


76





















 


any Subsidiary Guarantor against any of and
all the Secured Obligations held by such Lender, irrespective of whether or not
such Lender shall have made any demand under the Loan Documents and although
such obligations may be unmatured.  The
applicable Lender shall notify the Borrower and the Administrative Agent of
such set-off or application, provided that
any failure to give or any delay in giving such notice shall not affect the
validity of any such set-off or application under this Section.  The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.


 


SECTION 9.09.  Governing Law;
Jurisdiction; Consent to Service of Process.  (a)The Loan Documents (other than those
containing a contrary express choice of law provision) shall be governed by and
construed in accordance with the laws of the State of New York, but giving
effect to federal laws applicable to national banks.


 


(b)           The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof in any action or proceeding arising out of or
relating to any Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by 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 any other Loan Document shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement or any other
Loan Document against any Loan Party or its properties in the courts of any
jurisdiction.


 


(c)           The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or any
other Loan Document in any court referred to in paragraph (b) of this
Section.  Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.


 


(d)           Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01.  Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.


 


SECTION 9.10.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY 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, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).


 


77





















 


EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY 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 BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


SECTION 9.11.  Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.


 


SECTION 9.12.  Confidentiality.  Each of the Administrative Agent, the Issuing
Bank and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its
and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by Requirement of Law or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection
with the exercise of any remedies hereunder or any suit, 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, its Subsidiaries and their obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower.  For the purposes of this Section, “Information” means all information received from
the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, the Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by the Borrower.  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.


 


SECTION 9.13.  Several Obligations;
Nonreliance; Violation of Law. 
The respective obligations of the Lenders hereunder are several and not
joint and the failure of any Lender to make any Loan or perform any of its
obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. Each Lender hereby represents that it is not relying on
or looking to any margin stock for the repayment of the Borrowings provided for
herein.  Anything contained in this
Agreement to the contrary notwithstanding, neither the Issuing Bank nor any
Lender shall be obligated to extend credit to the Borrower in violation of any
Requirement of Law.


 


78





















 


 


SECTION 9.14.  USA PATRIOT Act.  Each Lender that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”) hereby notifies the Borrower that
pursuant to the requirements of the Act, it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such
Lender to identify the Borrower in accordance with the Act.


 


SECTION 9.15.  Disclosure.  The Borrower and each Lender hereby
acknowledges and agrees that the Administrative Agent and/or its Affiliates
from time to time may hold investments in, make other loans to or have other
relationships with any of the Borrower, its Subsidiaries and their respective
Affiliates.


 


SECTION 9.16.  Appointment for
Perfection.   Each Lender hereby appoints each other Lender
as its agent for the purpose of perfecting Liens, for the benefit of the
Administrative Agent and the Holders of Secured Obligations, in assets which,
in accordance with Article 9 of the UCC or any other applicable law can be
perfected only by possession.  Should any
Lender (other than the Administrative Agent) obtain possession of any such
Collateral, such Lender shall notify the Administrative Agent thereof, and,
promptly upon the Administrative Agent’s request therefor shall deliver such
Collateral to the Administrative Agent or otherwise deal with such Collateral
in accordance with the Administrative Agent’s instructions.


 


[Signature
Pages Follow]


 


79

















 


 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.


 


	
   

  	
  MYR
  GROUP INC., as the Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Marco A. Martinez

  	
   

  
	
   

  	
   

  	
  Name
  Marco A. Martinez

  
	
   

  	
   

  	
  Title:
  V.P., CFO and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, NATIONAL

  ASSOCIATION, individually, as Administrative

  Agent, Issuing Bank and Swingline Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Dawn Mase

  	
   

  
	
   

  	
   

  	
  Name
  Dawn Mase

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITIBANK,
  N.A., individually and as

  Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Scott A. Miller

  	
   

  
	
   

  	
   

  	
  Name:
  Scott A. Miller

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIFTH
  THIRD BANK, individually and as Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Neil G. Mesch

  	
   

  
	
   

  	
   

  	
  Name:
  Neil G. Mesch

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Frank J. Jancar

  	
   

  
	
   

  	
   

  	
  Name:
  Frank J. Jancar

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NATIONAL
  CITY BANK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Renee M. Bonnell

  	
   

  
	
   

  	
   

  	
  Name:
  Renee M. Bonnell

  
	
   

  	
   

  	
  Title:
  Vice President

  
							



 


 


Signature Page to Credit Agreement

MYR Group Inc.

August 2007