exv10w1



 





Exhibit 10.1




 

 






CREDIT AGREEMENT




Dated as of November 14, 2007




among




ABM INDUSTRIES INCORPORATED,




BANK OF AMERICA, N.A.,

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




JP MORGAN CHASE BANK, N.A.

and

KEYBANK NATIONAL ASSOCIATION,

as Co-Syndication Agents,




U.S. BANK NATIONAL ASSOCIATION

and

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agents,




and




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC,

Sole Lead Arranger and Sole Book Manager




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page
	ARTICLE I
	 	 	 	 
	DEFINITIONS AND ACCOUNTING TERMS
	 	 	 	 
	 
	 	 	 	 
	1.1 Defined Terms

	 	 	1	 
	 
	 	 	 	 
	1.2 Other Interpretive Provisions

	 	 	20	 
	 
	 	 	 	 
	1.3 Accounting Terms

	 	 	20	 
	 
	 	 	 	 
	1.4 Rounding

	 	 	21	 
	 
	 	 	 	 
	1.5 References to Agreements and Laws

	 	 	21	 
	 
	 	 	 	 
	1.6 Times of Day

	 	 	21	 
	 
	 	 	 	 
	1.7 Letter of Credit Amounts

	 	 	21	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	The COMMITMENTS and Credit Extensions
	 	 	 	 
	 
	 	 	 	 
	2.1 Revolving Loans

	 	 	22	 
	 
	 	 	 	 
	2.2 Procedure for Borrowing, Conversion and Continuation of Revolving Loans

	 	 	22	 
	 
	 	 	 	 
	2.3 Letters of Credit

	 	 	23	 
	 
	 	 	 	 
	2.4 Swing Line Loans

	 	 	30	 
	 
	 	 	 	 
	2.5 Prepayments

	 	 	33	 
	 
	 	 	 	 
	2.6 Termination or Reduction of Commitments

	 	 	34	 
	 
	 	 	 	 
	2.7 Repayment of Loans

	 	 	34	 
	 
	 	 	 	 
	2.8 Interest

	 	 	35	 
	 
	 	 	 	 
	2.9 Fees

	 	 	35	 
	 
	 	 	 	 
	2.10 Computation of Interest and Fees

	 	 	36	 
	 
	 	 	 	 
	2.11 Evidence of Debt

	 	 	36	 
	 
	 	 	 	 
	2.12 Payments Generally

	 	 	37	 
	 
	 	 	 	 
	2.13 Sharing of Payments

	 	 	38	 
	 
	 	 	 	 
	2.14 Increase in Commitments

	 	 	39	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	 	 
	 
	 	 	 	 
	3.1 Taxes

	 	 	40	 
	 
	 	 	 	 
	3.2 Illegality

	 	 	41	 
	 
	 	 	 	 
	3.3 Increased Cost and Reduced Return; Capital Adequacy;
Reserves on Eurodollar Rate Loans

	 	 	41	 






i 









 






	 	 	 	 	 
	Section	 	Page
	3.4 Funding Losses

	 	 	42	 
	 
	 	 	 	 
	3.5 Inability to Determine Rates

	 	 	43	 
	 
	 	 	 	 
	3.6 Matters Applicable to all Requests for Compensation

	 	 	43	 
	 
	 	 	 	 
	3.7 Survival

	 	 	43	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	CONDITIONS PRECEDENT TO Credit Extensions
	 	 	 	 
	 
	 	 	 	 
	4.1 Conditions of Initial Credit Extension

	 	 	43	 
	 
	 	 	 	 
	4.2 Conditions to all Credit Extensions

	 	 	45	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	 	 	 	 
	5.1 Existence, Qualification and Power; Compliance with Laws

	 	 	45	 
	 
	 	 	 	 
	5.2 Authorization; No Contravention

	 	 	46	 
	 
	 	 	 	 
	5.3 Third Party Authorization; Other Consents

	 	 	46	 
	 
	 	 	 	 
	5.4 Binding Effect

	 	 	46	 
	 
	 	 	 	 
	5.5 Litigation

	 	 	46	 
	 
	 	 	 	 
	5.6 No Default

	 	 	46	 
	 
	 	 	 	 
	5.7 ERISA Compliance

	 	 	47	 
	 
	 	 	 	 
	5.8 Ownership of Property; Liens

	 	 	47	 
	 
	 	 	 	 
	5.9 Taxes

	 	 	47	 
	 
	 	 	 	 
	5.10 Financial Statements; No Material Adverse Effect

	 	 	47	 
	 
	 	 	 	 
	5.11 OneSource Acquisition

	 	 	48	 
	 
	 	 	 	 
	5.12 Environmental Compliance

	 	 	49	 
	 
	 	 	 	 
	5.13 Insurance

	 	 	49	 
	 
	 	 	 	 
	5.14 Subsidiaries

	 	 	49	 
	 
	 	 	 	 
	5.15 Margin Regulations; Investment Company Act

	 	 	49	 
	 
	 	 	 	 
	5.16 Full Disclosure

	 	 	49	 
	 
	 	 	 	 
	5.17 Compliance with Laws

	 	 	50	 
	 
	 	 	 	 
	5.18 Intellectual Property; Licenses, Etc

	 	 	50	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	AFFIRMATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	6.1 Financial Statements

	 	 	50	 
	 
	 	 	 	 
	6.2 Certificates; Other Information

	 	 	51	 
	 
	 	 	 	 
	6.3 Notices

	 	 	53	 






ii 









 






	 	 	 	 	 
	Section	 	Page
	6.4 Payment of Obligations

	 	 	53	 
	 
	 	 	 	 
	6.5 Preservation of Existence, Etc

	 	 	53	 
	 
	 	 	 	 
	6.6 Maintenance of Properties

	 	 	53	 
	 
	 	 	 	 
	6.7 Maintenance of Insurance

	 	 	54	 
	 
	 	 	 	 
	6.8 Compliance with Laws

	 	 	54	 
	 
	 	 	 	 
	6.9 Books and Records

	 	 	54	 
	 
	 	 	 	 
	6.10 Inspection Rights

	 	 	54	 
	 
	 	 	 	 
	6.11 Use of Proceeds

	 	 	54	 
	 
	 	 	 	 
	6.12 Further Assurances

	 	 	54	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	NEGATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	7.1 Liens

	 	 	55	 
	 
	 	 	 	 
	7.2 Dispositions

	 	 	56	 
	 
	 	 	 	 
	7.3 Fundamental Changes

	 	 	57	 
	 
	 	 	 	 
	7.4 Investments

	 	 	57	 
	 
	 	 	 	 
	7.5 Indebtedness

	 	 	58	 
	 
	 	 	 	 
	7.6 Use of Proceeds

	 	 	58	 
	 
	 	 	 	 
	7.7 Restricted Payments

	 	 	58	 
	 
	 	 	 	 
	7.8 Change in Nature of Business

	 	 	59	 
	 
	 	 	 	 
	7.9 Transactions with Affiliates

	 	 	59	 
	 
	 	 	 	 
	7.10 Subsidiary Dividends

	 	 	59	 
	 
	 	 	 	 
	7.11 Financial Covenants

	 	 	59	 
	 
	 	 	 	 
	7.12 Amendments to OneSource Merger Agreement

	 	 	60	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	EVENTS OF DEFAULT AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	8.1 Events of Default

	 	 	60	 
	 
	 	 	 	 
	8.2 Remedies Upon Event of Default

	 	 	62	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	ADMINISTRATIVE AGENT
	 	 	 	 
	 
	 	 	 	 
	9.1 Appointment and Authorization of Administrative Agent

	 	 	63	 
	 
	 	 	 	 
	9.2 Delegation of Duties

	 	 	63	 
	 
	 	 	 	 
	9.3 Exculpatory Provisions

	 	 	63	 
	 
	 	 	 	 
	9.4 Reliance by Administrative Agent

	 	 	64	 






iii 









 






	 	 	 	 	 
	Section	 	Page
	9.5 Notice of Default

	 	 	65	 
	 
	 	 	 	 
	9.6 Credit Decision; Disclosure of Information by Administrative Agent

	 	 	65	 
	 
	 	 	 	 
	9.7 Administrative Agent in its Individual Capacity

	 	 	65	 
	 
	 	 	 	 
	9.8 Successor Administrative Agent

	 	 	65	 
	 
	 	 	 	 
	9.9 Administrative Agent May File Proofs of Claim

	 	 	66	 
	 
	 	 	 	 
	9.10 Guaranty Matters

	 	 	67	 
	 
	 	 	 	 
	9.11 Other Agents

	 	 	67	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	10.1 Amendments, Etc

	 	 	67	 
	 
	 	 	 	 
	10.2 Notices and Other Communications; Facsimile Copies

	 	 	69	 
	 
	 	 	 	 
	10.3 No Waiver; Cumulative Remedies

	 	 	70	 
	 
	 	 	 	 
	10.4 USA Patriot Act Notice

	 	 	70	 
	 
	 	 	 	 
	10.5 Expenses; Indemnity; Damage Waiver

	 	 	71	 
	 
	 	 	 	 
	10.6 Payments Set Aside

	 	 	72	 
	 
	 	 	 	 
	10.7 Successors and Assigns

	 	 	73	 
	 
	 	 	 	 
	10.8 Confidentiality

	 	 	77	 
	 
	 	 	 	 
	10.9 Set-off

	 	 	77	 
	 
	 	 	 	 
	10.10 Interest Rate Limitation

	 	 	78	 
	 
	 	 	 	 
	10.11 Integration

	 	 	78	 
	 
	 	 	 	 
	10.12 Survival of Representations and Warranties

	 	 	78	 
	 
	 	 	 	 
	10.13 Tax Forms

	 	 	78	 
	 
	 	 	 	 
	10.14 Counterparts

	 	 	80	 
	 
	 	 	 	 
	10.15 Severability

	 	 	80	 
	 
	 	 	 	 
	10.16 Automatic Debits of Fees

	 	 	80	 
	 
	 	 	 	 
	10.17 Governing Law

	 	 	81	 
	 
	 	 	 	 
	10.18 Waiver of Right to Trial by Jury; Judicial Reference

	 	 	81	 
	 
	 	 	 	 
	10.19 Termination of Existing Credit Agreement

	 	 	82	 






iv 









 






	 
	SCHEDULES

	1    Existing Letters of Credit

	2.1 Commitments and Pro Rata Shares

	7.10 Restrictions on Subsidiary Dividends

	10.2 Certain Eurodollar and Domestic Lending Offices, Addresses for Notices

	 

	EXHIBITS

	Form of

	A            Revolving Loan Notice

	B            Swing Line Loan Notice

	C            Note

	D            Compliance Certificate

	E            Assignment and Assumption

	F            Guaranty

	G            Opinion of Orrick, Herrington & Sutcliffe LLP

	H            Opinion of Linda S. Auwers

	I              Form of Increase Request








v 









 








CREDIT AGREEMENT




     This CREDIT AGREEMENT (the “Agreement”) dated as of November 14, 2007 is among ABM
INDUSTRIES INCORPORATED, a Delaware corporation (the “Company”), each lender from time to
time party hereto (collectively, the “Lenders” and individually, each a “Lender”)
and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.



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



     In consideration of the mutual agreements contained herein the parties hereto agree as
follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




     1.1 Defined Terms. As used in this Agreement, the following terms have the respective
meanings set forth below:



     “Acquisition” means any transaction or series of related transactions for the purpose
of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the
assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership interests or equity of any Person or
otherwise causing any Person to become a Subsidiary or (c) a merger or consolidation or any other
combination with another Person (other than a Person that is a Subsidiary); provided that the
Company or a Subsidiary is the surviving entity.



     “Adjusted Consolidated EBITDA” means, for any period, Consolidated EBITDA for such
period; provided that in calculating Adjusted Consolidated EBITDA,




     (a) if the Company or any Subsidiary makes a Permitted Acquisition during such period
for aggregate consideration in excess of $10,000,000, the EBITDA of the Person or assets
acquired (and, solely for the purpose of determining pro forma compliance with financial
covenants pursuant to Section 7.11, any Person or assets to be acquired) shall be
included on a pro forma basis for such period (assuming the consummation of such Acquisition
and the incurrence or assumption of any Indebtedness in connection therewith occurred on the
first day of such period, but adjusted to add back certain non-recurring expenses to the
extent disclosed to and reasonably approved by the Required Lenders) based upon (i) to the
extent available, (x) the audited consolidated financial statements of such acquired Person
(or with respect to such acquired assets) as at the end of the fiscal year of such Person
(or of the seller of such assets) preceding such Acquisition and (y) any subsequent
unaudited financial statements for such Person (or with respect to such acquired assets) for
the period prior to such Acquisition so long as such statements were prepared on a basis
consistent with the audited financial statements



 









 







referred to above or (ii) to the extent the items listed in clause (i) are not
available, such historical financial statements and other information is disclosed to, and
to the extent requested by any Lender reasonably approved by, the Required Lenders; and




     (b) if the Company or any Subsidiary makes a Disposition (or a series of related
Dispositions) during such period for aggregate consideration in excess of $10,000,000, the
EBITDA of any Person (or division or similar business unit) disposed of by the Company or
any Subsidiary during such period shall be excluded on a pro forma basis for such period
(assuming the consummation of such Disposition occurred on the first day of such period).



     “Adjusted Consolidated EBITDAR” means, for any period, the sum of (a) Adjusted
Consolidated EBITDA for such period plus (b) Adjusted Rental Expense for such period.



     “Adjusted Rental Expense” means, for any period, rental expense for such period,
adjusted and calculated in the same manner as Adjusted Consolidated EBITDA for such period.



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



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.2, or such other address or account as the
Administrative Agent may from time to time notify the Company and the Lenders.



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



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified. “Control” means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto.



     “Agent-Related Persons” means the Administrative Agent together with its Affiliates
(including, in the case of Bank of America in its capacity as the Administrative Agent, the
Arranger), and the Related Parties of such Persons and Affiliates.



     “Aggregate Commitments” means the Commitments of all the Lenders. The Aggregate
Commitments at the Effective Time are $450,000,000.



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



     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Leverage Ratio as set forth below:



2









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Eurodollar	 	 	 	 
	 	 	 	 	Rate/IBOR	 	 	 	 
	 	 	 	 	Rate/Letters of	 	 	 	 
	Pricing Level	 	Leverage Ratio	 	Credit	 	Base Rate Loans	 	Non-Use Fee
	1

	 	3 2.75 to 1.0
	 	1.375%
	 	0.375%
	 	0.250%
	2
	 	3 2.25 to 1.0
but 
<2.75 to 1.0
	 	1.125%
	 	0.125%
	 	0.225%
	3
	 	3 1.50 to 1.0
but 
<2.25 to 1.0
	 	1.000 %
	 	0.000%
	 	0.200%
	4
	 	3 0.75 to 1.0
but 
<1.50 to 1.0
	 	0.875%
	 	0.000%
	 	0.150%
	5
	 	< 0.75 to 1.0
	 	0.625%
	 	0.000%
	 	0.125%






     Initially, the Pricing Level shall be Pricing Level 1. The Pricing Level shall be adjusted,
to the extent applicable, 60 days (or, in the case of the last fiscal quarter of any fiscal year,
90 days) after the end of each fiscal quarter (beginning with the fiscal quarter ending January 31,
2008) based on the Leverage Ratio as of the last day of such fiscal quarter; provided that
if the Company fails to deliver the financial statements required by Section 6.1(a) or
(b), as applicable, and the related Compliance Certificate required by Section
6.2(b) by the 60th day (or, if applicable, the 90th day) after any fiscal quarter, Pricing
Level 1 shall apply until such financial statements are delivered. If, as a result of any
restatement of or other adjustment to the financial statements of the Company or for any other
reason (excluding any restatement or other adjustment resulting from a retrospective change in
GAAP), the Lenders determine that (a) the Leverage Ratio as calculated by the Company as of any
applicable date was inaccurate and (b) a proper calculation of the Leverage Ratio would have
resulted in different pricing for any period, then (i) if the proper calculation of the Leverage
Ratio would have resulted in higher pricing for such period, the Company shall automatically and
retroactively be obligated to pay to the Administrative Agent for the benefit of the applicable
Lenders, promptly on demand by the Administrative Agent, an amount equal to the excess of the
amount of interest and fees that should have been paid for such period over the amount of interest
and fees actually paid for such period; and (ii) if the proper calculation of the Leverage Ratio
would have resulted in lower pricing for such period, the Lenders shall have no obligation to repay
any interest or fees to the Company; provided that if, as a result of any restatement or
other event a proper calculation of the Leverage Ratio would have resulted in higher pricing for
one or more periods and lower pricing for one or more other periods (due to the shifting of income
or expenses from one period to another period or any similar reason), then the amount payable by
the Company pursuant to clause (i) above shall be based upon the excess, if any, of the
amount of interest and fees that should have been paid for all applicable periods over the amount
of interest and fees paid for all such periods.



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



3









 





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



     “Attorney Costs” means (a) all reasonable fees, expenses and disbursements of any law
firm or other external counsel and (b) without duplication, the allocated cost of internal legal
services and all expenses and disbursements of internal counsel to the extent, in the case of this
clause (b), related to the enforcement or protection of rights and remedies hereunder or
under the other Loan Documents during the existence of an Event of Default.



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



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended October 31, 2006, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year, including the notes thereto.



     “Availability Period” means the period from the Effective Time to the earliest of (a)
the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section
2.6, and (c) the date of termination of the commitment of each Lender to make Loans and of the
obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.2.



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



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



     “Base Rate Loan” means a Revolving Loan or a Swing Line Loan, as the context requires,
that bears interest by reference to the Base Rate.



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



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, San Francisco
and the state where the Administrative Agent’s Office is located and, if such day relates to any
Eurodollar Rate Loan or IBOR Rate Loan, means any such day on which dealings



4









 







in Dollar deposits are conducted by and between banks in the London interbank eurodollar
market.



     “Cash Collateralize” has the meaning specified in Section 2.3(g).



     “Change of Control” means, with respect to any Person, an event or series of events by
which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, but excluding the Rosenberg Family, any employee benefit plan of such person
or its subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such person or group has the right to acquire (such
right, an “option right”), whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of 25% or more of the equity securities of such Person
entitled to vote for members of the board of directors or equivalent governing body of such Person
on a fully-diluted basis (and taking into account all such securities that such person or group has
the right to acquire pursuant to any option right).



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans to
the Company pursuant to Section 2.1, (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.1
or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.



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



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



     “Consolidated EBITDA” means, for any period, an amount equal to Consolidated Net
Income for such period plus, to the extent deducted in calculating such Consolidated Net
Income, (i) Consolidated Interest Charges, (ii) provisions for federal, state, local and foreign
income taxes payable by the Company and its Subsidiaries, (iii) depreciation and amortization
expense, (iv) all non-cash, non-recurring and extraordinary charges (including charges resulting
from the application of Financial Accounting Standard No. 142) and (v) stock based compensation
expense and (vi) for the periods ending January 31, 2008, April 30, 2008, July 31, 2008, and
October 31, 2008, $30,000,000, minus, to the extent included in such Consolidated Net
Income, all non-recurring and extraordinary gains or income.



     “Consolidated Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum, without duplication, of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the Company and its Subsidiaries in
connection with borrowed money (including capitalized interest) or the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP, and (b) the portion
of rent expense of the Company and its Subsidiaries with respect to such period under



5









 







capital leases or with respect to Synthetic Lease Obligations that, in each case, is treated
as interest in accordance with GAAP.



     “Consolidated Net Income” means, for any period, the consolidated net income of the
Company and its Subsidiaries for such period.



     “Consolidated Net Worth” means, as of any date of determination, Shareholders’ Equity
on such date.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



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



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



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



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would (if not cured or otherwise
remedied during such time) be an Event of Default.



     “Default Rate” means (a) with respect to Base Rate Loans, an interest rate equal to
(i) the Base Rate plus (ii) 2% per annum; (b) with respect to Eurodollar Rate Loans, an
interest rate equal to (i) the Eurodollar Rate plus (ii) the Applicable Rate plus
(iii) 2% per annum; and (c) with respect to IBOR Rate Loans, an interest rate equal to (i) the IBOR
Rate plus (ii) the Applicable Rate plus (iii) 2% per annum, in each case to the
fullest extent permitted by applicable Laws.



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



     “Disclosure Certificate” means the certificate dated November 14, 2007 delivered by
the Company to the Administrative Agent and the Lenders.



6









 





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



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



     “Earn-out” means, with respect to any Person, any payment that may be required to be
made by such Person in connection with an Acquisition, where the obligation of such Person to make
such payment (or the amount thereof) is contingent upon the financial or other performance of the
Person or asset acquired. The amount of any Earn-out shall equal the anticipated amount thereof as
reasonably determined in good faith by the Company.



     “EBITDA” means, for any Person for any period, the consolidated net income of such
Person for such period plus, to the extent deducted in determining such consolidated net income,
interest expense, income tax expense, depreciation and amortization of such Person.



     “Effective Time” means the time at which all the conditions precedent in Section
4.1 are satisfied or waived in accordance with Section 4.1 (or, in the case of
Section 4.1(b), waived by the Person entitled to receive the applicable payment).



     “Eligible Assignee” has the meaning specified in Section 10.7(g).



     “Environmental Claims” means all claims, however asserted, by any Governmental
Authority or other Person alleging potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the environment.



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



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



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment



7









 







as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Company or any ERISA Affiliate.



     “Eurodollar Interest Period” means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a
Eurodollar Rate Loan and ending on the date one or two weeks or one, two, three or six months
thereafter (or on such other date as all Lenders shall agree), as selected by the Company in a
Revolving Loan Notice; provided that:




     (a) any Eurodollar Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the following Business Day unless such following Business
Day falls in another calendar month, in which case such Eurodollar Interest Period shall end
on the preceding Business Day;




     (b) except as otherwise agreed by all Lenders, any Eurodollar Interest Period that
begins on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Eurodollar Interest
Period) shall end on the last Business Day of the calendar month at the end of such
Eurodollar Interest Period; and




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



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



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



     “Event of Default” has the meaning specified in Section 8.1.



8









 





     “Existing Credit Agreement” means the Credit Agreement dated as of May 25, 2005 among
the Company, Bank of America, as administrative agent, and a syndicate of lenders.



     “Existing Letters of Credit” means the letters of credit listed on Schedule 1
that were issued under the Existing Credit Agreement or the OneSource Credit Agreement.



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



     “Fee Letter” means the letter agreement dated October 17, 2007 among the Company, the
Administrative Agent and the Arranger.



     “Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of
(a)  Adjusted Consolidated EBITDAR for the period of the four prior fiscal quarters ending on such
date to (b) the sum, without duplication, of (i) Consolidated Interest Charges for such period plus
(ii) Adjusted Rental Expense for such period plus (iii) scheduled principal payments of long-term
Indebtedness required to be made during such period.



     “Foreign Lender” has the meaning specified in Section 10.13(a).



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



     “Funded Indebtedness” means all Indebtedness of the Company and its Subsidiaries,
excluding (i) contingent obligations in respect of commercial letters of credit and Guarantees
(except, in each case, to the extent constituting Guarantees in respect of Indebtedness of a Person
other than the Company or any Subsidiary), (ii) obligations under Swap Contracts and (iii)
Indebtedness of the Company to Subsidiaries and Indebtedness of Subsidiaries to the Company or to
other Subsidiaries.



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



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court,



9









 







administrative tribunal, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.



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



     “Guarantors” means all Subsidiaries of the Company that have executed a counterpart of
the Guaranty.



     “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative
Agent on behalf of the Lenders, substantially in the form of Exhibit F.



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



     “Honor Notice Date” has the meaning specified in Section 2.3(c)(i).



     “IBOR Interest Period” means, with respect to any IBOR Rate Loan, each period
commencing on the date such Loan is made or continued or converted from a Base Rate Loan to an IBOR
Rate Loan or the last day of the next preceding IBOR Interest Period with respect to such IBOR Rate
Loan, and ending one, two, three, four, five, six or seven days thereafter, as the Company may
select as provided in Section 2.4(b). Notwithstanding the foregoing: (a) each IBOR
Interest Period shall end on a Business Day; (b) no IBOR Interest Period may extend beyond the
scheduled Maturity Date; and (c) no more than six IBOR Interest Periods shall be in effect at the
same time.



10









 





     “IBOR Rate” means the interest rate at which Bank of America’s Grand Cayman Banking
Center, Grand Cayman, British West Indies, would offer Dollar deposits for the applicable Interest
Period to other major banks in the offshore Dollar interbank market.



     “IBOR Rate Loan” means a Swing Line Loan that bears interest at a rate based on the
IBOR Rate.



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




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




     (ii) all obligations of such Person to pay the deferred purchase price of property or
services (other than (i) trade accounts payable in the ordinary course of business and (ii)
Earn-outs owed by such Person with respect to any Acquisition);




     (iii) all Attributable Indebtedness of such Person under capital leases and with
respect to Synthetic Lease Obligations;




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




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




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




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



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or similar entity in which such Person is a general partner or with respect to which
such Person has liability under applicable laws for the obligations of such entity, except to the
extent that such Indebtedness is expressly made non-recourse to such Person. The amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such
date.



     “Indemnitee” has the meaning set forth in Section 10.5.



     “Information” has the meaning set forth in Section 10.8.



11









 





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



     “Interest Period” means a Eurodollar Interest Period or an IBOR Interest Period, as
the context requires.



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



     “IP Rights” has the meaning set forth in Section 5.18.



     “IRS” means the United States Internal Revenue Service.



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



     “Joint Venture” means a partnership, limited liability company, joint venture or other
similar legal arrangement (whether created by contract or conducted through a separate legal
entity) now or hereafter formed by the Company or any of its Subsidiaries with another Person in
order to conduct a common venture or enterprise with such Person.



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



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



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Revolving
Borrowing.



12









 





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



     “L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



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



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



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



     “Letter of Credit” has the meaning specified in Section 2.3(a)(i).



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



     “Leverage Ratio” means, as of any date of determination, for the Company and its
Subsidiaries on a consolidated basis, the ratio of (a) Funded Indebtedness of the Company and its
Subsidiaries as of such date to (b) Adjusted Consolidated EBITDA for the period of the four fiscal
quarters ending on such date.



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



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



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



     “Loan Parties” means, collectively, the Company and each Guarantor, it being
understood that “Loan Parties” shall not include any Subsidiary that has been released as a
Guarantor pursuant to Section 9.10.



13









 





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



     “Material Financial Amount” means, at any time, 7.5% of Consolidated Net Worth as
shown in the most recent financial statements delivered pursuant to Section 6.1.



     “Maturity Date” means (a) November 14, 2012 or (b) such earlier date upon which the
Loans and other Obligations become due in accordance with the terms hereof.



     “Modification” means, with respect to any Letter of Credit, any amendment to such
Letter of Credit to amend or otherwise modify such Letter of Credit (including any extension of the
expiry date therefor or increase in the amount thereof). The term “Modify” has a correlative
meaning.



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



     “Note” means a promissory note made by the Company in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit C.



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



     “OneSource” means OneSource Services Inc., a company organized under the laws of
Belize.



     “OneSource Acquisition” means the acquisition of OneSource by the Company pursuant to
the OneSource Merger Agreement.



     “OneSource Credit Agreement” means the Credit Agreement dated as of December 22, 2005
among OneSource Holdings Inc., various Subsidiaries thereof, various financial institutions and
Bank of America, as agent.



     “OneSource Merger Agreement” means the Agreement and Plan of Merger dated as of
October 7, 2007 among OneSource, the Company and OCo Merger Sub LLC, including all schedules,
annexes and exhibits thereto.



14









 





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



     “Outstanding Amount” means (a) with respect to Revolving Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and repayments occurring on such date; and (b) with respect to any L/C Obligations on any date, the
amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other change in the aggregate amount of the L/C Obligations as of
such date, including as a result of reimbursement of any outstanding unpaid drawing under any
Letter of Credit or any reduction in the maximum amount available for drawing under any Letter of
Credit taking effect on such date.



     “Participant” has the meaning specified in Section 10.7(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



     “Permitted Acquisition” means (a) the OneSource Acquisition and (b) any other
Acquisition that meets each of the following requirements: (i) the Person to be acquired is, or
the assets to be acquired are for use in, in the same or similar line of business as the Company or
a line of business that is complementary thereto, (ii) in the case of the Acquisition of a Person,
such Acquisition has been approved by the board of directors or similar governing body and, if
applicable, the shareholders of the Person to be acquired, (iii) the Company is and will be in pro
forma compliance with each of the financial covenants contained in Section 7.11 before and
after giving effect to such Acquisition, (iv) the aggregate consideration (other than consideration
to be paid in common stock of the Company, but including Earn-outs, cash and assumed debt) to be
paid by the Company in connection with such Acquisition (or any series of related Acquisitions)
does not exceed Consolidated EBITDA for the most recent period of four consecutive fiscal quarters
for which the Company has delivered financial statements pursuant to Section 6.1, (v) no
Default shall exist at the time of, or shall result from, such Acquisition and (vi) if the
aggregate consideration (including consideration to be paid in common stock of the Company,
Earn-outs, cash and assumed debt) to be paid by the Company in connection with such Acquisition (or
a series of related Acquisitions) is equal to or greater than $50,000,000, the



15









 







Company has delivered to the Administrative Agent at least 10 days prior to the consummation
of such Acquisition a pro forma Compliance Certificate for the fiscal quarter most recently ended
(calculated as if such Acquisition had occurred on the first day of the period of four consecutive
fiscal quarters ending on the last day of such fiscal quarter).



     “Permitted Investments” means (a) direct obligations of, or obligations fully
guaranteed by, the United States or any agency thereof; (b) direct obligations of, or obligations
fully guaranteed by, any State, territory or possession of the United States (including the
District of Columbia) or any agency thereof which have a short-term rating of at least SP-1 by S&P
(as defined below) or MIG-1 by Moody’s (as defined below) or a long-term rating of at least A by
S&P or A1 by Moody’s (or, in each case, the equivalent thereof by another Rating Agency (as defined
below)); (c) commercial paper issued by corporations or financial institutions which have the
highest short-term or long-term rating, as applicable, of at least one Rating Agency and at least
the second highest short-term or long-term rating, as applicable, of another Rating Agency; (d)
unsecured promissory notes (other than commercial paper) issued by corporations or financial
institutions which have a short-term debt rating of at least A-1 from S&P and P-1 from Moody’s (or
the equivalent thereof by another Rating Agency) and a long-term debt rating of at least A from S&P
and A-1 from Moody’s (or the equivalent thereof by another Rating Agency); (e) time deposits with,
and certificates of deposit, acceptances and similar instruments issued by, (i) any Lender or (ii)
any office of any bank or trust company whose certificates of deposit are rated in one of the two
highest grades by at least one Rating Agency; (f) repurchase agreements entered into with a bank or
trust company described in clause (e) (or with securities broker-dealers of nationally
recognized standing) with respect to obligations described in clause (a); (g) obligations
of United States or foreign commercial banks having a minimum short-term debt rating of F1 from
Fitch; and (h) shares of open-ended investment companies registered under the Investment Company
Act of 1940; provided that each such investment company complies with Rule 2a-7 of the
Securities Exchange Act of 1934, maintains a constant net asset value, offers daily liquidity and
has a weighted average maturity of not more than 90 days. For purposes of the foregoing, “Rating
Agency” means S&P, Moody’s, Fitch or any other nationally-recognized credit rating agency; “Fitch”
means Fitch, Inc., doing business as Fitch Ratings; “Moody’s means Moody’s Investors Service, Inc.;
and “S&P” means Standard & Poor’s Rating Services.



     “Permitted Long-Term Indebtedness” means Indebtedness of the Company or a Guarantor
which (a) requires no payments of principal until the date which is 91 days after the scheduled
Maturity Date or (b) is incurred to finance an Acquisition and is intended to be replaced, and is
in fact replaced, by Indebtedness described in the preceding clause (a) within six months
after the incurrence thereof.



     “Permitted Stock Repurchases” means repurchases or redemptions by the Company of its
capital stock for fair and reasonable consideration not exceeding $75,000,000 in aggregate amount
during any fiscal year; provided that the Company may add up to $10,000,000 of the unused
portion of such limit for any fiscal year to the limit for the immediately succeeding fiscal year.



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



16









 





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



     “Platform” has the meaning set forth in Section 6.2.



     “Pro Rata Share” means, with respect to each Lender at any time, a fraction (expressed
as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of
the Commitment of such Lender at such time and the denominator of which is the amount of the
Aggregate Commitments at such time; provided that if the commitment of each Lender to make
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.2, then the Pro Rata Share of each Lender shall be determined based
on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect
to any subsequent assignments made pursuant to the terms hereof. The initial Pro Rata Share of
each Lender is set forth opposite the name of such Lender on Schedule 2.1 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.



     “Register” has the meaning set forth in Section 10.7(c).



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



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



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



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.2, Lenders holding in the aggregate more than 50% of the Total Outstandings (with
the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.



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



17









 





     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other equity interest of the
Company or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other equity interest or of
any option, warrant or other right to acquire any such capital stock or other equity interest.



     “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by
each of the Lenders pursuant to Section 2.1.



     “Revolving Loan” has the meaning specified in Section 2.1.



     “Revolving Loan Notice” means a notice of (a) a Revolving Borrowing, (b) a conversion
of Revolving Loans from one Type to the other or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.2(a), which, if in writing, shall be substantially in the form of
Exhibit A.



     “Rosenberg Family” means the lineal descendants of Morris Rosenberg, their respective
spouses, any trust for the benefit of the foregoing and any other Person more than 50% of the
equity of which is owned by any of the foregoing.



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



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



     “SPC” has the meaning specified in Section 10.7(h).



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



     “Surety Bond” means, with respect to any Person, a bid bond, performance bond, payment
bond, maintenance bond, license bond, permit bond or similar bond issued on behalf of such Person
by a bonding company or other surety.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor



18









 







transactions, collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with any related schedules, a
“Master Agreement”), including any such obligations or liabilities under any Master
Agreement.



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



     “Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.4.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.4.



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



     “Swing Line Loan” has the meaning specified in Section 2.4(a).



     “Swing Line Loan Notice” means a notice of (a) a Swing Line Borrowing, (b) a
conversion of Swing Line Loans from one Type to the other or (c) a continuation of Swing Line
Loans, pursuant to Section 2.4(b), which, if in writing, shall be substantially in the form
of Exhibit B.



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



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



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



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     “Type” means, (a) with respect to a Revolving Loan, its character as a Base Rate Loan
or a Eurodollar Rate Loan and (b) with respect to a Swing Line Loan, its character as a Base Rate
Loan or an IBOR Rate Loan.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



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



     “Unreimbursed Amount” has the meaning set forth in Section 2.3(c)(i).



     1.2  Other Interpretive Provisions.



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



     (a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.



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



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




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




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




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



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



     (e) Except to the extent otherwise specified, references herein to “fiscal quarter” and
“fiscal year” mean such fiscal periods of the Company.



     1.3 Accounting Terms.



20









 





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



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



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



     1.5 References to Agreements and Laws. Unless otherwise expressly provided herein,
(a) references to Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are not prohibited by any
Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.



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



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




21









 






ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




     2.1 Revolving Loans.



     Subject to the terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Revolving Loan”) to the Company from time to time on any Business
Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding
the amount of such Lender’s Commitment; provided that after giving effect to any Revolving
Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Pro
Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata
Share of the Outstanding Amount of all Swing Line Loans shall not exceed the amount of such
Lender’s Commitment. Within the limits of each Lender’s Commitment, and subject to the other terms
and conditions hereof, the Company may borrow under this Section 2.1, prepay under
Section 2.5, and reborrow under this Section 2.1. Revolving Loans may be Base Rate
Loans or Eurodollar Rate Loans, as further provided herein.



     2.2 Procedure for Borrowing, Conversion and Continuation of Revolving Loans.



     (a) Each Revolving Borrowing, each conversion of Revolving Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Company’s irrevocable notice
to the Administrative Agent, which may be given by telephone. Each such notice must be received by
the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any borrowing of, conversion of or to or continuation of Eurodollar Rate Loans and (ii) on
the requested date of any borrowing of Base Rate Loans. Each telephonic notice by the Company
pursuant to this Section 2.2(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Revolving Loan Notice, appropriately completed and signed by a
Responsible Officer of the Company. Each borrowing of, conversion to or continuation of Eurodollar
Rate Loans shall be in a principal amount of $2,000,000 or a higher integral multiple of
$1,000,000. Except as provided in Sections 2.3(c) and 2.4(c), each borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $500,000 or a higher integral
multiple of $100,000. Each Revolving Loan Notice (whether telephonic or written) shall specify (i)
whether the Company is requesting a Revolving Borrowing, a conversion of Revolving Loans from one
Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the
borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii)
the principal amount of Revolving Loans to be borrowed, converted or continued, (iv) the Type of
Revolving Loans to be borrowed or to which existing Revolving Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto. If the Company fails to
specify a Type of Revolving Loan in a Revolving Loan Notice or if the Company fails to give a
timely notice requesting a conversion or continuation, then the applicable Revolving Loans shall be
made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If the Company requests a borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Revolving Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one month.



     (b) Following receipt of a Revolving Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Pro Rata Share of the applicable Revolving



22









 







Loans, and if no timely notice of a continuation is provided by the Company, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to Base
Rate Loans described in the preceding subsection. In the case of a Revolving Borrowing, each
Lender shall make the amount of its Revolving Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the
Business Day specified in the applicable Revolving Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.2 (and, if such Borrowing is the initial
Credit Extension, Section 4.1), the Administrative Agent shall make all funds so received
available to the Company in like funds as received by the Administrative Agent by crediting the
account of the Company on the books of Bank of America with the amount of such funds in accordance
with instructions provided by the Company to (and reasonably acceptable to) the Administrative
Agent.



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



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



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



     2.3 Letters of Credit.



     (a) The Letter of Credit Commitment.



          (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the other Lenders set forth in this Section 2.3, (1) from
time to time on any Business Day during the Availability Period, to issue standby letters of credit
(together with the Existing Letters of Credit, each a “Letter of Credit”) for the account
of the Company, and to Modify Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit issued for the account of the Company;
provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with
respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of
Credit (or, if applicable, the relevant Modification thereof) if as of the date of such L/C Credit
Extension, (x) the Total Outstandings would exceed the Aggregate Commitments, (y) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share
of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all Swing Line Loans would exceed the amount of such Lender’s Commitment or
(z) the Outstanding Amount of all L/C Obligations would exceed $300,000,000. Within the foregoing
limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of



23









 







Credit shall be fully revolving and, accordingly, the Company may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been
drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after the Effective Time shall be subject to and governed by the
terms and conditions hereof. Without limiting the foregoing, the Company agrees that at the
Effective Time (and without any further action by any Person), all Existing Letters of Credit
issued under the OneSource Credit Agreement shall be deemed to have been issued jointly for the
account of the Company and the applicable Subsidiary as if the Company had signed the original
Letter of Credit Application for each such Letter of Credit.



          (ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:



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



               (B) subject to Section 2.3(b)(iii), the expiry date of such requested Letter of Credit
would occur more than twelve months after the date of issuance or last extension, unless the
Required Lenders have approved such expiry date;



               (C) the expiry date of such requested Letter of Credit would occur more than one year after
the scheduled Maturity Date, unless all Lenders have approved such expiry date;



               (D) the issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer;



               (E) such Letter of Credit is in an initial amount less than $250,000 or is to be denominated
in a currency other than Dollars; or



               (F) such Letter of Credit is not payable at sight.



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



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



24









 





          (i) Each Letter of Credit shall be issued or Modified, as the case may be, upon the request of
the Company delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the
Company. Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 12:00 noon at least two Business Days (or such later date and
time as the L/C Issuer may agree in a particular instance in its sole discretion) prior to the
proposed issuance date or date of Modification, as the case may be. In the case of a request for
the initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form
and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter
of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D)
the name and address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented
by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer
may require. In the case of a request for a Modification of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (1)
the Letter of Credit to be Modified; (2) the proposed date of Modification (which shall be a
Business Day); (3) the nature of the proposed Modification; and (4) such other matters as the L/C
Issuer may require. Additionally, the Company shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to such requested Letter of
Credit issuance or Modification as the L/C Issuer or the Administrative Agent may reasonably
require.



          (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the Administrative Agent has
received a copy of such Letter of Credit Application from the Company and, if not, the L/C Issuer
will provide the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of
confirmation from the Administrative Agent that the requested issuance or Modification is permitted
in accordance with the terms hereof, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the account of the Company or
enter into the applicable Modification, as the case may be, in each case in accordance with the L/C
Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to
the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit.



          (iii) If the Company so requests in any applicable Letter of Credit Application, the L/C
Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has
automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than
a day (the “Nonextension Notice Date”) in each such twelve-month period to be agreed upon
at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the
Company shall not be required to make a specific request to the L/C Issuer for any such extension.
Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at
any time to an expiry



25









 







date not later than one year following the Maturity Date; provided that the L/C Issuer
shall not permit any such extension if (A) the L/C Issuer has determined that it would have no
obligation at such time to issue such Letter of Credit in its extended form under the terms hereof
(by reason of the provisions of Section 2.3(a)(ii) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is five Business Days
before the Nonextension Notice Date (1) from the Administrative Agent that the Required Lenders
have elected not to permit such extension or (2) from the Administrative Agent, any Lender or the
Company that one or more of the applicable conditions specified in Section 4.2 is not then
satisfied.



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



     (c) Drawings and Reimbursements; Funding of Participations.



          (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under
such Letter of Credit, the L/C Issuer shall notify the Company and the Administrative Agent of its
receipt of such notice and the amount of the requested drawing. Not later than 11:00 a.m. on the
date of any notice by the L/C Issuer of a payment by the L/C Issuer under a Letter of Credit (each
such date, an “Honor Notice Date”), the Company shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If the Company fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender
of the Honor Notice Date, the amount of the unreimbursed drawing (the “Unreimbursed
Amount”), and the amount of such Lender’s Pro Rata Share thereof. In such event, the Company
shall be deemed to have requested a Revolving Borrowing of Base Rate Loans to be disbursed on the
Honor Notice Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.2 for the principal amount of Base Rate Loans, but subject
to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth
in Section 4.2 (other than the delivery of a Revolving Loan Notice). Any notice given by
the L/C Issuer or the Administrative Agent pursuant to this Section 2.3(c)(i) may be given
by telephone if immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of such notice.



          (ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any notice pursuant to
Section 2.3(c)(i) make funds available to the Administrative Agent for the account of the
L/C Issuer at the Administrative Agent’s Office in an amount equal to its Pro Rata Share of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section 2.3(c)(iii), each
Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Company
in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.



          (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Borrowing of Base Rate Loans because the conditions set forth in Section 4.2



26









 






cannot be satisfied or for any other reason, the Company shall be deemed to have incurred from
the L/C Issuer on the date of the applicable payment by the L/C Issuer an L/C Borrowing in the
amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at (x) prior to the Honor Notice
Date, the Base Rate, and (y) thereafter, the Default Rate. In such event, each Lender’s payment to
the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.3(c)(ii)
shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute
an L/C Advance from such Lender in satisfaction of its participation obligation under this
Section 2.3.



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



          (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.3(c),
shall be absolute and unconditional and shall not be affected by any circumstance, including (A)
any set-off, counterclaim, recoupment, defense or other right which such Lender may have against
the L/C Issuer, the Company or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided that each Lender’s obligation to make Revolving Loans
pursuant to this Section 2.3(c) is subject to the conditions set forth in Section
4.2 (other than delivery by the Company of a Revolving Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the Company to reimburse the L/C Issuer
for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.



          (vi) If any Lender fails to make available to the Administrative Agent for the account of the
L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.3(c) by the time specified in Section 2.3(c)(ii), the L/C Issuer
shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is required to the date
on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the
greater of (x) the Federal Funds Rate from time to time in effect and (y) a rate determined by the
L/C Issuer in accordance with banking industry rules on interbank compensation. A certificate of
the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations.



          (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has
received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with
Section 2.3(c), if the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from
the Company or otherwise, including proceeds of Cash Collateral applied



27









 







thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender
its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as
those received by the Administrative Agent.



          (ii) If any payment received by the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.3(c)(i) is required to be returned under any of the circumstances
described in Section 10.6 (including pursuant to any settlement entered into by the L/C
Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the
L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Rate from time to time in effect.



     (e) Role of L/C Issuer. Each Lender and the Company agree that, in paying any drawing
under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer, any Agent-Related
Person nor any of the respective correspondents, participants or assignees of the L/C Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken
or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Letter of
Credit or Letter of Credit Application. The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided that this assumption is not intended to, and shall not, preclude the Company’s
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement, whether before or after any drawing by such beneficiary or transferee.
None of the L/C Issuer, any Agent-Related Person, or any of the respective correspondents,
participants or assignees of the L/C Issuer, shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.3(e); provided
that anything in such clauses to the contrary notwithstanding, the Company may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to the Company, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Company
which the Company proves were caused by the L/C Issuer’s willful misconduct or gross negligence or
the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C
Issuer may accept documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary, and the L/C Issuer
shall not be responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective
for any reason.



     (f) Obligations Absolute. The obligation of the Company to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be



28









 







absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including the following:



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



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



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



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



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



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



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Maturity Date, any L/C Obligation for any
reason remains outstanding, the Company shall, in each case, immediately Cash Collateralize the
then Outstanding Amount of all L/C Obligations. Sections 2.5 and 8.2(c) set forth
certain additional requirements to deliver Cash Collateral hereunder. For purposes of this
Section 2.3, Section 2.5 and Section 8.2(c), “Cash Collateralize” means to
pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer
(which



29









 







documents are hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings. The Company hereby grants to the Administrative Agent, for the benefit of
the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.



     (h) Letter of Credit Fees. The Company shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share a letter of credit fee for each Letter
of Credit equal to the Applicable Rate times the daily maximum amount available to be drawn
under such Letter of Credit; provided that, upon the request of the Required Lenders while
any Event of Default exists, the rate per annum at which all Letter of Credit fees are calculated
shall be increased by 2%. Such letter of credit fees shall be computed on a quarterly basis in
arrears. Such letter of credit fees shall be due and payable (x) on the first Business Day of each
January, April, July and October, commencing January 2, 2008 (or, if later, on the first such date
to occur after the issuance of such Letter of Credit), (y) on the earlier of (i) the scheduled
Maturity Date and (ii) the date on which the Obligations are accelerated pursuant to Section
8.2, and (z) thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily maximum amount of each standby Letter of Credit shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that such Applicable Rate was
in effect.



     (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Company shall pay directly to the L/C Issuer for its own account such fronting fees with respect to
Letters of Credit as specified in a separate fee letter between the Company and the L/C Issuer. In
addition, the Company shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment, extension and other processing fees, and other standard costs
and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on demand and are nonrefundable.



     (j) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the L/C
Issuer and the Company when a Letter of Credit is issued (including any such agreement applicable
to an Existing Letter of Credit), (i) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce at the time of
issuance shall apply to each Existing Letter of Credit that is a commercial letter of credit and
(ii) the rules of the ISP shall apply to each other Letter of Credit.



     (k)  Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.



     2.4 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender may (in its sole and absolute discretion) make a portion of the credit otherwise
available to the Company under the Aggregate Commitments by making swing line loans (each such
loan, a “Swing Line Loan”) to the Company from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding the amount



30









 







of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Pro Rata Share of the Outstanding Amount of Revolving Loans and L/C
Obligations of the Lender acting as Swing Line Lender may exceed the amount of such Lender’s
Commitment; provided that after giving effect to any Swing Line Loan, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount
of the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender’s Commitment, and provided,
further, that the Company shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Company may, subject to the agreement of the Swing Line Lender, borrow under
this Section 2.4, prepay under Section 2.5, and reborrow under this Section
2.4. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata
Share times the amount of such Swing Line Loan.



     (b) Borrowing Procedures. Each Swing Line Loan, each conversion of a Swing Line Loan
from one Type to the other, and each continuation of a Swing Line Loan as an IBOR Rate Loan shall
be made upon the Company’s irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender
and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall
specify (i) the amount to be borrowed, converted or continued, which shall be an integral multiple
of $500,000, (ii) the Type of Swing Line Loan to be borrowed or which an existing Swing Line Loan
is to be converted or continued, (iii) the requested borrowing, continuation or conversion date,
which shall be a Business Day, and (iv) if applicable, the duration of the Interest Period with
respect thereto. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Company. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. If the Company fails to specify a Type of
Swing Line Loan in a Swing Line Loan Notice or if the Company fails to give a timely notice
requesting a conversion or continuation, then the applicable Swing Line Loan shall be made as, or
converted to, a Base Rate Loan. Any such automatic conversion to a Base Rate Loan shall be
effective as of the last day of the Interest Period then in effect with respect to the applicable
IBOR Rate Loan. If the Company requests a borrowing of, conversion to, or continuation of IBOR
Rate Loans in any such Swing Line Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period ending on the Business Day immediately following the
first day of such Interest Period. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any Lender) prior to
11:00 a.m. on the date of a proposed Swing Line Borrowing (A) directing the Swing Line Lender not
to make the requested Swing Line Loan as a result of the limitations set forth in the proviso to
the first sentence of Section 2.4(a), or (B) that one or more of the applicable conditions
specified in Article IV is not then satisfied, then, subject to the terms and conditions



31









 







hereof, the Swing Line Lender may (in its sole and absolute discretion), not later than 12:00
noon on the borrowing date specified in the applicable Swing Line Loan Notice, make the amount of
its Swing Line Loan available to the Company at its office by crediting the account of the Company
on the books of the Swing Line Lender in immediately available funds.



     (c) Refinancing of Swing Line Loans.



          (i) The Swing Line Lender at any time in its sole and absolute discretion may request, on
behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender to so request on
its behalf), that each Lender make a Base Rate Loan in an amount equal to such Lender’s Pro Rata
Share of the amount of Swing Line Loans then outstanding. Such request shall be made in writing
(which written request shall be deemed to be a Revolving Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.2, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans, but subject to the
unutilized portion of the Aggregate Commitments and the conditions set forth in Section
4.2. The Swing Line Lender shall furnish the Company with a copy of the applicable Revolving
Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall
make an amount equal to its Pro Rata Share of the amount specified in such Revolving Loan Notice
available to the Administrative Agent in immediately available funds for the account of the Swing
Line Lender at the Administrative Agent’s Office not later than 10:00 a.m. on the day specified in
such Revolving Loan Notice, whereupon, subject to Section 2.4(c)(ii), each Lender that so
makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the
Company in such amount. The Administrative Agent shall remit the funds so received to the Swing
Line Lender.



          (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Borrowing,
in accordance with Section 2.4(c)(i), the request for Base Rate Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that
each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s
payment to the Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.4(c)(i) shall be deemed payment in respect of such participation.



          (iii) If any Lender fails to make available to the Administrative Agent for the account of the
Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.4(c) by the time specified in Section 2.4(c)(i), the
Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the Swing Line Lender at a
rate per annum equal to the greater of (x) the Federal Funds Rate from time to time in effect and
(y) a rate determined by the Swing Line Lender in accordance with banking industry rules on
interbank compensation. A certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this clause (iii) shall
be conclusive absent manifest error.



          (iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.4(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any set-off,



32









 







counterclaim, recoupment, defense or other right which such Lender may have against the Swing
Line Lender, the Company or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided that each Lender’s obligation to make Revolving Loans
pursuant to this Section 2.4(c) is subject to the conditions set forth in Section
4.2. No such funding of risk participations shall relieve or otherwise impair the obligation
of the Company to repay Swing Line Loans, together with interest as provided herein.



     (d) Repayment of Participations.



          (i) At any time after any Lender has purchased and funded a risk participation in a Swing Line
Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Pro Rata Share of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time during which such
Lender’s risk participation was funded) in the same funds as those received by the Swing Line
Lender.



          (ii) If any payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan is required to be returned by the Swing Line Lender under any of the
circumstances described in Section 10.6 (including pursuant to any settlement entered into
by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Pro
Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of
such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds
Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender.



     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Company for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Loan or risk participation pursuant to this Section 2.4 to refinance
such Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share
shall be solely for the account of the Swing Line Lender.



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



     2.5 Prepayments.



     (a) The Company may, upon notice to the Administrative Agent, at any time or from time to time
voluntarily prepay Revolving Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Administrative Agent not later than 10:00 a.m. (A) one
Business Day prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal
amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment
of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment and the Type(s) of Revolving
Loans to be prepaid. The Administrative Agent will promptly



33









 







notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Pro
Rata Share of such prepayment. If such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to Section 3.4.
Each such prepayment shall be applied to the Revolving Loans of the Lenders in accordance with
their respective Pro Rata Shares.



     (b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 10:00 a.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the Company, the
Company shall make such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.



     (c) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then
in effect, the Company shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations
in an aggregate amount equal to such excess; provided that the Company shall not be
required to Cash Collateralize the L/C Obligations pursuant to this Section 2.5(c) unless
after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings
exceed the Aggregate Commitments then in effect.



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



     2.7 Repayment of Loans.



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



34









 





     (b) The Company shall repay each Swing Line Loan on the earlier of (i) one Business Day after
demand by the Swing Line Lender and (ii) the Maturity Date.



     2.8 Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan
shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate
per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate;
(ii) each Base Rate Loan (including each applicable Swing Line Loan) shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal
to the Base Rate plus the Applicable Rate and (iii) each IBOR Rate Loan shall bear interest
on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the IBOR Rate plus the Applicable Rate; provided that if the Swing Line
Lender is deemed to have requested that each Lender fund its risk participation in any Swing Line
Loan pursuant to Section 2.4(c)(ii), then commencing on the date of such deemed request,
such Swing Line Loan shall bear interest at the Base Rate plus the Applicable Rate.



     (b) If any amount payable by the Company under any Loan Document is not paid when due (without
regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws. Furthermore, upon
the request of the Required Lenders while any Event of Default exists, the Company shall pay
interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.



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



     2.9 Fees.



     In addition to certain fees described in subsections (h) and (i) of
Section 2.3:



     (a) Non-Use Fee. The Company shall pay to the Administrative Agent for the account of
each Lender in accordance with its Pro Rata Share, a non-use fee equal to the Applicable Rate
times the actual daily amount by which the Aggregate Commitments (as reduced in accordance
with Section 2.6 or increased in accordance with Section 2.14) exceed the sum of
(i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C Obligations.
The non-use fee shall accrue at all times during the Availability Period, including at any time
during which one or more of the conditions in Article IV is not met, and shall be due and payable
quarterly in arrears on the first Business Day of each January, April, July and October, commencing
on January 2, 2008, and on the Maturity Date. The non-use fee shall be calculated quarterly in
arrears, and (i) if there is any change in the Applicable Rate during any



35









 







quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in effect and (ii) if
there is an increase or a reduction in the Aggregate Commitments in accordance with Section
2.6, the actual daily amount shall be computed and multiplied by the Aggregate Commitments
separately for each period during such quarter that the Aggregate Commitments were available.



     (b) Other Fees. (i) The Company shall pay to the Arranger and the Administrative
Agent for their own respective accounts fees in the amounts and at the times specified in the Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.




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



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate
Loans when the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis
of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations
of fees and interest shall be made on the basis of a 360 day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on the basis of a 365
day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.12(a), bear interest for one day.



     2.11 Evidence of Debt.



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



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



36









 







by the Administrative Agent and the accounts and records of any Lender in respect of such
matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error.



     2.12 Payments Generally.



     (a) All payments to be made by the Company shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by the Company hereunder shall be made to the Administrative Agent, for the account of
the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 12:00 noon on the date specified herein.
The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to
such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 noon
shall be deemed received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue.



     (b) If any payment to be made by the Company shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.



     (c) Unless the Company or any Lender has notified the Administrative Agent prior to the date
any payment is required to be made by it to the Administrative Agent hereunder, that the Company or
such Lender, as the case may be, will not make such payment, the Administrative Agent may assume
that the Company or such Lender, as the case may be, has timely made such payment and may (but
shall not be so required to), in reliance thereon, make available a corresponding amount to the
Person entitled thereto. If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:



          (i) if the Company failed to make such payment, each Lender shall forthwith on demand repay to
the Administrative Agent the portion of such assumed payment that was made available to such Lender
in immediately available funds, together with interest thereon in respect of each day from the date
such amount was made available by the Administrative Agent to such Lender to the date such amount
is repaid to the Administrative Agent in immediately available funds, at the greater of (x) the
Federal Funds Rate from time to time in effect and (y) a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation; and



          (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to
the Administrative Agent the amount thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available by the Administrative Agent to
the Company to the date such amount is recovered by the Administrative Agent (the “Compensation
Period”) at a rate per annum equal to the greater of (x) the Federal Funds Rate from time to
time in effect and (y) a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender’s Revolving Loan included in the applicable
Borrowing. If such Lender does not



37









 







pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative
Agent may make a demand therefor upon the Company, and the Company shall pay such amount to the
Administrative Agent, together with interest thereon for the Compensation Period at a rate per
annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall
be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any
rights which the Administrative Agent or the Company may have against any Lender as a result of any
default by such Lender hereunder.



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



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



     (e) The obligations of the Lenders hereunder to make Revolving Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of
any Lender to make any Revolving Loan or to fund any such participation on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so make its Revolving
Loan or purchase its participation.



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



     2.13 Sharing of Payments. If, other than as expressly provided elsewhere herein, any
Lender shall obtain on account of the Revolving Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it, any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent
of such fact, and (b) purchase from the other Lenders such participations in the Revolving Loans
made by them and/or such subparticipations in the participations in L/C Obligations or Swing Line
Loans held by them, as the case may be, as shall be necessary to cause such purchasing Lender to
share the excess payment in respect of such Revolving Loans or such participations, as the case may
be, pro rata with each of them; provided that if all or any portion of such excess payment
is thereafter recovered from the purchasing Lender under any of the circumstances described in
Section 10.6 (including pursuant to any settlement entered into by the purchasing Lender in
its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay
to the purchasing Lender the purchase price paid therefor, together with an amount equal to such
paying Lender’s ratable share (according to the proportion of (i) the amount of such paying
Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered, without further interest thereon. The Company



38









 







agrees that any Lender so purchasing a participation from another Lender may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right of set-off, but
subject to Section 10.9) with respect to such participation as fully as if such Lender were
the direct creditor of the Company in the amount of such participation. The Administrative Agent
will keep records (which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the Lenders following any
such purchases or repayments. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were the original owner of
the Obligations purchased.



     2.14 Increase in Commitments.



     (a) The Company may, from time to time, by means of a letter delivered to the Administrative
Agent substantially in the form of Exhibit I, request that the Aggregate Commitments be
increased; provided that (i) any such increase in the Aggregate Commitments shall be in the
amount of $25,000,000 or a higher integral multiple of $5,000,000 and (ii) the aggregate amount of
all such increases shall not exceed $100,000,000.



     (b) Any increase in the Aggregate Commitments may be effected by (i) increasing the Commitment
of one or more Lenders that have agreed to such increase and/or (ii) subject to clause (c),
adding one or more commercial banks or other Persons as a party hereto (each an “Additional
Lender”) with a Commitment in an amount agreed to by any such Additional Lender.



     (c) Any increase in the Aggregate Commitments pursuant to this Section 2.14 shall be
effective three Business Days (or such other period agreed to by the Administrative Agent, the
Company and, as applicable, each Lender that has agreed to increase its Commitment and each
Additional Lender) after the later to occur of (i) the date on which the Company has delivered to
the Administrative Agent a certified copy of resolutions of its board of directors, in form and
substance reasonably acceptable to the Administrative Agent, authorizing such increase and (ii) the
Administrative Agent has received and accepted the applicable increase letter in the form of
Annex 1 to Exhibit I (in the case of an increase in the Commitment of an existing
Lender) or assumption letter in the form of Annex 2 to Exhibit I (in the case of
the addition of an Additional Lender).



     (d) No Additional Lender shall be added as a party hereto without the written consent of the
Administrative Agent, the L/C Issuer and the Swing Line Lender (which consents shall not be
unreasonably withheld or delayed), and no increase in the Aggregate Commitments may be effected
pursuant to clause (b) above if a Default exists.



     (e) The Administrative Agent shall promptly notify the Company and the Lenders of any increase
in the amount of the Aggregate Commitments pursuant to this Section 2.14 and of the
Commitment and Pro Rata Share of each Lender after giving effect thereto. The Company acknowledges
that, in order to maintain Revolving Loans in accordance with each Lender’s Pro Rata Share, a
reallocation of the Commitments as a result of a non-pro-rata increase in the



39









 







Aggregate Commitments may require prepayment or conversion of all or portions of certain
Revolving Loans on the date of such increase (and any such prepayment or conversion shall be
without premium or penalty but subject to the provisions of Section 3.4).



     (f) This Section shall supersede any provision in Section 10.1 to the contrary.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




     3.1 Taxes.



     (a) Any and all payments by the Company to or for the account of the Administrative Agent or
any Lender under any Loan Document shall be made free and clear of and without deduction for any
and all present or future taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with respect thereto, excluding, in
the case of the Administrative Agent and each Lender, taxes imposed on or measured by its overall
net income, and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which the Administrative Agent or such
Lender, as the case may be, is organized or maintains a lending office (all such non-excluded
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as “Taxes”). If the Company shall be required by
any Laws to deduct any Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section), each of the Administrative Agent and such Lender receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the Company shall make such
deductions, (iii) the Company shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable Laws, and (iv) within 30 days after the date of
such payment, the Company shall furnish to the Administrative Agent (which shall forward the same
to such Lender) the original or a certified copy of a receipt evidencing payment thereof.



     (b) In addition, the Company agrees to pay any and all present or future stamp, court or
documentary taxes and any other excise or property taxes or charges or similar levies which arise
from any payment made under any Loan Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as “Other Taxes”).



     (c) If the Company shall be required to deduct or pay any Taxes or Other Taxes from or in
respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, the
Company shall also pay to the Administrative Agent or to such Lender, as the case may be, at the
time interest is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all taxes, including
taxes imposed on or measured by net income) that the Administrative Agent or such Lender would have
received if such Taxes or Other Taxes had not been imposed.



40









 





     (d) The Company agrees to indemnify the Administrative Agent and each Lender for (i) the full
amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by the Administrative Agent and such
Lender, (ii) amounts payable under Section 3.1(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with respect thereto, in
each case whether or not such Taxes or Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. Payment under this subsection (d) shall be made
within 30 days after the date the Lender or the Administrative Agent makes a demand therefor.



     3.2 Illegality. If any Lender determines that any Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans or, in the case of the Swing Line
Lender, IBOR Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate
or, in the case of the Swing Line Lender, the IBOR Rate, then, on notice thereof by such Lender to
the Company through the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or IBOR Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans or
IBOR Rate Loans shall be suspended until such Lender notifies the Administrative Agent and the
Company that the circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, the Company shall, upon demand from such Lender (with a copy to the Administrative
Agent), convert all Eurodollar Rate Loans or IBOR Rate Loans, as applicable, of such Lender to Base
Rate Loans, either on the last day of the Interest Period therefor or on such earlier date as such
Lender may not lawfully continue to maintain such Eurodollar Rate Loans or IBOR Rate Loans, as
applicable. Upon any such conversion, the Company shall also pay accrued interest on the amount so
converted. Thereafter, for so long as such circumstances continue, all Loans which would otherwise
be made or maintained by such Lender as Eurodollar Rate Loans or IBOR Rate Loans, as applicable,
shall be Base Rate Loans. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.



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



     (a) If any Lender determines that as a result of the introduction of or any change in or in
the interpretation of any Law, or such Lender’s compliance therewith, there shall be any increase
in the cost to such Lender of agreeing to make or making, funding or maintaining Eurodollar Rate
Loans or IBOR Rate Loans or issuing or participating in Letters of Credit, or a reduction in the
amount received or receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this subsection (a) any such increased costs or such reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.1 shall govern), (ii)
changes in the basis of taxation of overall net income or overall gross income by the United States
or any foreign jurisdiction or any political subdivision of either thereof under the Laws of which
such Lender is organized or has its Lending Office, and (iii) reserve requirements contemplated by
Section 3.3(c)), then from time to time upon demand of such Lender (with a copy of such
demand to the Administrative Agent), the Company shall pay to such Lender such



41









 








additional amounts as will compensate such Lender for such increased cost or such reduction in
amount.



     (b) If any Lender determines that the introduction of, or any change in or in the
interpretation of, or compliance by such Lender (or its Lending Office) with any Law regarding
capital adequacy has the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking
into consideration such Lender’s or such corporation’s policies with respect to capital adequacy
and such Lender’s desired return on capital), then from time to time upon demand of such Lender
(with a copy of such demand to the Administrative Agent), the Company shall pay to such Lender such
additional amounts as will compensate such Lender for such reduction.



     (c) The Company shall pay to each Lender, as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or
deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid
principal amount of each Eurodollar Rate Loan and, in the case of the Swing Line Lender, each IBOR
Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as
determined by such Lender in good faith, which determination shall be conclusive), which shall be
due and payable on each date on which interest is payable on such Loan, provided the
Company shall have received at least 15 days’ prior notice (with a copy to the Administrative
Agent) of such additional interest from such Lender. If a Lender fails to give notice 15 days
prior to the relevant Interest Payment Date, such additional interest shall be due and payable 15
days from receipt of such notice.



     3.4 Funding Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time following



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



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



the Company shall promptly pay to such Lender an amount equal to the sum of (i) the amount, if any,
by which (x) the additional interest that would have accrued on the amount that is, or that fails
to be, continued, converted, paid, prepaid or borrowed at the Eurodollar Rate or IBOR Rate
(excluding the Applicable Rate for Eurodollar Rate Loans or IBOR Rate Loans, as the case may be) if
that amount had remained or been outstanding through the last day of the applicable Interest Period
exceeds (y) the interest that such Lender could recover by placing such amount on deposit in the
London interbank eurodollar market (in the case of Eurodollar Rate Loans) or the offshore Dollar
interbank market (in the case of IBOR Rate Loans) for a period beginning on the date of, or the
date notified by the Company for, prepayment, borrowing, continuation or conversion and ending on
the last day of the applicable Interest Period (or, if no deposit rate quotation is available for
such period, for the most comparable period for which a deposit rate



42









 







quotation may be obtained); plus (ii) any customary and reasonable administrative fees charged by
such Lender in connection with the foregoing



     3.5 Inability to Determine Rates. If the Required Lenders determine that for any
reason adequate and reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or that the Eurodollar
Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify the Company and each Lender. If the Swing Line Lender determines
that for any reason adequate and reasonable means do not exist for determining the IBOR Rate for
any requested Interest Period with respect to a proposed IBOR Rate Loan, or that the IBOR Rate for
any requested Interest Period with respect to a proposed IBOR Rate Loan does not adequately and
fairly reflect the cost to the Swing Line Lender of funding such Loan, the Administrative Agent
will promptly so notify the Company. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans or the Swing Line Lender to make or maintain IBOR Rate Loans, as the case may
be, shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders
or the Swing Line Lender, as applicable) revokes such notice. Upon receipt of such notice, the
Company may revoke any pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or IBOR Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Revolving Borrowing or a Swing Line Borrowing of Base Rate Loans in
the amount specified therein.



     3.6 Matters Applicable to all Requests for Compensation. A certificate of the
Administrative Agent or any Lender claiming compensation under this Article III and setting
forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the
absence of manifest error. In determining such amount, the Administrative Agent or such Lender may
use any reasonable averaging and attribution methods.



     3.7 Survival. All of the Company’s obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.1 Conditions of Initial Credit Extension. The obligation of each Lender to make its
initial Credit Extension hereunder is subject to satisfaction of the following conditions
precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the date on which the Effective Time
occurs (or, in the case of certificates of governmental officials, a recent date before the
Effective Time) and each in form and substance satisfactory to the Administrative Agent and its
legal counsel:



43









 





          (i) executed counterparts of this Agreement and the Guaranty sufficient in number for
distribution to the Administrative Agent, each Lender and the Company;



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



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



          (iv) such documents and certifications as the Administrative Agent may reasonably require to
evidence that each Loan Party is duly organized or formed, validly existing and in good standing in
the jurisdiction of its organization or formation;



          (v) opinions of (x) Orrick, Herrington & Sutcliffe LLP, counsel to the Loan Parties, and (y)
Linda S. Auwers, general counsel of the Loan Parties, substantially in the form of Exhibits
G and H, respectively;



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



          (vii) a certificate signed by a Responsible Officer of the Company certifying (A) that the
conditions specified in Sections 4.2(a) and (b) have been satisfied, (B) that there
has been no event or circumstance since the date of the Audited Financial Statements that has had
or could be reasonably expected to have, either individually or in the aggregate, a Material
Adverse Effect, (C) that the OneSource Acquisition has been, or concurrently with the making of the
initial Credit Extensions will be, consummated substantially in accordance with the OneSource
Merger Agreement and (D) a true, correct and complete copy of the OneSource Merger Agreement;



          (viii) a Compliance Certificate as of July 31, 2007 demonstrating pro forma compliance with
the financial covenants after giving effect to the OneSource Acquisition; and



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



     (b) Any fees required to be paid at or before the Effective Time shall have been paid.



     (c) Unless waived by the Administrative Agent, the Company shall have paid all Attorney Costs
of the Administrative Agent to the extent invoiced prior to the Effective Time, plus such
additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable
estimate of Attorney Costs incurred or to be incurred by it through the closing



44









 







proceedings (provided that such estimate shall not thereafter preclude a final settling of
accounts between the Company and the Administrative Agent).



     (d) All obligations of the Company under the Existing Credit Agreement shall have been, or
shall concurrently be, paid in full.



     (e) The Administrative Agent shall have received evidence that all obligations of OneSource
under the OneSource Credit Agreement have been, or concurrently with the making of the initial
Credit Extensions will be, paid in full and that all Liens securing the obligations of OneSource
and its Subsidiaries thereunder have been, or concurrently with the making of the initial Credit
Extensions will be, released.



     4.2 Conditions to all Credit Extensions.



     The obligation of each Lender to honor any Request for Credit Extension (other than (i) a
Revolving Loan Notice requesting only a conversion of Revolving Loans to the other Type or a
continuation of Eurodollar Rate Loans or (ii) a Swing Line Notice requesting only a conversion of
Swing Line Loans to the other Type or a continuation of Swing Line Loans) is subject to the
following conditions precedent:



     (a) The representations and warranties of the Company contained in Article V shall be
true and correct in all material respects on and as of the date of such Credit Extension, except to
the extent that such representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respects as of such earlier date.



     (b) No Default shall exist or would result from such proposed Credit Extension.



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



     Each Request for Credit Extension (other than (i) a Revolving Loan Notice requesting only a
conversion of Revolving Loans to the other Type or a continuation of Eurodollar Rate Loans or (ii)
a Swing Line Notice requesting only a conversion of Swing Line Loans to the other Type or a
continuation of Swing Line Loans) submitted by the Company shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.2(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.



ARTICLE V




REPRESENTATIONS AND WARRANTIES




     The Company represents and warrants to the Administrative Agent and the Lenders that:



     5.1 Existence, Qualification and Power; Compliance with Laws. Each Loan Party (a) is
duly organized, validly existing and in good standing under the Laws of the jurisdiction of its
organization, (b) has all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own its material assets and carry on its business



45









 







substantially as now conducted and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, (c) is duly qualified and is licensed and in good standing
under the Laws of each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in compliance with all
Laws; except in each case referred to in clause (b)(i), (c) or (d), to the
extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.



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



     5.3 Third Party Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Party of any Loan Document to which it is a party.



     5.4 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party
thereto. This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of each Loan Party that is a party thereto,
enforceable against such Loan Party in accordance with its terms, except as enforceability may be
limited by applicable Debtor Relief Laws and by general equitable principles regardless of whether
considered in a proceeding in equity or at law.



     5.5 Litigation. There is no action, suit, investigation or proceeding pending or, to
the best of the Company’s knowledge, threatened in any court or before any arbitrator or
governmental authority that: (a) relates to the legality, validity or enforceability of any
provision of any Loan Document or any of the transactions contemplated thereby (including the
OneSource Acquisition), the rights or remedies of the Administrative Agent or any Lender
thereunder, the legality or propriety of any action taken or proposed to be taken by the
Administrative Agent or any Lender in connection therewith, or the power or authority of any Loan
Party to perform its obligations thereunder, or (b) is reasonably likely to be adversely determined
and, if adversely determined, would reasonably be expected to have a material adverse effect on the
ability of any Loan Party to perform its obligations under or in connection with any Loan Document.



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



46









 





     5.7 ERISA Compliance.



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



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



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



     5.8 Ownership of Property; Liens. Each of the Company and each Subsidiary has good
record and marketable title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. The property of the Company and its Subsidiaries is subject to no Liens, other than Liens
permitted by Section 7.1.



     5.9 Taxes. The Company and its Subsidiaries have filed all Federal and other material
tax returns and reports required to be filed, and have paid all Federal and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or any Subsidiary
that would, if made, have a Material Adverse Effect.



     5.10 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements and, to the Company’s knowledge, the audited financial
statements of OneSource and its Subsidiaries for the fiscal year of such entities ended



47









 







March 31, 2007, (i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all
material respects the financial condition of the Company and its Subsidiaries, or OneSource and its
Subsidiaries, as applicable, as of the date thereof and their results of operations for the period
covered thereby in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material indebtedness and other
material liabilities, direct or contingent, of the Company and its Subsidiaries, or OneSource and
its Subsidiaries, as applicable, as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness, except as set forth in the Disclosure Certificate.



     (b) The unaudited consolidated financial statements of the Company and its Subsidiaries dated
July 31, 2007 and the related consolidated statements of income or operations, shareholders’ equity
and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein; (ii) fairly present in all material respects the financial condition of the Company and
its Subsidiaries as of the date thereof and their results of operations for the period covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes
and to normal year-end adjustments; and (iii) show all material indebtedness and other material
liabilities, direct or contingent, of the Company and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness, except as set forth in the
Disclosure Certificate.



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



     5.11 OneSource Acquisition.



          (i) The OneSource Acquisition has been (or will be) completed in accordance with the terms of
the OneSource Merger Agreement and in compliance with applicable law and regulatory approvals, and
all necessary governmental, regulatory, shareholder and other consents and approvals required for
the consummation of the OneSource Acquisition (excluding the consents and approvals listed in
Section 3.4 of the Target Disclosure Schedule (as defined in the OneSource Merger Agreement)) were
(or will be) duly obtained and in full force and effect at the time of the OneSource Acquisition.



          (ii) The consummation of the OneSource Acquisition did not (or will not) violate any statute
or regulation of the United States or any other applicable jurisdiction, or any order, judgment or
decree of any court or other governmental authority, or result in a breach of, or constitute a
default under, any material agreement or indenture, or any material order or decree, affecting the
Company or any Subsidiary (including any entity that becomes a Subsidiary as a result of the
OneSource Acquisition), except, solely in the case of OneSource and its Subsidiaries, for
violations, breaches and defaults that would not have a Target Material Adverse Effect (as defined
in the OneSource Merger Agreement).



48









 





          (iii) The representations and warranties of the Company, OCo Merger Sub LLC and, to the best
of the Company’s knowledge, OneSource in the OneSource Merger Agreement are true and correct in all
material respects on the date of this Agreement.



          (iv) There have been no amendments to or waivers under the OneSource Merger Agreement or to
the documents related thereto that could reasonably be expected to adversely affect the interests
of the Administrative Agent or any Lender in any material respect (other than amendments and
waivers approved by the Administrative Agent).



          (v) The aggregate consideration for the Acquisition (including assumed bank debt) did not (or
will not) exceed $400,000,000.



     5.12 Environmental Compliance. The Company monitors in the ordinary course of
business the effect of existing Environmental Laws and existing Environmental Claims on its
business, operations and properties, and as a result thereof the Company has reasonably concluded
that such Environmental Laws and Environmental Claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



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



     5.14 Subsidiaries.



     As of the Effective Time (after giving effect to the OneSource Acquisition), the Company has
no Subsidiaries other than those specifically disclosed in the Disclosure Certificate and has no
equity investments in any other Person other than those specifically disclosed in the Disclosure
Certificate.



     5.15 Margin Regulations; Investment Company Act.



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



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



     5.16 Full Disclosure. None of the representations or warranties made by the Company
or any Subsidiary in the Loan Documents as of the date such representations and warranties are made
or as of the date such representations and warranties are deemed made, and none of the statements
contained in any exhibit, written report, written statement or certificate furnished by or on
behalf of the Company or any Subsidiary in connection with the Loan Documents



49









 




(including the offering and disclosure materials delivered by or on behalf of the Company to
the Lenders prior to the Effective Time), contains any untrue statement of a material fact or omits
any material fact required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they are made, not misleading as of the time when made or
delivered (it being recognized by the Administrative Agent and the Lenders that all written
financial projections with respect to the Company and its Subsidiaries that have been or may
hereafter be delivered to the Administrative Agent and the Lenders have been or will be prepared in
good faith based upon assumptions believed by the Company to be reasonable as of the date of the
applicable projections).




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



     5.18 Intellectual Property; Licenses, Etc. The Company and its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the best knowledge of the Company, no
slogan or other advertising device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Company or any Subsidiary infringes upon any
rights held by any other Person. No claim or litigation regarding any of the foregoing is pending
or, to the best knowledge of the Company, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



ARTICLE VI




AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding and not Cash
Collateralized, the Company shall, and shall (except in the case of the covenants set forth in
Sections 6.1, 6.2, 6.3 and 6.11) cause each applicable Subsidiary
to:



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



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year, a
consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year,
and the related consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Required Lenders, which report and



50









 







opinion shall be prepared in accordance with generally accepted auditing standards and shall
not be subject to any “going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit and which report shall state that such financial statements
present fairly the financial position of the Company and its Subsidiaries as of the date and for
the period indicated in conformity with GAAP; and



     (b) as soon as available, but in any event within 60 days after the end of each of the first
three fiscal quarters of each fiscal year, a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the
portion of the fiscal year then ended, setting forth in each case in comparative form the figures
for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the
Company as fairly presenting the financial condition, results of operations, shareholders’ equity
and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only to normal
year-end adjustments and the absence of footnotes.



As to any information contained in materials furnished pursuant to Section 6.2(d), the
Company shall not be separately required to furnish such information under subsection (a)
or (b) above, but the foregoing shall not be in derogation of the obligation of the Company
to furnish the information and materials described in subsection (a) and (b) above
at the times specified therein.



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



     (a) concurrently with the delivery of the financial statements referred to in
Section 6.1(a), (i) a certificate of its independent certified public accountants
certifying such financial statements and (ii) an attestation report from its independent certified
public accountants pursuant to Section 404(b) of the Sarbanes-Oxley Act of 2002 with respect to any
report included in such financial statements on the Company’s internal control over financial
reporting pursuant to Rule 13a-15 of the Securities Exchange Act of 1934;



     (b) concurrently with the delivery of the financial statements referred to in
Sections 6.1(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Company;



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



     (d) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Company, and copies of
all annual, regular, periodic and special reports and registration statements which the Company may
file or be required to file with the SEC under Section 13 or 15(d) of the



51









 







Securities Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto; and



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



     Documents required to be delivered pursuant to Section 6.1(a) or (b),
6.2(a) or 6.2(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed
to have been delivered on the date (i) on which the Company posts such documents, or provides a
link thereto, on the Company’s website on the Internet at the website address listed on
Schedule 10.2; or (ii) on which such documents are posted on the Company’s behalf on an
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or a website sponsored by the Administrative Agent or
otherwise); provided that: (x) the Company shall deliver paper copies of such documents to
the Administrative Agent or any Lender that requests the Company to deliver such paper copies until
a written request to cease delivering paper copies is given by the Administrative Agent or such
Lender and (y) the Company shall notify (by facsimile or electronic mail) the Administrative Agent
and each Lender of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Company shall be required to provide paper copies
of the Compliance Certificates required by Section 6.2(b) to the Administrative Agent and
each of the Lenders. Except for such Compliance Certificates, the Administrative Agent shall have
no obligation to request the delivery or to maintain copies of the documents referred to above, and
in any event shall have no responsibility to monitor compliance by the Company with any such
request for delivery, and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.



     The Company acknowledges that (a) the Administrative Agent and/or the Arranger will make
available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf
of the Company hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b)
certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Company or its securities) (each a “Public
Lender”). The Company agrees that (w) all Borrower Materials that are to be made available to
Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean
that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower
Materials “PUBLIC,” the Company shall be deemed to have authorized the Administrative Agent, the
Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any
material non-public information with respect to the Company or its securities for purposes of
United States Federal and state securities laws (provided that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 10.8); (y)
all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor;” and (z) the Administrative Agent and the Arranger shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform not designated “Public Investor.” Notwithstanding



52









 







the foregoing, the Company shall be under no obligation to mark any Borrower Materials
“PUBLIC.”



     6.3 Notices.



     Promptly notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default;



     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Company or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Company or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or proceeding affecting
the Company or any Subsidiary, including pursuant to any applicable Environmental Laws;



     (c) of the occurrence of any ERISA Event; and



     (d) of any material change in accounting policies or financial reporting practices by the
Company or any Subsidiary.



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Company setting forth details of the occurrence referred to therein and stating what
action the Company has taken and proposes to take with respect thereto. Each notice pursuant to
Section 6.3(a) shall describe with particularity any and all provisions of this Agreement
and any other Loan Document that have been breached.



     6.4 Payment of Obligations. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary; and (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property.



     6.5 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force
and effect its and each Guarantor’s legal existence and good standing under the Laws of the
jurisdiction of its organization, except in a transaction permitted by Section 7.3 or
7.4; (b) take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of its business, except to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material Adverse Effect.



     6.6 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and



53









 







renewals and replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.



     6.7 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Company, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts (after giving effect to any self-insurance
compatible with the following standards) as are customarily carried under similar circumstances by
such other Persons (it being understood that with respect to public liability and property damage
coverage and workers’ compensation coverage, the Company’s self insurance plan as in effect on the
date of this Agreement shall be deemed sufficient compliance with this Section).



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



     6.9 Books and Records. Maintain proper books of record and account, in which full,
true and correct entries sufficient to prepare financial statements in conformity with GAAP
consistently applied shall be made of all financial transactions and matters involving the assets
and business of the Company or such Subsidiary, as the case may be.



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



     6.11 Use of Proceeds. Use the proceeds of the Loans to refinance indebtedness under
the Existing Credit Agreement and for Permitted Acquisitions, working capital, capital expenditures
and other general corporate purposes not in contravention of any Law or of any Loan Document.



     6.12 Further Assurances. Take such actions as are necessary, or as the Administrative
Agent (or the Required Lenders acting through the Administrative Agent) may reasonably request from
time to time, to ensure that the obligations of the Company hereunder and under the other Loan
Documents are guaranteed at all times by Subsidiaries that, together with the Company, collectively
(a) own assets which account for 90% or more of the consolidated assets of the Company and its
Subsidiaries and (b) generate revenues which account for 90% or more of the consolidated revenues
of the Company and its Subsidiaries during the




54











 







most recently ended period of 12 consecutive months; provided that during the first 30
days following the completion of the OneSource Acquisition, compliance with clauses (a) and
(b) above shall be calculated without including OneSource or any of its Subsidiaries (the
“OneSource Entities”) so long as the Company is using reasonably commercial efforts
to promptly cause sufficient OneSource Entities to execute and deliver the Guaranty so that, as
soon as practicable after the Effective Time, the Company will be in compliance with this
Section 6.12 without giving effect to this proviso.




ARTICLE VII




NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding and
not Cash Collateralized, the Company shall not, nor shall it permit any Subsidiary to, directly or
indirectly:



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



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing at the Effective Time and listed in the Disclosure Certificate and any
renewals or extensions thereof; provided that the property covered thereby is not increased
and any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.5(b);



     (c) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP; provided that no notice of lien has
been filed or recorded under the Code;



     (d) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other
like Liens arising in the ordinary course of business which are not overdue or which are being
contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person, which proceedings have
the effect of preventing the forfeiture or sale of the property subject thereto;



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



     (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations and other non-delinquent obligations of a like nature, in each
case incurred in the ordinary course of business; provided that all such Liens in the
aggregate would not (even if enforced) cause a Material Adverse Effect;



     (g) customary Liens securing Surety Bonds;



55









 





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



     (i) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.1(i) or securing appeal or other surety bonds related to such judgments;



     (j) Liens securing Indebtedness permitted under Section 7.5(e); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition;



     (k) Liens arising solely by virtue of any statutory or common law provision relating to
bankers’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; provided that (i) such deposit
account is not a dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by the FRB and (ii)
such deposit account is not intended by the Company or any Subsidiary to provide collateral to the
depository institution; and



     (l) other Liens securing obligations in an aggregate amount not exceeding at any time
outstanding a Material Financial Amount.



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



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



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



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



     (d) subject to Section 6.12, Dispositions of property by the Company to any
wholly-owned Subsidiary or by any Subsidiary to the Company or to a wholly-owned Subsidiary;



     (e) Dispositions permitted by Section 7.3; and



     (f) Dispositions not otherwise permitted hereunder which are made for fair market value;
provided that (i) at the time of any such Disposition, no Default shall exist or result
from such Disposition, (ii) at least 75% of the aggregate sales price from such Disposition shall
be paid in cash and (iii) the aggregate value of all assets so sold by the Company and its
Subsidiaries shall not exceed, in any fiscal year, 10% of Consolidated Net Worth as of the end of
the preceding fiscal year.



56









 





     7.3 Fundamental Changes. Except as otherwise permitted by Section 7.2, merge,
dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default
exists or would result therefrom:



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



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



     (c) to the extent not otherwise permitted by Section 7.2 or this Section 7.3,
any Subsidiary that is not a Guarantor may dissolve or liquidate; provided that the value
of assets of such Subsidiary that are transferred to an entity other than a Loan Party in
connection with such liquidation or dissolution shall be included for purposes of determining
compliance with Section 7.2(f)(iii).



     7.4 Investments. Make any Investments, except:



     (a) investments which, when made, constitute Permitted Investments;



     (b) advances to officers, directors and employees of the Company and Subsidiaries in an
aggregate amount not to exceed (i) $1,000,000 at any time outstanding, for travel, entertainment
and analogous ordinary business purposes and (ii) $10,000,000 at any time outstanding for
relocation purposes;



     (c) Investments by the Company in any Subsidiary or by any Subsidiary in the Company or
another Subsidiary;



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



     (e) Guarantees permitted by Section 7.5;



     (f) Investments made to consummate Permitted Acquisitions;



     (g) Investments listed in the Disclosure Certificate; and



     (h) other Investments not exceeding $15,000,000 in the aggregate at any time outstanding.



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



     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness outstanding at the Effective Time and listed in the Disclosure Certificate
and any refinancings, refundings, renewals or extensions thereof; provided that the amount
of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;



     (c) Guarantees of the Company or any Subsidiary in respect of Indebtedness otherwise permitted
hereunder of the Company or any wholly-owned Subsidiary;



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



     (e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in Section 7.1(j);
provided that the aggregate amount of all such Indebtedness at any one time outstanding
shall not exceed a Material Financial Amount; and



     (f) unsecured Indebtedness in an aggregate principal amount not to exceed at any time
outstanding 20% of Consolidated Net Worth as of the end of the preceding fiscal year;
provided that the aggregate amount of all such Indebtedness which is not Permitted
Long-Term Indebtedness shall not at any time exceed a Material Financial Amount.



     7.6 Use of Proceeds.



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



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



     (a) each Subsidiary may make Restricted Payments to the Company and to wholly-owned
Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Subsidiary, to the
Company and any Subsidiary and to each other owner of capital stock or other equity interests of
such Subsidiary on a pro rata basis based on their relative ownership interests;



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provided that no Restricted Payment shall be made by a non-wholly-owned Subsidiary
which is a Guarantor at any time a Default exists);



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



     (c) the Company and each Subsidiary may (i) make Permitted Stock Repurchases and (ii)
purchase, redeem or otherwise acquire shares of its common stock or other common equity interests
or warrants or options to acquire any such shares with the proceeds received from the substantially
concurrent issue of new shares of its common stock or other common equity interests; and



     (d) the Company may declare or pay ordinary cash dividends to its stockholders.



     7.8 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Company and its Subsidiaries
at the Effective Time (giving effect to the OneSource Acquisition) or any business substantially
related, complementary or incidental thereto.



     7.9 Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of the Company, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Company or such Subsidiary as would be
obtainable by the Company or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than an Affiliate.



     7.10 Subsidiary Dividends. Except for Contractual Obligations listed on Schedule
7.10, be a party to any Contractual Obligation (other than this Agreement or any other Loan
Document) that limits the ability of any Subsidiary to make Restricted Payments to the Company or
any Guarantor or to otherwise transfer property to the Company or any Guarantor.



     7.11 Financial Covenants.



     (a) Consolidated Net Worth. Permit Consolidated Net Worth at any time to be less than
the sum of (i) $475,000,000, (ii) an amount equal to 50% of the Consolidated Net Income earned in
each full fiscal quarter ending after the Effective Time (with no deduction for a net loss in any
such fiscal quarter) and (iii) an amount equal to 100% of the aggregate increases in Shareholders’
Equity of the Company and its Subsidiaries after the Effective Time by reason of the issuance and
sale of capital stock or other equity interests of the Company or any Subsidiary, including upon
any conversion of debt securities of the Company into such capital stock or other equity interests,
but excluding by reason of the issuance and sale of capital stock pursuant to the Company’s
employee stock purchase plans, employee stock option plans and similar programs.



     (b) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio to be less
than 1.50 to 1.0 at any time.



     (c) Leverage Ratio. Permit the Leverage Ratio as of the end of any fiscal quarter to
be greater than 3.25 to 1.0.



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     7.12 Amendments to OneSource Merger Agreement. Make or agree to, or permit any
Subsidiary to make or agree to, any amendment to or modification of, or the waiver of any of its
rights under, the OneSource Merger Agreement if such amendment, modification or waiver would
adversely affect the interests of the Administrative Agent or any Lender in any material respect.



ARTICLE VIII




EVENTS OF DEFAULT AND REMEDIES




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



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



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



     (c) Specific Covenants. The Company fails to perform or observe any term, covenant or
agreement contained in any of Section 6.3(a) or 6.10 or Article VII;
provided that, in the case of Section 7.9, such failure shall have continued for
five Business Days; or



     (d) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (c) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days after the
earlier of (i) the date on which a Responsible Officer knew or reasonably should have known of such
failure and (ii) the date on which written notice thereof is given by the Administrative Agent or
any Lender; or



     (e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) or Guarantee (other than any Surety Bond) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than a Material Financial Amount, or
(B) fails to observe or perform any other agreement or condition relating to any such Indebtedness
or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto,
or any other event occurs, the effect of which default or other event is to cause, or to permit the
holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to



60









 







be demanded or to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under
such Swap Contract as to which the Company or any Subsidiary is the Defaulting Party (as defined in
such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to
which the Company or any Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by the Company or such Subsidiary as a result thereof is greater than a
Material Financial Amount; or



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



     (g) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Company under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of a Material Financial Amount, (ii) a contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a Lien under section 302(f) of ERISA; or (iii) the Company
or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period,
any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under
a Multiemployer Plan in a Material Financial Amount.



     (h) Inability to Pay Debts; Attachment. (i) Any Loan Party becomes unable or admits
in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ
or warrant of attachment or execution or similar process is issued or levied against all or any
material part of the property of any such Person and is not released, vacated or fully bonded
within 60 days after its issue or levy; or



     (i) Judgments. There is entered against the Company or any Subsidiary (i) a final
judgment or order for the payment of money in an aggregate amount exceeding a Material Financial
Amount (to the extent not covered by independent third-party insurance as to which the insurer does
not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order,
or (B) there is a period of 10 consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or



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     (j) Change of Control. There occurs any Change of Control with respect to the
Company; or



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



     (l) Defaults with respect to Surety Bonds. (i) Any Person issuing Surety Bonds on
behalf of the Company or any Subsidiary ceases for any reason to so issue Surety Bonds, the Company
or the applicable Subsidiary fails to promptly procure another issuer for Surety Bonds and such
cessation and failure could reasonably be expected to have a Material Adverse Effect; or (ii) the
Company or any Subsidiary breaches or defaults on one or more contracts for which Surety Bonds have
been issued in an aggregate amount greater than or equal to a Material Financial Amount and the
Person or Persons which issued such Surety Bonds either (x) take possession of the work under such
bonded contracts and such taking of possession would reasonably be expected to have a Material
Adverse Effect or (y) file any Uniform Commercial Code financing statement or similar document to
perfect any Lien securing such bonded contracts, unless such filing is terminated within 10 days
after such filing is made.



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



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



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



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



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



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



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ARTICLE IX




ADMINISTRATIVE AGENT




     9.1 Appointment and Authorization of Administrative Agent.



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



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



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



     9.3 Exculpatory Provisions. No Agent-Related Person shall have any duty or obligation except
those expressly set forth herein and in the other Loan Documents. Without limiting the generality
of the foregoing, no Agent-Related Person:



     (a) shall be subject to any fiduciary or other implied duties, regardless of whether a Default
has occurred and is continuing;



     (b) shall have any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby or by the other



63









 







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



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



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.1 and 8.2) or (ii) in
the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Company, a Lender or the L/C Issuer.



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



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



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



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



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



     9.8 Successor Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Company. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in consultation with the Company,
to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate
of any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor



65









 







Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Company and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the retiring Administrative Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this Article and
Section 10.4 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.



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



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



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



66









 









Administrative Agent under Sections 2.3(i) and (j), 2.9 and
10.4) allowed in such judicial proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.9 and 10.4.



     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.



     9.10 Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent to
(and the Administrative Agent agrees that, so long as no Default exists or would result therefrom
it will upon the request of the Company), release any Guarantor from its obligations under the
Guaranty if (i) such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder or (ii) the Company delivers to the Administrative Agent a written request for the
release of a Subsidiary from its obligations under the Guaranty; provided that prior to any
such release the Administrative Agent shall have received a certificate from a Responsible Officer
certifying that (a) the Company will be in compliance with Section 6.12 after giving effect
to such release and (b) no Default exists or would result therefrom.



Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 9.10.



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



ARTICLE X




MISCELLANEOUS




     10.1 Amendments, Etc. No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by the Company or any other



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



     (a) waive any condition set forth in Section 4.1(a) without the written consent of
each Lender;



     (b) increase or extend the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.2) without the written consent of such Lender;



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



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.1)
any fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided that only the consent of the
Required Lenders shall be necessary to waive any obligation of the Company to pay interest at the
Default Rate;



     (e) change Section 2.13 or Section 8.3 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



     (f) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or



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



and, provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Letter of Credit Application relating to
any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Lender in addition to the Lenders required above,
affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to
the Lenders required above, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove
any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be
increased or extended without the consent of such Lender.



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     10.2 Notices and Other Communications; Facsimile Copies.



     (a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile transmission).
All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile
number or (subject to subsection (c) below) electronic mail address, and all notices and
other communications expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:



          (i) if to the Company, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to
the address, facsimile number, electronic mail address or telephone number specified for such
Person on Schedule 10.2 or to such other address, facsimile number, electronic mail address
or telephone number as shall be designated by such party in a notice to the other parties; and




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



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




     (b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to applicable Law, have the same force and effect as manually-signed originals and
shall be binding on all Loan Parties, the Administrative Agent and the Lenders. The Administrative
Agent may also require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided that the failure to request or deliver the same shall not limit
the effectiveness of any facsimile document or signature.



     (c) Limited Use of Electronic Mail. Electronic mail and Internet and intranet
websites may be used only to distribute routine communications, such as financial statements and
other information as provided in Section 6.2, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other purpose.



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     (d) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Revolving Loan
Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Company even if (i)
such notices were not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. The Company shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting
from reliance by any such Person on any notice given or purportedly given by or on behalf of the
Company, except, with respect to any written notice only, to the extent such losses result from the
gross negligence or willful misconduct of such Agent-Related Person or such Lender. All telephonic
notices to and other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such recording.



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



     10.3 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative
Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.



     10.4 USA Patriot Act Notice. Each Lender and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Company that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”), it is required to obtain, verify and record information that identifies the
Company, which information includes the name and address of the Company and other information that
will allow



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such Lender or the Administrative Agent, as applicable, to identify the Company in accordance
with the Act.



     10.5 Expenses; Indemnity; Damage Waiver.



          (i) Costs and Expenses. The Company shall pay (i) all reasonable and documented
out-of-pocket expenses (including Attorney Costs and consultants’ fees) incurred by the
Administrative Agent and its Affiliates in connection with the syndication of the credit facilities
provided for herein, the preparation, negotiation, execution, delivery and administration of this
Agreement and the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance or Modification of any Letter of Credit or any demand for
payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the L/C Issuer (including Attorney Costs), and shall pay all
fees and time charges for attorneys who may be employees of the Administrative Agent, any Lender or
the L/C Issuer, in connection with the enforcement or protection of its rights (A) hereunder and
the other Loan Documents, including its rights under this Section, or (B) in connection with the
Loans made or Letters of Credit issued hereunder during, in the case of both clause (A) 
and this clause (B), the existence of an Event of Default (including all such reasonable
and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit).




          (ii) Indemnification by the Company. The Company shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the reasonable and documented fees, charges and disbursements of any counsel
for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all reasonable and
documented fees and time charges and disbursements for attorneys who may be employees of any
Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by
the Company or any other Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or
Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the
L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Company or any of its Subsidiaries, or any Environmental Liability related
in any way to the Company or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the Company or any other
Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee,



71









 






be available to the extent that such losses, claims, damages, liabilities or related expenses
(x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a
claim brought by the Company or any other Loan Party against an Indemnitee for breach in bad faith
of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Company or such
Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined
by a court of competent jurisdiction.




          (iii) Reimbursement by Lenders. To the extent that the Company for any reason fails
to indefeasibly pay any amount required under subsection (a) or (b) of this Section
to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any
Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer
in its capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(c).




          (iv) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Company shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems in connection with
this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.




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




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




          10.6 Payments Set Aside. To the extent that any payment by or on behalf of the
Company is made to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such set-off or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent or such



72









 








Lender in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or such set-off had not
occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect.




     10.7 Successors and Assigns.



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



     (b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Commitment and
the Loans (including for purposes of this subsection (b), participations in L/C Obligations
and in Swing Line Loans) at the time owing to it); provided that (i) except in the case of
an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund (as defined in subsection (g) of this Section) with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder)
subject to each such assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Company otherwise consents (which consent of the Company shall not be unreasonably
withheld or delayed); (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that this clause (ii) shall not
apply to rights in respect of Swing Line Loans; (iii) any assignment of a Commitment must be
approved by the Administrative Agent, the L/C Issuer and the Swing Line Lender (which approvals
shall not be unreasonably withheld or delayed) unless the Person that is the proposed assignee is
itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee) or an Affiliate of the assigning



73









 







Lender; and (iv) 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. Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 3.1,
3.3, 3.4 and 10.5 with respect to facts and circumstances occurring prior
to the effective date of such assignment). Upon request, the Company (at its expense) shall
execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this subsection shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with subsection (d) of this Section.



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



     (d) Any Lender may at any time, without the consent of, or notice to, the Company or the
Administrative Agent, sell participations to any Person (other than a natural person or the Company
or any of the Company’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a
portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion
of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations
and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the Company, the
Administrative Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement
or instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to Section 10.1 that directly affects
such Participant. Subject to subsection (e) of this Section, the Company agrees that each
Participant shall be entitled to the benefits of Sections 3.1, 3.2 and 3.3
to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
subsection 



74









 






(b) of this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.9 as though it were a Lender; provided such
Participant agrees to be subject to Section 2.13 as though it were a Lender.



     (e) A Participant shall not be entitled to receive any greater payment under Section
3.1 or 3.3 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 Company’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.1
unless the Company is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Company, to comply with Section 10.13 as though it were a
Lender.



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



     (g) As used herein, the following terms have the following meanings:




     “Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) an Approved Fund; and (iv) any other Person (other than a natural person)
approved by (x) the Administrative Agent, the L/C Issuer and the Swing Line Lender,
and (y) unless an Event of Default has occurred and is continuing, the Company (each
such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the Company or
any of the Company’s Affiliates or Subsidiaries




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




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



     (h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle identified as such in writing from time
to time by the Granting Lender to the Administrative Agent and the Company (an “SPC”) the
option to provide all or any part of any Revolving Loan that such Granting Lender would otherwise
be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Revolving Loan, and (ii) if an SPC elects not to
exercise such option or otherwise fails to make all or any part of such Revolving Loan, the
Granting Lender shall be obligated to make such Revolving Loan pursuant to the terms hereof. Each
party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of
such option shall increase the costs or expenses or otherwise increase or change the



75









 







obligations of the Company under this Agreement (including its obligations under Section
3.2), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes,
including the approval of any amendment, waiver or other modification of any provision of any Loan
Document, remain the lender of record hereunder. The making of a Revolving Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such
Revolving Loan were made by such Granting Lender. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join any other Person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Company and the Administrative Agent and with the payment of a processing fee of
$3,500, assign all or any portion of its right to receive payment with respect to any Revolving
Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information
relating to its funding of Revolving Loans to any rating agency, commercial paper dealer or
provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.



     (i) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may
create a security interest in all or any portion of the Loans owing to it and the Note, if any,
held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as
security for such obligations or securities, provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this Section 10.7, (i)
no such pledge shall release the pledging Lender from any of its obligations under the Loan
Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender
under the Loan Documents even though such trustee may have acquired ownership rights with respect
to the pledged interest through foreclosure or otherwise.



     (j) Notwithstanding anything to the contrary contained herein, if at any time Bank of America
assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America
may, (i) upon 30 days’ notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) upon
30 days’ notice to the Company, resign as Swing Line Lender. In the event of any such resignation
as L/C Issuer or Swing Line Lender, the Company shall be entitled to appoint from among the Lenders
(subject to the consent by the applicable Lender to such appointment) a successor L/C Issuer or
Swing Line Lender hereunder; provided that no failure by the Company to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights and
obligations of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.3(c)). If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect
to Swing Line Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.4(c).



76









 






Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer
shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to Bank of America to effectively
assume the obligations of Bank of America with respect to such Letters of Credit.



     10.8 Confidentiality. Each of the Administrative Agent and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that Information may be
disclosed (a) to its Related Parties, 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 (including any self-regulatory authority, such
as the National Association of Insurance Commissioners), (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e)
in connection with the exercise of any remedy hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Company and its obligations, (g) with the consent of the Company or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a
source other than the Company. For purposes of this Section, “Information” means all information
received from any Loan Party relating to any Loan Party or any of their respective businesses,
other than any such information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party, provided that, in the case of
information received from a Loan Party after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



     10.9 Set-off. In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each Lender is authorized
at any time and from time to time, without prior notice to the Company or any other Loan Party, any
such notice being waived by the Company (on its own behalf and on behalf of each Loan Party) 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 by, and other indebtedness at any time owing
by, such Lender to or for the credit or the account of the respective Loan Parties against any and
all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not the Administrative Agent or such Lender shall have made
demand under this Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured or denominated in a currency different from that of the applicable deposit
or indebtedness. Each



77









 







Lender agrees promptly to notify the Company and the Administrative Agent after any such
set-off and application made by such Lender; provided that the failure to give such notice
shall not affect the validity of such set-off and application.



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



     10.11 Integration. This Agreement, together with the other Loan Documents, comprises
the complete and integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.



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



     10.13 Tax Forms. (a) (i) Each Lender that is not a “United States person” within the
meaning of Section 7701(a)(30) of the Code (a “Foreign Lender”) shall deliver to the
Administrative Agent, prior to receipt of any payment subject to withholding under the Code (or
upon accepting an assignment of an interest herein), two duly signed completed copies of either IRS
Form W-8BEN or any successor thereto (relating to such Foreign Lender and entitling it to an
exemption from, or reduction of, withholding tax on all payments to be made to such Foreign Lender
by the Company pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto (relating to
all payments to be made to such Foreign Lender by the Company pursuant to this Agreement) or such
other evidence satisfactory to the Company and the Administrative



78









 







Agent that such Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the Code. Thereafter and
from time to time, each such Foreign Lender shall (A) promptly submit to the Administrative Agent
such additional duly completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing authorities) as may then be
available under then current United States laws and regulations to avoid, or such evidence as is
satisfactory to the Company and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be made to such Foreign
Lender by the Company pursuant to this Agreement, (B) promptly notify the Administrative Agent of
any change in circumstances which would modify or render invalid any claimed exemption or
reduction, and (C) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws that the Company
make any deduction or withholding for taxes from amounts payable to such Foreign Lender.




     (ii) Each Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender under any of
the Loan Documents (for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent on the date when such Foreign Lender ceases to act
for its own account with respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of the Administrative Agent (in
the reasonable exercise of its discretion), (A) two duly signed completed copies of the
forms or statements required to be provided by such Lender as set forth above, to establish
the portion of any such sums paid or payable with respect to which such Lender acts for its
own account that is not subject to U.S. withholding tax, and (B) two duly signed completed
copies of IRS Form W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such Lender.




     (iii) The Company shall not be required to pay any additional amount to any Foreign
Lender under Section 3.1 (A) with respect to any Taxes required to be deducted or
withheld on the basis of the information, certificates or statements of exemption such
Lender transmits with an IRS Form W-8IMY pursuant to this Section 10.13(a) or (B) if
such Lender shall have failed to satisfy the foregoing provisions of this Section
10.13(a); provided that if such Lender shall have satisfied the requirement of
this Section 10.13(a) on the date such Lender became a Lender or ceased to act for
its own account with respect to any payment under any of the Loan Documents, nothing in this
Section 10.13(a) shall relieve the Company of its obligation to pay any amounts
pursuant to Section 3.1 in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date establishing
the fact that such Lender or other Person for the account of which such Lender receives any
sums payable under



79









 








any of the Loan Documents is not subject to withholding or is subject to withholding at
a reduced rate.




     (iv) The Administrative Agent may, without reduction, withhold any Taxes required to
be deducted and withheld from any payment under any of the Loan Documents with respect to
which the Company is not required to pay additional amounts under this Section
10.13(a).



     (b) Upon the request of the Administrative Agent, each Lender that is a “United States person”
within the meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative Agent two
duly signed completed copies of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an amount equivalent to
the applicable back-up withholding tax imposed by the Code, without reduction.



     (c) If any Governmental Authority asserts that the Administrative Agent did not properly
withhold or backup withhold, as the case may be, any tax or other amount from payments made to or
for the account of any Lender, such Lender shall indemnify the Administrative Agent therefor,
including all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable
to the Administrative Agent under this Section, and costs and expenses (including Attorney Costs)
of the Administrative Agent. The obligation of the Lenders under this Section shall survive the
termination of the Aggregate Commitments, repayment of all other Obligations hereunder and the
resignation of the Administrative Agent.



     10.14 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.



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



     10.16 Automatic Debits of Fees. With respect to any interest, non-use fee, letter of
credit fee or other fee due and payable to the Administrative Agent, the LC Issuer, the Swing Line
Lender, Bank of America or the Arranger under the Loan Documents, the Company hereby irrevocably
authorizes Bank of America to debit any deposit account of the Company with Bank of America in an
amount such that the aggregate amount debited from all such deposit accounts does not exceed such
fee or other cost or expense. If there are insufficient funds in such deposit accounts to cover
the amount of the interest or fees then due, such debits will be reversed (in whole or in part, in
Bank of America’s sole discretion) and such amount not debited shall be deemed to be unpaid. No
such debit under this Section shall be deemed a set-off.




80












 





     10.17 Governing Law.



     (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF CALIFORNIA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.



     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA SITTING IN SAN FRANCISCO OR OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE COMPANY, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE COMPANY, THE ADMINISTRATIVE AGENT
AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT
RELATED THERETO. THE COMPANY, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW
OF SUCH STATE.



     10.18 Waiver of Right to Trial by Jury; Judicial Reference. (a) SUBJECT TO CLAUSE (b)
BELOW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY(b) IF ANY ACTION OR PROCEEDING IS FILED IN A
COURT OF THE STATE OF CALIFORNIA BY OR AGAINST ANY PARTY HERETO IN CONNECTION WITH ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, (A) THE COURT SHALL, AND IS
HEREBY DIRECTED TO, MAKE A GENERAL REFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION
638 TO A REFEREE (WHO SHALL BE A SINGLE ACTIVE OR RETIRED JUDGE) TO HEAR AND DETERMINE ALL OF THE
ISSUES IN SUCH ACTION OR PROCEEDING (WHETHER OF FACT OR OF LAW) AND TO REPORT A STATEMENT OF



81









 







DECISION, PROVIDED THAT AT THE OPTION OF ANY PARTY TO SUCH PROCEEDING, ANY SUCH ISSUES
PERTAINING TO A “PROVISIONAL REMEDY” AS DEFINED IN CALIFORNIA CODE OF CIVIL PROCEDURE SECTION
1281.8 SHALL BE HEARD AND DETERMINED BY THE COURT, AND (B) WITHOUT LIMITING THE GENERALITY OF
SECTION 10.5 THE COMPANY SHALL BE SOLELY RESPONSIBLE TO PAY ALL FEES AND EXPENSES OF ANY
REFEREE APPOINTED IN SUCH ACTION OR PROCEEDING.



     10.19 Termination of Existing Credit Agreement. The Company and the Lenders that are
parties to the Existing Credit Agreement (which constitute “Required Lenders” under and as defined
in the Existing Credit Agreement) agree that, at the Effective Time, the Commitments under the
Existing Credit Agreement shall automatically terminate (without any further action and
notwithstanding any provision of the Existing Credit Agreement that requires notice of such
termination) and the Existing Credit Agreement shall be of no further force or effect (except for
any provision thereof that by its terms survives termination thereof).



82









 





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



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	ABM INDUSTRIES INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





					
	 	 	 	 	 
	 
	 	S-1
	 	ABM Industries, Inc.

Credit Agreement

Signature Page






 









 






	 	 	 	 	 	 	 
	 

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

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





					
	 	 	 	 	 
	 
	 	S-2
	 	ABM Industries, Inc.

Credit Agreement

Signature Page






 









 






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as a Lender, as L/C Issuer	 	 
	 	 	and as Swing Line Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





S-3




 









 





	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION,	 	 
	 	 	as Co-Syndication Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





S-4




 









 








	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,	 	 
	 	 	as Co-Syndication Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





S-5




 









 








	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,	 	 
	 	 	as Co-Documentation Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





S-6




 









 








	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	WACHOVIA BANK,	 	 
	 	 	NATIONAL ASSOCIATION,	 	 
	 	 	as Co-Documentation Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





S-7




 









 








	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	BANK OF THE WEST	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





S-8




 









 








	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	WELLS FARGO BANK NA	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





S-9




 









 








	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	UNION BANK OF CALIFORNIA	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





S-10




 









 








	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	HSBC BANK USA, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





S-11




 









 








	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	CITIBANK, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





S-12




 









 








	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	COMERICA BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





S-13




 









 








SCHEDULE 1




EXISTING LETTERS OF CREDIT




	 	 	 	 	 
	Letter of Credit Number	 	Amount Outstanding	 	Date of Expiration
	00000000226265
	 	$100,000.00
	 	12/01/07
	00000003007169
	 	$38,002,000.00
	 	10/31/08
	00000003015404
	 	$2,245,947.47
	 	03/31/08
	00000003050357
	 	$2,550,000.00
	 	06/01/08
	00000003056568
	 	$925,000.00
	 	05/31/08
	00000003060652
	 	$21,500,000.00
	 	12/24/07
	00000003061674
	 	$15,000.00
	 	03/01/08
	00000003072155
	 	$39,000,000.00
	 	12/15/07
	00000003078955
	 	$461,585.00
	 	12/07/07
	00000003079442
	 	$100,000.00
	 	01/04/08
	00000003079443
	 	$2,000,000.00
	 	01/04/08
	00000003085922
	 	$790,000.00
	 	12/14/07
	00000003088846
	 	$143,000.00
	 	04/24/07
	00000003090166
	 	$150,000.00
	 	08/31/08
	00000007420347
	 	$100,000.00
	 	01/11/09
	00000007420348
	 	$100,000.00
	 	01/11/09
	00000007420349
	 	$200,000.00
	 	01/11/08
	00000007420350
	 	$735,000.00
	 	01/11/08
	00000007420355
	 	$1,000,000.00
	 	01/11/08
	00000007420380
	 	$500,000.00
	 	01/25/08
	00000007420389
	 	$2,130,000.00
	 	02/02/08
	00000007420408
	 	$514,230.00
	 	02/10/08






1









 





SCHEDULE 2.1




COMMITMENTS

AND PRO RATA SHARES




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	Pro Rata Share
	 
	Bank of America, N.A.
	 	$	105,000,000.00	 	 	 	23.333333333	%
	JPMorgan Chase Bank, N.A.
	 	$	50,000,000.00	 	 	 	11.111111111	%
	KeyBank, National Association
	 	$	50,000,000.00	 	 	 	11.111111111	%
	U.S. National Bank, N.A.
	 	$	45,000,000.00	 	 	 	10.000000000	%
	Wachovia Bank, N.A.
	 	$	45,000,000.00	 	 	 	10.000000000	%
	Bank of the West
	 	$	40,000,000.00	 	 	 	8.888888889	%
	Wells Fargo Bank NA
	 	$	25,000,000.00	 	 	 	5.555555556	%
	Union Bank of California
	 	$	25,000,000.00	 	 	 	5.555555556	%
	HSBC Bank USA, National Association
	 	$	25,000,000.00	 	 	 	5.555555556	%
	Citibank, N.A.
	 	$	20,000,000.00	 	 	 	4.444444444	%
	Comerica Bank
	 	$	20,000,000.00	 	 	 	4.444444444	%
	Total
	 	$	450,000,000.00	 	 	 	100.000000000	%






 









 





SCHEDULE 7.10




RESTRICTIONS ON SUBSIDIARY DIVIDENDS




See Part 7.10 of the Disclosure Certificate





1









 









SCHEDULE 10.2




CERTAIN EURODOLLAR AND DOMESTIC LENDING OFFICES,

ADDRESSES FOR NOTICES




ABM INDUSTRIES INCORPORATED

551 Fifth Avenue, Suite 300

New York, NY 10176



Attn: Chief Financial Officer

Telephone: 212-297-0200

Facsimile: 212-297-0375




With a copy to:

ABM Industries Incorporated

551 Fifth Avenue, Suite 300

New York, NY 10176



Attn: General Counsel

Telephone: 212-297-0200

Facsimile: 212-297-0375




BANK OF AMERICA

Administrative Agent’s Office:




Bank of America, N.A.

Commercial Agency Management

800 Fifth Avenue, Floor 32

Mail Code: WA1-501-32-37

Seattle, WA 98104




			
	Attn:

	 	Ken Puro
	 

	 	Telephone: 415-343-0559 
	 

	 	Facsimile: 206-358-0971
	 

	 	Email: ken.puro@bankofamerica.com






Requests for Credit Extensions:




Bank of America, N.A.

Credit Services

2001 Clayton Rd.

Mail Code: CA4-706-05-09

Concord CA 94520-2405




			
	Attn:

	 	Remy David
	 

	 	Telephone: 925-675-8416
	 

	 	Facsimile: 888-217-4730
	 

	 	Email: remedios.a.david@bankofamerica.com






1









 




Bank of America, N.A. Dallas TX

ABA 026009593

Acct. Name: Corporate FTA

Acct #: 3750836479

Attn: Remy David

Ref: ABM Industries




L/C Issuer:



Bank of America, N.A.

Trade Operations-Los Angeles #22621

1000 W Temple St.

Mail Code: CA9-705-07-05

Los Angeles, CA 90012-1514




	 	 	 
	Attn:

	 	Sandra Leon
	 

	 	Telephone: 213-580-8369
	 

	 	Facsimile: 213-457-8841
	 

	 	Email: Sandra.Leon@bankofamerica.com






Other Notices as a Lender:




Bank of America, N.A.

315 Montgomery Street, 13th Floor

Mail Code: CA5-704-13-11

San Francisco, CA 94104-1898




	 	 	 
	Attn:

	 	Ron Drobny
	 

	 	Telephone: 415-953-9023
	 

	 	Facsimile: 415-622-1878
	 

	 	Email: Ronald.Drobny@bankofamerica.com







2









 








EXHIBIT A




FORM OF REVOLVING LOAN NOTICE




Date: ___________, _____




To: Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:




     Reference is made to the Credit Agreement dated as of November 14, 2007 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined) among ABM Industries Incorporated,
a Delaware corporation (the “Company”), the Lenders from time to time party thereto and
Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.



     The undersigned hereby requests (select one):



	 	 	 	 	 	 	 	 	 
	 

	 	o
	 	A Borrowing of Revolving Loans
	 	o
	 	A conversion or continuation of Loans







	1.	 	On                                                              (a Business Day).
	 
	2.	 	In the amount of $                                                            .
	 
	3.	 	Comprised of                                                             .





[Type of Revolving Loan requested]





	4.	 	For Eurodollar Rate Loans: with an Interest Period of weeks.





     [The Revolving Borrowing requested herein complies with the proviso to the first sentence of
Section 2.1 of the Agreement.]



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	ABM INDUSTRIES INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 






A-1











 





EXHIBIT B




FORM OF SWING LINE LOAN NOTICE




Date:                     , _____





			
	To:	 	Bank of America, N.A., as Swing Line Lender

Bank of America, N.A., as Administrative Agent





Ladies and Gentlemen:




     Reference is made to the Credit Agreement, dated as of November 14, 2007 amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among ABM Industries Incorporated,
a Delaware corporation (the “Company”), the Lenders from time to time party thereto and
Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.



     The undersigned hereby requests:



	 	 	 	 	 
	 

	 	o   A Swing Line Loan
	 	o    A conversion or continuation of a Swing Line Loan







	 	1.	 	On                                                            (a Business Day).
	 
	 	2.	 	In the amount of $___.1





     Such Swing Line Loan shall be [a Base Rate Loan][an IBOR Rate Loan with an Interest Period of
___days].



     The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.4(a) of the Agreement.



	 	 	 	 	 	 	 
	 	 	ABM INDUSTRIES INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 








 




			
	1	 	Swing line loans to be made in an aggregate amount not
exceeding $25 million and in integral multiples of $500,000.





B-1









 





EXHIBIT C




FORM OF NOTE




                    , ____




     FOR VALUE RECEIVED, the undersigned (the “Company”), hereby promises to pay to the
order of                                          (the “Lender”), on the Maturity Date (as
defined in the Credit Agreement referred to below) the principal amount of all Revolving Loans (as
defined in such Credit Agreement) made by the Lender to the Company under the Credit Agreement
dated as of November 14, 2007 (as amended, restated, extended, supplemented or otherwise modified
in writing from time to time, the “Agreement;” terms defined therein being used herein as
therein defined) among the Company, the Lenders from time to time party thereto and Bank of
America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.



     The Company promises to pay interest on the unpaid principal amount of each Revolving Loan
from the date of such Revolving Loan until such principal amount is paid in full, at such interest
rates and at such times as are specified in the Agreement. All payments of principal and interest
shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and is subject to prepayment in whole or in part as provided therein. This Note is also
entitled to the benefits of the Guaranty. Upon the occurrence of one or more of the Events of
Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or
may be declared to be, immediately due and payable, all as provided in the Agreement. Revolving
Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach schedules to this Note
and endorse thereon the date, amount and maturity of its Revolving Loans and payments with respect
thereto.



     The Company, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



C-1









 





     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.



	 	 	 	 	 	 	 
	 	 	ABM INDUSTRIES INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






C-2









 





REVOLVING LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Principal or	 	 	Outstanding	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	End of	 	 	Interest	 	 	Principal	 	 	 	 
	 	 	Type of	 	 	Amount of	 	 	Interest	 	 	Paid This	 	 	Balance	 	 	Notation	 
	Date	 	Loan Made	 	 	Loan Made	 	 	Period	 	 	Date	 	 	This Date	 	 	Made By	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






C-3









 








EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date: _,




To:      Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:




     Reference is made to the Credit Agreement, dated as of November 14, 2007 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among ABM
Industries Incorporated, a Delaware corporation (the “Company”), the Lenders from time to
time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                                        of the Company, and that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the behalf of the Company, and that:



     [Use following for fiscal year-end financial statements]



     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.1(a) of the Agreement for the fiscal year ended as of the above date,
together with the report and opinion of an independent certified public accountant required by such
section.



     [Use following for fiscal quarter-end financial statements]



     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.1(b) of the Agreement for the fiscal quarter ended as of the above date. Such
financial statements fairly present the financial condition, results of operations and cash flows
of the Company and its Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end adjustments and the absence of footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Company during the accounting period covered by the
attached financial statements.



     3. A review of the activities of the Company during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period the
Company performed and observed all its Obligations under the Loan Documents, and



D-1









 





[select one:]




     [to the best knowledge of the undersigned during such fiscal period, the Company performed and
observed each covenant and condition of the Loan Documents applicable to it.]



—or—





[the following covenants or conditions have not been performed or observed and the following
is a list of each such Default or Event of Default and its nature and status:]



     4. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of                     ,                     .



	 	 	 	 	 	 	 
	 	 	ABM INDUSTRIES INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Form of Assignment and Assumption




D-2









 





For the Quarter/Year ended                                         (“Statement Date”)




D-3









 







SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




Date:                                              

For the Fiscal Quarter / Year     

Ended:                                           




	 	 	 	 	 
	Section 7.11(a) Consolidated Net Worth
	 	 	 	 
	 
	 	 	 	 
	NET WORTH
	 	 	 	 
	Total Consolidated Assets:
	 	$	—	 
	 
	 	 	 
	Minus
	 	 	 	 
	Total Consolidated Liabilities:
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	Equals
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	MINIMUM REQUIRED
	 	 	 	 
	the sum of -
	 	 	 	 
	Base Amount:
	 	$	[•]	 
	 
	 	 	 
	Plus
	 	 	 	 
	0.50 times quarterly Net Income earned after
Effective Time (without deductions for losses)
	 	$	—	 
	 
	 	 	 
	Plus
	 	 	 	 
	Increases in Shareholders’ Equity after the Effective Time
resulting from the issuance and sale of capital stock or
other equity interests of the Company or any Subsidiary
(including upon any conversion of debt securities)
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	Equals
	 	$	—	 
	 
	 	 	 






	 	 	 	 	 
	Section 7.11(b) Fixed Charge Coverage Ratio
	 	 	 	 
	 
	 	 	 	 
	Adjusted Consolidated EBITDAR (rolling four quarter basis)
	 	 	 	 
	Net Income:
	 	$	—	 
	 
	 	 	 
	Plus
	 	 	 	 
	Extraordinary/non-cash/non-recurring loss:
	 	$	—	 
	 
	 	 	 
	Minus
	 	 	 	 
	Extraordinary/non-recurring gain or income (other than
non-recurring income arising from settlements of business
interruption insurance claims):
	 	$	—	 
	 
	 	 	 
	Plus
	 	 	 	 
	Consolidated Interest Charges:
	 	$	—	 
	 
	 	 	 
	Plus
	 	 	 	 
	Federal/state/local/foreign income taxes:
	 	$	—	 
	 
	 	 	 
	Plus
	 	 	 	 
	Depreciation & Amortization:
	 	$	—	 
	 
	 	 	 
	Plus
	 	 	 	 
	Stock Based Compensation Expense
	 	$	—	 
	 
	 	 	 
	Plus
	 	 	 	 
	Assumed Synergies Amount
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	Adjusted Consolidated EBITDA
	 	$	—	 
	 
	 	 	 





D-4









 








	 	 	 	 	 
	(pro forma for qualified Acquisitions/Dispositions)
	 	 	 	 
	Plus
	 	 	 	 
	Rent Expense:
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	Total:
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	divided by
	 	 	 	 
	Consolidated Interest Charges
	 	$	—	 
	 
	 	 	 
	Plus
	 	 	 	 
	Rent Expense
	 	$	—	 
	 
	 	 	 
	Plus
	 	 	 	 
	Scheduled principal payments of long-term Indebtedness
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	Total:
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	equals (expressed as a ratio)
	 	to 1.00	 
	 
	 	 	 
	 
	 	 	 	 
	MINIMUM REQUIRED:
	 	1.50 to 1.00	 






	 	 	 	 	 
	Section 7.11(c) Leverage Ratio
	 	 	 	 
	 
	 	 	 	 
	FUNDED INDEBTEDNESS
	 	 	 	 
	Indebtedness Outstanding:
	 	$	—	 
	 
	 	 	 
	Less
	 	 	 	 
	Contingent
obligations under commercial letters of credit and Guarantees
	 	$	—	 
	 
	 	 	 
	Less
	 	 	 	 
	Obligations under Swap Contracts
	 	$	—	 
	 
	 	 	 
	Less
	 	 	 	 
	Intercompany Indebtedness
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	Total:
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	Adjusted Consolidated EBITDA
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	equals (expressed as a ratio)
	 	to 1.00	 
	 
	 	 	 
	 
	 	 	 	 
	MAXIMUM ALLOWED:
	 	3.25 to 1.00	 






Form of Assignment and Assumption





D-5











 







EXHIBIT E




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to and incorporated herein by reference and made a part of this Assignment and Assumption as if set
forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below, the interest in and to
all of the Assignor’s rights and obligations under the Credit Agreement and any other documents or
instruments delivered pursuant thereto that represents the amount and percentage interest
identified below of all of the Assignor’s outstanding rights and obligations under the respective
facilities identified below (including, without limitation, Letters of Credit and Swing Line Loans
included in such facilities and, to the extent permitted to be assigned under applicable law, all
claims (including, without limitation, contract claims, tort claims, malpractice claims and all
other claims at law or in equity, including claims under any law governing the purchase and sale of
securities or governing indentures pursuant to which securities are issued), suits, causes of
action and any other right of the Assignor against any other Person) (the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or warranty by the
Assignor.



	 	 	 	 	 	 	 	 	 
	1.

	 	Assignor:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	2.

	 	Assignee:
	 	 	 	 	 	[and is an
	 	 	 	 	 	 	 
	 	 	 	 	Affiliate/Approved Fund of [identify Lender] 1]
	 
	 	 	 	 	 	 	 	 
	3.	 	Company:	 	ABM Industries Incorporated
	 
	 	 	 	 	 	 	 	 
	4.	 	Administrative Agent:	 	Bank of America, N.A., as the administrative agent under
the Credit Agreement
	 
	 	 	 	 	 	 	 	 
	5.	 	Credit Agreement:	 	The Credit Agreement dated as of November 14, 2007 among
ABM Industries Incorporated, the
Lenders parties thereto and
Bank of America, N.A., as Administrative Agent








 




			
	1	 	Select as applicable.




E-1









 











	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	 	 	 
	 	 	 	 	 	 	Amount of	 	Amount of	 	Percentage
	 	 	 	 	 	 	Commitment/Loans	 	Commitment/Loans	 	Assigned of
	Facility Assigned	 	 	 	for all Lenders*	 	Assigned*	 	Commitment/Loans2
	 	                    	3	 	 
	 	$	                    	 	 	$	                    	 	 	 	                       	%
	 	                    	 	 	 
	 	$	                    	 	 	$	                    	 	 	 	                       	%
	 	                    	 	 	 
	 	$	                    	 	 	$	                    	 	 	 	                       	%






[7. Trade Date:                     ]4



Effective Date:                     , 20___[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	*	 	Amount to be adjusted by the counterparties to take into account
any payments or prepayments made between the Trade Date and the Effective Date.
	 
	2	 	Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
	 
	3	 	Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g. “Revolving Credit Commitment”, “Term Loan Commitment”, etc.).
	 
	4	 	To be completed if the Assignor and the Assignee intend
that the minimum assignment amount is to be determined as of the Trade Date.





Form of Assignment and Assumption




E-2









 








Consented to and Accepted:




BANK OF AMERICA, N.A., as

Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Title:
	 	 






[Consented to:]6

ABM INDUSTRIES INCORPORATED




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Title:
	 	 








 




			
	6	 	To be added only if the consent of the Company and/or
other parties (e.g. Swing Line Lender, L/C Issuer) is required by the terms of
the Credit Agreement.




E-3









 








ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR
 

ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



     1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Company, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.1 thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (v) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.



     1.3 Assignee’s Address for Notices, etc. Attached hereto as Schedule 1 is all contact
information, address, account and other administrative information relating to the Assignee.



E-4









 





     2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned interest (including payments of principal, interest, fees and
other amounts) to the Assignee whether such amounts have accrued prior to or on or after the
Effective Date. The Assignor and the Assignee shall make all appropriate adjustments in payments by
the Administrative Agent for periods prior to the Effective Date or with respect to the making of
this assignment directly between themselves.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of California.



Form of Assignment and Assumption




E-5









 








SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION




ADMINISTRATIVE DETAILS




(Assignee to list names of credit contacts, addresses, phone and facsimile numbers, electronic

mail addresses and account and payment information)





E-6









 








EXHIBIT F




FORM OF GUARANTY




GUARANTY




     THIS GUARANTY dated as of November 14, 2007 is executed in favor of BANK OF AMERICA, N.A.
(“Bank of America”), as Administrative Agent (as defined below), and the Lenders (as
defined below).



W I T N E S S E T H:




     WHEREAS, ABM Industries Incorporated (the “Company”), various financial institutions
(together with their respective successors and assigns, the “Lenders”) and Bank of America,
as administrative agent (in such capacity, the “Administrative Agent”), have entered into a
Credit Agreement dated as of November 14, 2007 (as amended, restated or otherwise modified from
time to time, the “Credit Agreement”; capitalized terms used but not defined herein have
the respective meanings ascribed thereto in the Credit Agreement); and



     WHEREAS, each of the undersigned will benefit from the making of loans and the issuance of
letters of credit pursuant to the Credit Agreement and is willing to guarantee the Liabilities (as
defined below) as hereinafter set forth;



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each of the undersigned hereto agrees as follows:



     Each of the undersigned hereby jointly and severally, unconditionally and irrevocably, as
primary obligor and not merely as surety, guarantees the full and prompt payment when due, whether
by acceleration or otherwise, and at all times thereafter, of (a) all obligations of the Company,
howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, which arise out of or in connection with the Credit
Agreement or any other Loan Document, as the same may be amended, modified, extended or renewed
from time to time, and (b) all reasonable costs and expenses paid or incurred by the Administrative
Agent or any Lender in enforcing this Guaranty or any other applicable Loan Document against such
undersigned (all such obligations being herein collectively called the “Liabilities”);
provided that the liability of each of the undersigned hereunder shall be limited to the
maximum amount of the Liabilities which such undersigned may guaranty without rendering the
obligations of such undersigned hereunder void or voidable under any fraudulent conveyance or
fraudulent transfer law.



     Each of the undersigned agrees that, in the event of the occurrence of any Event of Default
under Section 8.1(f) of the Credit Agreement with respect to the Company, and if such event shall
occur at a time when any of the Liabilities may not then be due and payable, such undersigned will
pay to the Administrative Agent for the account of the Lenders forthwith the



F-1









 







full amount which would be payable hereunder by such undersigned if all Liabilities were then
due and payable.



     This Guaranty shall in all respects be a continuing, irrevocable, absolute and unconditional
guaranty of payment and performance and not only collectibility, and shall remain in full force and
effect (notwithstanding, without limitation, the dissolution of any of the undersigned, that at any
time or from time to time no Liabilities are outstanding or any other circumstance) until all
Commitments have terminated and all Liabilities have been paid in full.



     The undersigned further agree that if at any time all or any part of any payment theretofore
applied by the Administrative Agent or any Lender to any of the Liabilities is or must be rescinded
or returned by the Administrative Agent or such Lender for any reason whatsoever (including,
without limitation, the insolvency, bankruptcy or reorganization of the Company or any of the
undersigned), such Liabilities shall, for the purposes of this Guaranty, to the extent that such
payment is or must be rescinded or returned, be deemed to have continued in existence,
notwithstanding such application by the Administrative Agent or such Lender, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as
though such application by the Administrative Agent or such Lender had not been made.



     The Administrative Agent or any Lender may, from time to time, at its sole discretion and
without notice to the undersigned (or any of them), take any or all of the following actions
without affecting the liability of the undersigned hereunder: (a) retain or obtain a security
interest in any property to secure any of the Liabilities or any obligation hereunder, (b) retain
or obtain the primary or secondary obligation of any obligor or obligors, in addition to the
undersigned, with respect to any of the Liabilities, (c) extend or renew any of the Liabilities for
one or more periods (whether or not longer than the original period), alter or exchange any of the
Liabilities, or release or compromise any obligation of any of the undersigned hereunder or any
obligation of any nature of any other obligor with respect to any of the Liabilities, (d) release
its security interest in, or surrender, release or permit any substitution or exchange for, all or
any part of any property securing any of the Liabilities or any obligation hereunder, or extend or
renew for one or more periods (whether or not longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of any obligor with respect to any such
property, and (e) resort to the undersigned (or any of them) for payment of any of the Liabilities
when due, whether or not the Administrative Agent or such Lender shall have resorted to any
property securing any of the Liabilities or any obligation hereunder or shall have proceeded
against any other of the undersigned or any other obligor primarily or secondarily obligated with
respect to any of the Liabilities.



     Any amounts received by the Administrative Agent or any Lender from whatever source on account
of the Liabilities may be applied by it toward the payment of the Liabilities in accordance with
the Credit Agreement; and, notwithstanding any payments made by or for the account of any of the
undersigned pursuant to this Guaranty, the undersigned shall not be subrogated to any rights of the
Administrative Agent or any Lender until such time as this Guaranty shall have been discontinued as
to all of the undersigned and the Administrative Agent and the Lenders shall have received payment
of the full amount of all Liabilities.



F-2









 





     The undersigned hereby expressly waive: (a) notice of the acceptance by the Administrative
Agent or any Lender of this Guaranty, (b) notice of the existence or creation or non-payment of all
or any of the Liabilities, (c) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, and (d) all diligence in collection or protection of or realization upon any
Liabilities or any security for or guaranty of any Liabilities.



     The creation or existence from time to time of additional Liabilities to the Administrative
Agent or any Lender or any of them is hereby authorized, without notice to the undersigned (or any
of them), and shall in no way affect or impair the rights of the Administrative Agent or any Lender
or the obligations of the undersigned under this Guaranty.



     The Administrative Agent and any Lender may from time to time, without notice to the
undersigned (or any of them), assign or transfer any or all of the Liabilities or any interest
therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or
transfer thereof, such Liabilities shall be and remain Liabilities for the purposes of this
Guaranty, and each and every immediate and successive assignee or transferee of any of the
Liabilities or of any interest therein shall, to the extent of the interest of such assignee or
transferee in the Liabilities, be entitled to the benefits of this Guaranty to the same extent as
if such assignee or transferee were a Lender.



     No delay on the part of the Administrative Agent or any Lender in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by the Administrative
Agent or any Lender of any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy; nor shall any modification or waiver of any provision of
this Guaranty be binding upon the Administrative Agent or any Lender except as expressly set forth
in a writing duly signed and delivered on behalf of the Administrative Agent (or, if at any time
there is no Administrative Agent, the Required Lenders or, if required pursuant to Section 10.1 of
the Credit Agreement, all Lenders). No action of the Administrative Agent or any Lender permitted
hereunder shall in any way affect or impair the rights of the Administrative Agent or any Lender or
the obligations of the undersigned under this Guaranty. For purposes of this Guaranty, Liabilities
shall include all obligations of the Company to the Administrative Agent or any Lender arising
under or in connection with any Loan Document, notwithstanding any right or power of the Company or
anyone else to assert any claim or defense as to the invalidity or unenforceability of any
obligation, and no such claim or defense shall affect or impair the obligations of the undersigned
hereunder.



     Pursuant to the Credit Agreement, (a) this Guaranty has been delivered to the Administrative
Agent and (b) the Administrative Agent has been authorized to enforce this Guaranty on behalf of
itself and each of the Lenders. All payments by the undersigned pursuant to this Guaranty shall be
made to the Administrative Agent for application as set forth in the Credit Agreement or, if there
is no Administrative Agent, to the Lenders for their ratable benefit.



     This Guaranty shall be binding upon the undersigned and the successors and assigns of the
undersigned; and to the extent that the Company or any of the undersigned is either a partnership,
corporation, limited liability company or other entity, all references herein to the Company and to
the undersigned, respectively, shall be deemed to include any successor or successors, whether
immediate or remote, to such entity. The term “undersigned” as used herein



F-3









 







shall mean all parties executing this Guaranty and each of them, and all such parties shall be
jointly and severally obligated hereunder.



     This Guaranty shall be construed in accordance with and governed by the internal laws of the
State of California. Wherever possible each provision of this Guaranty shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Guaranty.



     This Guaranty may be executed in any number of counterparts and by the different parties
hereto on separate counterparts, and each such counterpart shall be deemed to be an original but
all such counterparts shall together constitute one and the same Guaranty. At any time after the
date of this Guaranty, one or more additional persons or entities may become parties hereto by
executing and delivering to the Administrative Agent a counterpart of this Guaranty. Immediately
upon such execution and delivery (and without any further action), each such additional person or
entity will become a party to, and will be bound by all of the terms of, this Guaranty.



     Notwithstanding any other provision of this Guaranty, any of the undersigned may be released
from its obligations hereunder by the Administrative Agent in accordance with Section 9.10 of the
Credit Agreement. No such release shall affect the obligations of any of the other undersigned, or
impair the rights or remedies of the Administrative Agent or any Lender, hereunder.



     Each of the undersigned waives: (i) any defense to the recovery by the Lenders against such
undersigned of any deficiency or otherwise to the enforcement of this Guaranty or any security for
this Guaranty based upon the election of any remedy by the Administrative Agent against any of the
undersigned or the Company, including the defense to enforcement of this Guaranty (the so-called
“Gradsky” defense) which, absent this waiver, such undersigned would have by virtue of an election
by the Administrative Agent to conduct a non-judicial foreclosure sale (also known as a “trustee’s
sale”) of any real property security for the Liabilities, it being understood by such undersigned
that any such non-judicial foreclosure sale will destroy, by operation of California Code of Civil
Procedure Section 580d, all rights of any party to a deficiency judgment against the Company and,
as a consequence, will destroy all rights which such undersigned would otherwise have (including
the right of subrogation, the right of reimbursement, and the right of contribution) to proceed
against the Company; (ii) any defense or benefits that may be derived from California Code of Civil
Procedure Sections 580a, 580d or 726, or comparable provisions of the laws of any other
jurisdiction and all other anti-deficiency and one form of action defenses under the laws of
California and any other jurisdiction; (iii) any right to a fair value hearing under California
Code of Civil Procedure Section 580a, or any other similar law, to determine the size of any
deficiency owing (for which such undersigned would be liable hereunder) following a non-judicial
foreclosure sale; (iv) any defense or benefits that may be derived from California Civil Code
Sections 2808, 2809, 2810, 2819, 2845, 2849 or 2850 or comparable provisions of the laws of any
other jurisdiction, and all other suretyship defenses such undersigned would otherwise have under
the laws of California or any other jurisdiction.



F-4









 





     Without limiting the foregoing, or anything else contained in this Guaranty, each of the
undersigned waives all rights and defenses that such undersigned may have because any of the
Liabilities are at any time secured by real property. This means, among other things:



     (a) that the Lenders may collect from any of the undersigned without first foreclosing on any
real or personal property collateral pledged by the Company; and



     (b) if the Administrative Agent forecloses on any real property collateral pledged by the
Company: (i) the amount of the Liabilities may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale
price; and (ii) the Administrative Agent may collect from any of the undersigned even if the
Administrative Agent, by foreclosing on the real property collateral, has destroyed any right such
undersigned may have to collect from the Company.



     The foregoing is an unconditional and irrevocable waiver of any rights and defenses that any
of the undersigned may have because the Liabilities are secured by real property. These rights and
defenses include, but are not limited to, any rights or defenses based upon Sections 580a, 580b,
580d, or 726 of the California Code of Civil Procedure or comparable provisions of the laws of any
other jurisdiction.



     Each of the undersigned waives its rights of subrogation and reimbursement and any other
rights and defenses available to it by reason of Sections 2787 and 2855, inclusive, of the
California Civil Code, or comparable provisions of the laws of any other jurisdiction, including
(i) any defenses it may have by reason of an election of remedies by the Administrative Agent and
(ii) any rights or defenses it may have by reason of protection afforded to the Company with
respect to the Liabilities pursuant to the anti-deficiency or other laws of California limiting or
discharging the obligations of the Company, including Sections 580a, 580b, 580d or 726 of the
California Code of Civil Procedure or comparable provisions of the laws of any other jurisdiction.



     ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF
CALIFORNIA OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA;
PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA AND OF THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE. EACH OF THE UNDERSIGNED FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH UNDER ITS NAME ON THE
RELEVANT SIGNATURE PAGE HEREOF (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE



F-5









 







ADMINISTRATIVE AGENT AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF CALIFORNIA. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.



     SUBJECT TO THE FOLLOWING PARAGRAPH, EACH OF THE UNDERSIGNED, AND (BY ACCEPTING THE BENEFITS
HEREOF) EACH OF THE ADMINISTRATIVE AGENT AND EACH LENDER, HEREBY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY, OR ANY OTHER
LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP
EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.



     IF ANY ACTION OR PROCEEDING IS FILED IN A COURT OF THE STATE OF CALIFORNIA BY OR AGAINST ANY
PARTY HERETO IN CONNECTION WITH ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, (A) THE COURT SHALL, AND IS HEREBY DIRECTED TO, MAKE A GENERAL REFERENCE PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638 TO A REFEREE (WHO SHALL BE A SINGLE ACTIVE OR
RETIRED JUDGE) TO HEAR AND DETERMINE ALL OF THE ISSUES IN SUCH ACTION OR PROCEEDING (WHETHER OF
FACT OR OF LAW) AND TO REPORT A STATEMENT OF DECISION, PROVIDED THAT AT THE OPTION OF ANY
PARTY TO SUCH PROCEEDING, ANY SUCH ISSUES PERTAINING TO A “PROVISIONAL REMEDY” AS DEFINED IN
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281.8 SHALL BE HEARD AND DETERMINED BY THE COURT, AND
(B) THE UNDERSIGNED SHALL BE SOLELY RESPONSIBLE TO PAY ALL FEES AND EXPENSES OF ANY REFEREE
APPOINTED IN SUCH ACTION OR PROCEEDING.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




F-6









 





     IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered as of the day and year
first above written.



ABM CO. OF BOSTON

ABM ENGINEERING SERVICES COMPANY

ABM FACILITY SERVICES COMPANY

ABM GLOBAL FACILITY SERVICES

ABM JANITORIAL MIDWEST, INC.

ABM JANITORIAL SERVICES — NORTH CENTRAL, INC.

ABM JANITORIAL SERVICES — NORTHERN CALIFORNIA

ABM JANITORIAL NORTHEAST, INC.

ABM JANITORIAL SERVICES, INC.

ABM JANITORIAL SERVICES — SOUTH CENTRAL, INC.

ABM MID-ATLANTIC, INC.

ABM SECURITY SERVICES, INC.

AMERICAN BUILDING MAINTENANCE CO.

AMERICAN BUILDING MAINTENANCE CO. — WEST

AMERICAN BUILDING MAINTENANCE CO. OF GEORGIA

AMERICAN BUILDING MAINTENANCE CO. OF HAWAII

AMERICAN BUILDING MAINTENANCE CO. OF NEW YORK

AMERICAN BUILDING MAINTENANCE CO. OF NEW YORK — MANHATTAN

AMERICAN PUBLIC SERVICES

AMPCO SYSTEM PARKING

AMTECH LIGHTING & ELECTRICAL SERVICES

AMTECH LIGHTING SERVICES

AMTECH LIGHTING SERVICES OF THE MIDWEST

BRADFORD BUILDING SERVICES, INC.

ELITE SECURITY, INC.

OCO MERGER SUB LLC

SERVALL SERVICES, INC.

SSA SECURITY, INC.

SYSTEM PARKING, INC.




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 






551 Fifth Avenue, Suite 300

New York, NY 10176

Attention: Chief Financial Officer

Facsimile: (212) 297-0375




F-7









 





	 	 	 	 	 	 	 
	 	 	Signature page for the Guaranty dated as of November
14, 2007 issued by various subsidiaries of ABM
Industries Incorporated (the “Company”) in favor of
Bank of America, N.A., as Administrative Agent, under
the Credit Agreement dated as of November 14, 2007
with the Company and various other parties, and the
Lenders referred to in such Guaranty.	 	 
	 
	 	 	 	 	 	 
	 	 	The undersigned is executing a counterpart hereof for
purposes of becoming a party hereto:	 	 
	 
	 	 	 	 	 	 
	 	 	[SUBSIDIARY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name Printed:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	 	 	 







F-8









 








EXHIBIT I

FORM OF

INCREASE REQUEST

_________________________, 20___




Bank of America, N.A., as Administrative Agent

under the Credit Agreement referred to below




Ladies/Gentlemen:




     Please refer to the Credit Agreement dated as of November 14, 2007 among ABM Industries
Incorporated (the “Company”), various financial institutions and Bank of America, N.A., as
Administrative Agent (as amended, modified, extended or restated from time to time, the “Credit
Agreement”). Capitalized terms used but not defined herein have the respective meanings set forth
in the Credit Agreement.



     In accordance with Section 2.14 of the Credit Agreement, the Company hereby requests an
increase in the Aggregate Commitments from $                     to $                    .7 Such increase
shall be made by [increasing the Commitment of                      from $                     to $                    ] [adding
                     as a Lender under the Credit Agreement with a Commitment of $                    ] as set
forth in the letter attached hereto. Such increase shall be effective three Business Days after
the date that the Administrative Agent accepts the letter attached hereto or such other date as is
agreed among the Company, the Administrative Agent and the [increasing] [new] Lender.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	ABM INDUSTRIES INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 








 




			
	7	 	The Aggregate Commitment may be increased by up to $100
million if such commitments are available, subject to the absence of any
default or event of default.




I-1









 










ANNEX 1 TO EXHIBIT I




[Date]




Bank of America, N.A., as Administrative Agent

under the Credit Agreement referred to below




Ladies/Gentlemen:




     Please refer to the letter dated                     , 20___from ABM Industries Incorporated (the
“Company”) requesting an increase in the Aggregate Commitments from $                     to $                    
pursuant to Section 2.14 of the Credit Agreement dated as of November 14, 2007 among the Company,
various financial institutions and Bank of America, N.A., as Administrative Agent (as amended,
modified, extended or restated from time to time, the “Credit Agreement”). Capitalized terms used
but not defined herein have the respective meanings set forth in the Credit Agreement.



     The undersigned hereby confirms that it has agreed to increase its Commitment under the Credit
Agreement from $                     to $                     effective on the date which is three Business Days after
the acceptance hereof by the Administrative Agent or on such other date as may be agreed among the
Company, the Administrative Agent and the undersigned.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF INCREASING LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






Accepted as of

                    , ___




BANK OF AMERICA, N.A., as

Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 







I-2









 








ANNEX 2 TO EXHIBIT I




[Date]




Bank of America, N.A., as Administrative Agent

under the Credit Agreement referred to below




Ladies/Gentlemen:




     Please refer to the letter dated                     , 20___from ABM Industries Incorporated (the
“Company”) requesting an increase in the Aggregate Commitments from $                     to $                    
pursuant to Section 2.14 of the Credit Agreement dated as of November 14, 2007 among the Company,
various financial institutions and Bank of America, N.A., as Administrative Agent (as amended,
modified, extended or restated from time to time, the “Credit Agreement”). Capitalized terms used
but not defined herein have the respective meanings set forth in the Credit Agreement.



     The undersigned hereby confirms that it has agreed to become a Lender under the Credit
Agreement with a Commitment of $                     effective on the date which is three Business Days after
the acceptance hereof, and consent hereto, by the Administrative Agent or on such other date as may
be agreed among the Company, the Administrative Agent and the undersigned.



     The undersigned (a) acknowledges that it has received a copy of the Credit Agreement and the
Schedules and Exhibits thereto, together with copies of the most recent financial statements
delivered by the Company pursuant to the Credit Agreement, and such other documents and information
as it has deemed appropriate to make its own credit and legal analysis and decision to become a
Lender under the Credit Agreement; and (b) agrees 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 deem appropriate at the time, continue to make its own credit and legal decisions in taking
or not taking action under the Credit Agreement.



     The undersigned represents and warrants that (i) it is duly organized and existing and it has
full power and authority to take, and has taken, all action necessary to execute and deliver this
letter and to become a Lender under the Credit Agreement; and (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already given or obtained)
for its due execution and delivery of this letter and the performance of its obligations as a
Lender under the Credit Agreement.



     The undersigned agrees to execute and deliver such other instruments, and take such other
actions, as the Administrative Agent may reasonably request in connection with the transactions
contemplated by this letter.



I-3









 





     The following administrative details apply to the undersigned:



	 	 	 	 	 	 	 
	(A)	 	Notice Address:	 	 
	 

	 	Legal name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Attention:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Telephone: (___)	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Facsimile: (___)	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(B)	 	Payment Instructions:	 	 
	 

	 	Account No.:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	At:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Reference:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Attention:	 	 	 	 
	 

	 	 	 	 

	 	 






     The undersigned acknowledges and agrees that, on the date on which the undersigned becomes a
Lender under the Credit Agreement as set forth in the second paragraph hereof, the undersigned will
be bound by the terms of the Credit Agreement as fully and to the same extent as if the undersigned
were an original Lender under the Credit Agreement.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ADDITIONAL LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






Accepted and consented to as of

                    , 20___




BANK OF AMERICA, N.A.,

as Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 







I-4