EX-10.1






	 
	Exhibit 10.1

AMENDED AND RESTATED CREDIT AGREEMENT

	Dated November 6, 2015

among

NUTRISYSTEM, INC.,

and

CERTAIN SUBSIDIARIES

as Borrowers,

MANUFACTURERS AND TRADERS TRUST COMPANY,

as Administrative Agent, a Lender, the Swing Line Lender

and

L/C Issuer,

and

The Other Lenders from Time to Time Party Hereto







AMENDED AND RESTATED CREDIT AGREEMENT




This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”), is entered into on November
6, 2015, among NUTRISYSTEM, INC., a Delaware corporation (the “Company”), certain
Subsidiaries of the Company party hereto pursuant to Section 2.14 (each a “Designated
Borrower” and, together with the Company, the “Borrowers” and, each a
“Borrower”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), MANUFACTURERS AND TRADERS TRUST COMPANY,
as the Administrative Agent, Swing Line Lender and L/C Issuer (acting in its capacity as the
Administrative Agent, the “Administrative Agent”).



Each Borrower has requested that Lenders provide a senior secured credit facility in an
aggregate amount equal to $50,000,000, consisting of a revolving credit facility with a letter of
credit subfacility and a swing line subfacility.



NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties agree:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




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



“Adjusted LIBOR” means the rate per annum (rounded upwards if necessary to the nearest
one-hundredth of one percent) determined by the Administrative Agent to be equal to the quotient of
(a) LIBOR, divided by (b) a number equal to 1.00 minus the Reserve Percentage.



“Administrative Agent” means M&T in its capacity as the 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 10.02, 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 substantially
the form of Exhibit I or any other form approved by the Administrative Agent.



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



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



“Agreement” means this Amended and Restated Credit Agreement, dated as of the date
hereof, among Borrowers, Agent, and Lenders, as the same may be amended, modified, restated and/or
supplemented from time to time.



“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977
and all other laws, rules and regulations of any jurisdiction applicable to the Borrowers and their
respective Subsidiaries concerning or relating to bribery or corruption.



“Anti-Money Laundering Laws” means all applicable laws, rules and regulations relating
to terrorist financing or money laundering, including the U.S. Money Laundering Control Act of 1986
(18 U.S.C. 1956-67) and the U.S. Bank Secrecy Act, as amended by the USA PATRIOT Act.



“Applicable Percentage” means, with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to the adjustment as provided in Section 2.17. 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 8.02, or if the Aggregate Commitments
have expired, then the Applicable Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.



“Applicable Rate” means the following percentages per annum, based upon the
Consolidated Fixed Charge Coverage Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	Pricing

Level
	 	Consolidated Fixed Charge

Coverage Ratio

	 	Unused Fee
	 	Adjusted LIBOR +

and

Letters of

Credit
	 	



Base

Rate +

	 	 	 	 	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	1	 	 	>1.35:1

	 	 	0.25	%	 	 	1.25	%	 	 	0.00	%
	 	2	 	 	=1.35:1 but >1.15:1

	 	 	0.25	%	 	 	1.50	%	 	 	0.25	%
	 	3	 	 	=1.15:1

	 	 	0.25	%	 	 	1.75	%	 	 	0.50	%






Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Fixed Charge Coverage Ratio shall become effective as of the fifth Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section 6.02(b);
provided, however, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then Pricing Level 3 shall apply as of the fifth Business Day after
the date on which such Compliance Certificate was required to have been delivered. The Applicable
Rate in effect from the Closing Date through receipt of the first quarterly Compliance Certificate
shall be determined based upon Pricing Level 1.



Notwithstanding anything to the contrary contained in this definition, the determination of
the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).



“Applicant Borrower” has the meaning specified in Section 2.14.



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



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



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



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



“Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended December 31, 2011, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Company and its Subsidiaries, including the notes thereto.



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



“Bankruptcy Code” means Title 11 of the United States Code, as in effect from time to
time, and the rules promulgated thereunder.



“Banking Services” means each and any of the following bank services provided to any
Loan Party or its Affiliates or Subsidiaries by the Administrative Agent, the L/C Issuer, any
Lender or an Affiliate or Subsidiary of any of the foregoing: (a) commercial credit cards, (b)
merchant services products, (c) stored value cards and (d) treasury and/or cash management services
(including controlled disbursement, automated clearinghouse transactions, return items, overdrafts
and interstate depository network services).



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



“Base Rate” means the highest of (a) the variable per annum rate of interest so
designated from time to time by the Administrative Agent as its prime rate (which rate is a
reference rate and does not necessarily represent the lowest or best rate being charged to any
customer, (b) the Federal Funds Rate plus one-half of one percent (0.50%) and (c) the One-Month
Adjusted LIBOR plus one and one half percent (1.50%).



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



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



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



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



“Borrowing” means a Committed 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, the
Commonwealth of Pennsylvania and, if such day relates to any LIBOR Loan, means any such day that is
also a Eurodollar Business Day.



“Cash Collateral” has the meaning specified in the definition of “Cash
Collateralize”.



“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable)
and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or
obligations of Lenders to fund participations in respect of either thereof (as the context may
require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefiting
from such collateral shall agree in its sole discretion, other credit support, in each case
pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and
(b) the L/C Issuer or the Swing Line Lender (as applicable), and in an amount of not less than 103%
of the Obligations being collateralized. “Cash Collateral” shall have a meaning
correlative to the foregoing and shall include the proceeds of such cash collateral and other
credit support.



“Cash Equivalents” means, as at any date of determination, (i) marketable securities
(a) issued or directly and unconditionally guaranteed as to interest and principal by the United
States Government or (b) issued by any agency of the United States the obligations of which are
backed by the full faith and credit of the United States, in each case maturing within 397 days
after the date of acquisition of such securities; (ii) marketable direct obligations issued by any
state of the United States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within 397 days after the date of acquisition of
such obligations and having, at the time of the acquisition thereof, the highest rating obtainable
from either Standard & Poor’s (“S&P”) or Moody’s Investors Service, Inc.
(“Moody’s”); (iii) commercial paper or finance company paper issued by any Person
incorporated under the laws of the United States or any state thereof, maturing no more than 397
days from the date of creation thereof and having, at the time of the acquisition thereof, a rating
of at least A-1, or its equivalent, from S&P or at least P-1, or its equivalent, from Moody’s; and
(iv) certificates of deposit or bankers’ acceptances maturing within 397 days after the respective
date of their acquisition and issued or accepted by any Lender or by any commercial bank organized
under the laws of the United States of America or any state thereof or the District of Columbia
that (a) is at least “adequately capitalized” (as defined in the regulations of its primary Federal
banking regulator) and (b) has Tier 1 capital (as defined in such regulations) and surplus of not
less than $1,000,000,000; (v) shares of any money market mutual fund registered under the
Investment Company Act of 1940, as amended, that (a) has at least 95% of its assets invested
continuously in the types of investments referred to in clauses (i) and (ii) above, (b) has net
assets of not less than $1,000,000,000, and (c) has the highest rating obtainable from either S&P
or Moody’s; (vi) shares of any money market mutual fund registered under the Investment Company Act
of 1940, as amended, that (a) has at least 95% of its assets invested continuously in the types of
investments referred to in clause (i) above, and (b) has net assets of not less than
$1,000,000,000.



“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or
directives promulgated by the Bank for International settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States regulatory authorities, in
each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless
of the date enacted, adopted or issued.



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



(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to
have “beneficial ownership” of all securities that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time (such right, an
“option right”)), directly or indirectly, of 20% or more of the equity securities of the Company
entitled to vote for members of the board of directors or equivalent governing body of the Company
on a fully-diluted basis (and taking into account all such securities that such person or group has
the right to acquire pursuant to any option right); or



(b) any Person or two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof,
will result in its or their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Company, or control over the equity
securities of the Company entitled to vote for members of the board of directors or equivalent
governing body of the Company on a fully-diluted basis (and taking into account all such securities
that such Person or group has the right to acquire pursuant to any option right) representing 20%
or more of the combined voting power of such securities.



“Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



“Code” means the Internal Revenue Code of 1986.



“Commitment” means, as to each Lender, its obligation to: (a) make Committed Loans to
the Borrowers pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.



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



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



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



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



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



“Consolidated Debt Service” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of (a) regularly scheduled principal payments on
Indebtedness, plus (b) Consolidated Interest Charges, in each case for such period.



“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus
(without duplication) (a) the following to the extent deducted in calculating such Consolidated Net
Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state,
local and foreign income taxes payable by the Company and its Subsidiaries for such period, (iii)
depreciation and amortization expense, (iv) costs and expenses incurred in connection with
acquisitions of the equity interests in, or assets of, third parties, (v) costs and expenses
incurred in connection with severance, not to exceed $1,000,000 in the aggregate in any fiscal
year, and (vi) other non-recurring expenses of the Company and its Subsidiaries reducing such
Consolidated Net Income which do not represent a cash item in such period or any future period, and
minus (b) the following to the extent included in calculating such Consolidated Net Income:
(i) Federal, state, local and foreign income tax credits of the Company and its Subsidiaries for
such period and (ii) all non-cash items increasing Consolidated Net Income for such period.



“Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA as of such date to (b) the sum of Consolidated Debt Service,
Restricted Payments (other than Restricted Payments in the form of Equity Interests) and Taxes paid
in cash, in each case, for the period of the four fiscal quarters most recently ended.



“Consolidated Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum 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 in connection with 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 capital leases that
is treated as interest in accordance with GAAP.



“Consolidated Net Income” means, for any period, for the Company and its Subsidiaries
on a consolidated basis, the net income of the Company and its Subsidiaries (excluding
extraordinary gains and extraordinary losses) for that period.



“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” 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.



“Covenant Testing Period” means any period during which the Total Outstandings exceed
zero dollars ($0.00).



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



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



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



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



“Defaulting Lender” means, subject to Section 2.17(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within one (1) Business Day of the date required to be funded by it hereunder,
unless such obligation is the subject of a good faith dispute, (b) has notified any Borrower, or
the Administrative Agent or any Lender that it does not intend to comply with its funding
obligations, or has made a public statement to that effect with respect to its funding obligations
hereunder or generally under other agreements in which it commits to extend credit, (c) has failed,
within one (1) Business Day after request by the Administrative Agent, to confirm in a manner
satisfactory to the Administrative Agent that it will comply with its funding obligations under
this Agreement or any other Loan Document, or (d) has otherwise failed to pay over to the
Administrative Agent or any Lender any amount required to be paid by it under this Agreement or any
other Loan Documents within three (3) Business days of the date when due, unless the subject of a
good faith dispute, (e) has, or has a direct or indirect parent company that has, (i) become the
subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or a custodian appointed for it, or (iii) taken any action in
furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or
appointment, or (f) believes in good faith to have defaulted under other syndicated or agented
credit facilities.



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



“Designated Borrower Notice” has the meaning specified in Section 2.14.



“Designated Borrower Request and Assumption Agreement” has the meaning specified in
Section 2.14.



“Designated Jurisdiction” means any country or territory to the extent that such
country or territory itself, or whose government, is the subject or target of comprehensive
Sanctions.



“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.



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



“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)).



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



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



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



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



“ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the 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) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity was a “substantial employer” as defined in Section
4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from
a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination
under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a
Pension Plan; (f) any 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; (g) the
determination that any Pension Plan is considered an at-risk plan or a plan in endangered or
critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304
and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.



“Eurodollar Business Day” means a day on which the relevant London international
financial markets are open for dealings in Dollar deposits and which is also other than a Saturday,
Sunday or day which shall be in the Commonwealth of Pennsylvania a legal holiday or day on which
banking institutions are required or authorized to close.



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



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of any
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which such Borrower is located and (c) except as provided
in the following sentence, in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Company under Section 10.13), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability
(other than as a result of a Change in Law) to comply with Section 3.01(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new Lending Office (or assignment), to receive additional amounts from the applicable Borrower
with respect to such withholding tax pursuant to Section 3.01(a). Notwithstanding anything
to the contrary contained in this definition, “Excluded Taxes” shall not include any withholding
tax imposed at any time on payments made by or on behalf of a Foreign Obligor to any Lender
hereunder or under any other Loan Document, provided that such Lender shall have complied
with the last paragraph of Section 3.01(e).



“Existing Credit Agreement” means that certain Credit Agreement, dated as of November
8, 2012, by and among the Company, certain of its Subsidiaries, Administrative Agent, and the
Existing Lenders, as amended from time to time through (but excluding) the date hereof.



“Existing Lenders” means each lender party to the Existing Credit Agreement.



“Existing Loan Documents” means all of the “Loan Documents” under (and as defined in)
the Existing Credit Agreement.



“Existing Obligations” means the “Obligations” under (and as defined in) the Existing
Credit Agreement.



“FATCA” means Sections 1471 through 1474 of the Code and any successor provision that
is substantively comparable and not materially more onerous to comply with, and in each case, any
regulations promulgated thereunder or official interpretations thereof.



“FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.



“Federal Funds Rate” means, for any day, a fluctuating interest 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, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.



“Foreign Lender” means, with respect to any Borrower, any Lender that is organized
under the laws of a jurisdiction other than that in which such Borrower is resident for tax
purposes (including such a Lender when acting in capacity of the L/C Issuer). For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



“Foreign Obligor” means a Loan Party that is a Foreign Subsidiary.



“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States, a State thereof or the District of Columbia.



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



“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.



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



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



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



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



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



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



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



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



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



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



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



(f) capital leases and Synthetic Lease Obligations;



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



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



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



“Indemnified Taxes” means Taxes other than Excluded Taxes.



“Indemnitees” has the meaning specified in Section 10.04(b).



“Information” has the meaning specified in Section 10.07.



“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date, and (b) as to any
Base Rate Loan (including a Swing Line Loan), the first Business Day of each calendar month and the
Maturity Date.



“Interest Period” means, as to each LIBOR Loan, the period commencing on the date such
LIBOR Loan is disbursed or converted to or continued as a LIBOR Loan and ending on the date one
month thereafter; provided that:




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




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




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



“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 and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. 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.



“IRS” means the United States Internal Revenue Service.



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



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



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



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



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



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



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



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



“Lender Party” means the Administrative Agent, the Lenders, the L/C Issuer, M & T and
its Affiliates and Subsidiaries (as and to the extent they are owed Banking Services Obligations,
or are a Swap Party to any Swap Contract with any Loan Party or their Affiliates or Subsidiaries) ,
the Indemnitees and all other holders of Obligations, including any and all other Swap Parties to
any other Swap Contract with any Loan Party or any of its Affiliates or Subsidiaries and other
holders of Banking Services Obligations (but only to the extent, with respect to Banking Service
Obligations and Swap Contracts, that such providers of Bank Services and Swap Parties are deemed to
have Obligations under clauses (b) and (c) of the definition of Obligations in this Agreement, and
have complied with any other applicable terms and conditions of the Agreement and the other Loan
Documents).



“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” means any letter of credit issued hereunder. A Letter of Credit
shall be a standby letter of credit.



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



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



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



“Letter of Credit Sublimit” means an amount equal to $6,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Commitments.



“LIBOR” means the rate per annum at which United States dollar deposits are offered on
Reuters LIBOR page 1 of the British Banker Association, for a period of time equal to the relevant
Interest Period on the day that is two Eurodollar Business Days preceding the commencement of such
Interest Period; provided, however, if the rate described above is not available on
any applicable interest determination date, then LIBOR shall be determined by the Administrative
Agent in accordance with such other method as the Administrative Agent may reasonably use to
determine LIBOR for other credit facilities. In the event that the Administrative Agent is unable
to obtain any such quotation as provided above, it will be deemed that LIBOR cannot be determined.



“LIBOR Loan” means a Committed Loan that bears interest at a rate based on Adjusted
LIBOR.



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



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



“Loan Documents” means this Agreement, each Designated Borrower Request and Assumption
Agreement, each Note, each Issuer Document, and any agreement creating or perfecting rights in Cash
Collateral pursuant to the provisions of Section 2.16 of this Agreement.



“Loan Parties” means, collectively, the Company and each Designated Borrower, and all
other Persons who in the future become borrowers, sureties, guarantors or are otherwise obligated
for the repayment of the Obligations.



“M&T” means Manufacturers and Traders Trust Company (also known as M&T Bank), and its
successors and assigns.



“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 and its Subsidiaries taken as a whole; (b) a
material impairment of the rights and remedies of the Administrative Agent or any Lender under any
Loan Document, or of the ability of any Loan Party to perform its obligations under any Loan
Document to which it is a party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to which it is a
party.



“Material Subsidiary” means, at any date of determination, any Subsidiary of the
Company that together with its Subsidiaries (a) has EBITDA in an amount equal to at least 10% of
the Consolidated EBITDA of the Company and its Subsidiaries, or (b) has assets in an amount equal
to at least 10% of the consolidated total assets of the Company and its Subsidiaries, in each case,
as determined for the most recently completed fiscal year for which the Lenders have received
financial statements of the Company and its Subsidiaries pursuant to Section 6.01(a),
commencing with the fiscal year ending December 31, 2015.



“Maturity Date” means November 6, 2020; provided, however, that if
such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.



“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.



“Multiple Employer Plan” means a Plan which has two or more contributing sponsors
(including the Borrower or any ERISA Affiliate) at least two of whom are not under common control,
as such a plan is described in Section 4064 of ERISA.



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



“Obligations” means (a) 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, (b)
Banking Services Obligations owing to the Administrative Agent, the L/C Issuer, any Lender or any
Affiliate or Subsidiary of the foregoing, and (c) obligations owing under any Swap Contract between
any Loan Party or any of its Affiliates or Subsidiaries with any Swap Party, and with respect to
all of the foregoing, in each case including interest and fees that accrue after the commencement
by or against any Loan Party or any Affiliate or Subsidiary thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding. Notwithstanding the foregoing, however,
with respect to any liabilities or other obligations of the type referred to clauses (b) and (c),
if such liabilities or other obligations are owing to any Person other than M&T (acting in any
capacity) or any of its Affiliates or Subsidiaries, unless agreed to in writing by the
Administrative Agent in its sole discretion, such liabilities and obligations shall not be deemed
to be Obligations owing under this Agreement or any of the other Loan Documents unless such Person
has agreed to be bound by the indemnification and exculpation provisions of this Agreement and
other Loan Documents for the benefit of the Administrative Agent and has complied with any other
applicable terms and conditions of this Agreement and the other Loan Documents, and the
Administrative Agent has received written notification of such liabilities or other obligations.



“OFAC” means the Office of Foreign Assets Control of the United States Department of
the Treasury.



“One-Month Adjusted LIBOR” means, as of any date, LIBOR with an Interest Period of one
month, as determined three Business Days prior to such date.



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



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



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



“Participant” has the meaning specified in Section 10.06(d).



“PBGC” means the Pension Benefit Guaranty Corporation.



“Pension Act” means the Pension Protection Act of 2006.



“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412
of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter,
Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.



“Pension Plan” means any employee pension benefit plan (including a Multiple Employer
Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA
Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Code.



“Permitted Liens” means any of the following:



(a) Liens pursuant to any Loan Document;



(b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the
amount secured or benefited thereby is not increased except as contemplated by Section
7.03(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and
(iv) any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.03(b);



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



(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;



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



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



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



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



(i) Liens securing Indebtedness permitted under Section 7.03(f) hereof;
provided that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not exceed the
cost or fair market value, whichever is lower, of the property being acquired on the date of
acquisition; and (iii) such secured Indebtedness does not exceed $7,500,000 in the aggregate at any
time.



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



“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any
such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any
of its employees.



“Platform” has the meaning specified in Section 6.02.



“Public Lender” has the meaning specified in Section 6.02.



“Register” has the meaning specified in Section 10.06(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 Committed Loans, a Committed 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 66
2/3% 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 8.02, Lenders holding in the aggregate more than 66 2/3% 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.



“Reserve Percentage” means the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves) which is imposed on member banks of the Federal
Reserve System against “Euro-currency Liabilities” as defined in Regulation D of the Board of
Governors of the Federal Reserve System (or any successor), as such regulation may be amended from
time to time or any successor regulation, as the maximum reserve requirement (including any basic,
supplemental, emergency, special, or marginal reserves) applicable with respect to Eurocurrency
liabilities as that term is defined in Regulation D (or against any other category of liabilities
that includes deposits by reference to which the interest rate of Eurodollar Loans is determined),
whether or not any Lender has any Eurocurrency liabilities subject to such reserve requirement at
that time.



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



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



“Sanctioned Persons” means, at any time, (a) any Person listed in any
Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State or
by the United Nations Security Council, the European Union or any European Union member state or
other relevant sanctions authority, (b) any Person operating, organized or resident in a Designated
Jurisdiction or (c) any Person owned or controlled by any Person described in the above clauses.



“Sanctions” means any economic or financial sanction administered or enforced by the
United States Government (including those administered by OFAC or the U.S. Department of State),
the United Nations Security Council, the European Union, Her Majesty’s Treasury, any European Union
member state or other relevant sanctions authority



“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.



“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.



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



“Swap Party” means any party to a Swap Contract that is a Lender or an Affiliate or
Subsidiary of a Lender (or at the time the applicable Swap Contract was entered into was a Lender
or an Affiliate or Subsidiary of a Lender), provided that in the case of any Lender other than M&T,
or any Affiliate or Subsidiary of such other Lender, (a) the Administrative Agent shall have
consented to such Person being a Swap Party (which consent shall not be unreasonably withheld,
conditioned or delayed) and (b) to the extent such Person is not a party to this Agreement, such
Person shall have executed and delivered to the Administrative Agent a joinder to this Agreement
(in form and substance satisfactory to the Administrative Agent) agreeing to be bound by the
provisions of this Agreement respecting the role of the Administrative Agent, including all
exculpatory provisions and indemnification provisions, as if such Person were a Lender hereunder
and the obligations under the Swap Contract were Obligations hereunder, or such other arrangement
as the Administrative Agent shall reasonably agree to.



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



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



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



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



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



“Swing Line Sublimit” means an amount of $5,000,000, or such other amount as the
Administrative Agent shall agree to in its sole discretion; provided, however, that the Swing Line
Sublimit shall be zero Dollars ($0) until there is more than one Lender under this Agreement.



“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).



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



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



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



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



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



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



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



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



1.03 Accounting Terms. (a) Generally. All accounting terms not
specifically or completely defined herein shall be construed in conformity with, and all financial
data (including financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed herein.
Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including
the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its
Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and
the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.



(b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the 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.



(c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Company and its Subsidiaries or to the determination of
any amount for the Company and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be deemed to include each variable interest entity that the Company is
required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a
Subsidiary as defined herein.



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



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



1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in
effect at such time; provided, however, that with respect to any Letter of Credit
that, by its terms or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be
deemed to be the 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.



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




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



2.02 Borrowings, Conversions and Continuations of Committed Loans.



(a) Each Borrowing shall be in the minimum amount of Two Hundred Thousand Dollars ($200,000)
and integral multiples of Twenty Five Thousand Dollars ($25,000) in excess of such minimum amount.
To effect a funding, the Company shall give the Administrative Agent a Committed Borrowing Notice
specifying the Type, amount and date of each intended Borrowing and the manner in which the same
shall be disbursed, which notice:




(i) in the case of a Borrowing that is a Base Rate Loan, shall be given no
later than 11:00 a.m. (Philadelphia, PA time) at least one Business Day prior to
the date of such Borrowing; provided, however, if M&T is the only Lender under this
Agreement, then a notice of borrowing can be given by not later than 11:00 AM
(Philadelphia, PA time) on the Business Day when a Borrowing is being requested.




(ii) in the case of a Borrowing that is a LIBOR Loan, shall be given no later
than 11:00 a.m. (Philadelphia, Pennsylvania time) at least three Eurodollar Business
Days prior to the date of such borrowing and shall specify the Interest Period with
respect to such Borrowing; and




(iii) in the case of Swing Line Loans, shall be given no later than 12:00 noon
(Philadelphia, Pennsylvania time) on the date of such Borrowing.



(b) Notwithstanding the foregoing, the Administrative Agent may (but is not obligated to) act
upon telephone notice by the Company whether or not written notice is received; provided nothing in
this sentence shall relieve the Company from providing written notice as provided by this Section.



(c) Except in the case of Swing Line Loans, the Administrative Agent in turn shall give prompt
written or telephonic (promptly confirmed in writing) notice to each Lender of its pro rata share
of the Borrowing, the interest rate option selected and the scheduled date of the funding. After
receipt of such notice, each Lender shall make such arrangements as are necessary to assure that
its share of the funding shall be immediately available (in Dollars) to the Administrative Agent’s
Office no later than 2:30 p.m. (Philadelphia, PA time), on the date on which the funding is to
occur. After receipt of the funds, the Administrative Agent, subject to the satisfaction of the
conditions precedent set forth in Section 4.02 (and, if such Borrowing is the initial
Credit Extension, Section 4.01), shall disburse the amount of such funding in accordance
with instructions in the Committed Loan Notice.



(d) The Lenders shall not be obligated to comply with a borrowing notice if there shall then
exist an Event of Default or a Default which has not been waived in writing by the Administrative
Agent regardless of whether the Lenders have determined to exercise their remedies arising upon the
occurrence of such Event of Default or Default.



(e) Except as otherwise provided herein, a LIBOR Loan may be continued or converted only on
the last day of an Interest Period for such LIBOR Loan. During the existence of a Default or Event
of Default, no Loans may be requested as, converted to or continued as LIBOR Loans without the
consent of the Required Lenders.



2.03 Letters of Credit.



(a) The Letter of Credit Commitment.




(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer
agrees, in reliance upon the agreements of the Lenders set forth in this Section
2.03, (1) from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit
for the account of the Borrowers, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to
honor drawings under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the Company or its
Subsidiaries and any drawings thereunder; provided that after giving effect
to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total
Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of
the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by
the Company for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by the Company that the L/C Credit Extension so requested
complies with the conditions set forth in the provisos to the preceding sentence.
Within the foregoing limits, and subject to the terms and conditions hereof, the
Company’s ability to obtain Letters of 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.




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




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




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




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




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




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




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




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




(E) any Lender is at that time a Defaulting Lender, unless the L/C
Issuer has entered into arrangements, including the delivery of Cash
Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the
Borrowers or such Lender to eliminate the L/C Issuer’s actual or potential
Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with
respect to the Defaulting Lender arising from either the Letter of Credit
then proposed to be issued or that Letter of Credit and all other L/C
Obligations as to which the L/C Issuer has actual or potential Fronting
Exposure, as it may elect in its sole discretion.




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




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




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



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




(i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of the 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 11:00 a.m. at least three Business Days (or such later date and time as
the Administrative Agent and the L/C Issuer may agree in a particular instance in
their sole discretion) prior to the proposed issuance date or date of amendment, as
the case may be. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount 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; (G) the purpose and nature of the requested Letter of Credit;
and (H) such other matters as the L/C Issuer may require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer (A) the
Letter of Credit to be amended; (B) the proposed date of amendment thereof (which
shall be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the L/C Issuer may require. Additionally, the 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 amendment,
including any Issuer Documents, as the L/C Issuer or the Administrative Agent may
require.




(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer
will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from
the Company and, if not, the L/C Issuer will provide the Administrative Agent with a
copy thereof. Unless the L/C Issuer has received written notice from any Lender,
the Administrative Agent or any Loan Party, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter of Credit, that one
or more applicable conditions contained in Article IV shall not then be
satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall,
on the requested date, issue a Letter of Credit for the account of the Company (or
the applicable Subsidiary) or enter into the applicable amendment, as the case may
be, in each case in accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance of 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 Applicable Percentage 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 in each such twelve-month period which shall be agreed upon at
the time such Letter of Credit is issued (the “Non-Extension Notice Date”).
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 date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation, at such time to issue such Letter of Credit
in its revised form (as extended) under the terms hereof (by reason of the
provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B)
it has received notice (which may be by telephone or in writing) on or before the
day that is seven Business Days before the Non-Extension Notice Date (1) from the
Administrative Agent that the Required Lenders or the L/C Issuer have or has 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
4.02 is not then satisfied, and in each such case directing the L/C Issuer not
to permit such extension.




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



(c) Drawings and Reimbursements; Funding of Participations.




(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of
a drawing under such Letter of Credit, the L/C Issuer shall notify the Company and
the Administrative Agent thereof. Not later than 11:00 a.m. on the date of any
payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor
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 Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and the amount of such Lender’s Applicable
Percentage thereof. In such event, the Company shall be deemed to have requested a
Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of Base Rate Loans, but
subject to the amount of the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Committed
Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.03(c)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.




(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the L/C Issuer,
at the Administrative Agent’s Office in an amount equal to its Applicable Percentage
of the Unreimbursed Amount not later than 12:00 p.m. on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Lender that so makes funds available shall be
deemed to have made a Base Rate Committed 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
Committed Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Company shall
be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Lender’s payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall constitute
an L/C Advance from such Lender in satisfaction of its participation obligation
under this Section 2.03.




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




(v) Each Lender’s obligation to make Committed Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated
by this Section 2.03(c), shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C Issuer, the
Company, any Subsidiary or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default or Event of Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Committed
Loans pursuant to this Section 2.03(c) is subject to the conditions set
forth in Section 4.02 (other than delivery by the Company of a Committed
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 2.03(c) by the time specified in
Section 2.03(c)(ii), then, without limiting the other provisions of this
Agreement, 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 the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with
banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection with
the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Committed Loan
included in the relevant Committed Borrowing or L/C Advance in respect of the
relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer
submitted to any 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 2.03(c), if the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the Company or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Lender its
Applicable Percentage thereof and in the same funds as those received by the
Administrative Agent.




(ii) If any payment received by the Administrative Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under
any of the circumstances described in Section 10.05 (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 Applicable
Percentage thereof on demand of the Administrative Agent, plus interest thereon from
the date of such demand to the date such amount is returned by such Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in full of
the Obligations and the termination of this Agreement.



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




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




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




(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 or any Subsidiary.



The Company shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the 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.



(f) Role of L/C Issuer. Each Lender and the Loan Parties agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the 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 Issuer Document. The Loan Parties hereby assume
all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Company’s pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the 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 special, indirect, incidental, speculative, exemplary, consequential,
punitive or other 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.



(g) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Company when a Letter of Credit is issued, the rules of the ISP shall apply to each such Letter of
Credit.



(h) Letter of Credit Fees. The Company shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the daily amount available to be drawn under such Letter of Credit; provided,
however, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender
with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash
Collateral satisfactory to the L/C Issuer pursuant to this Section 2.03 shall be payable,
to the maximum extent permitted by applicable Laws, to the other Lenders in accordance with the
upward adjustments in their respective Applicable Percentages allocable to such Letter of Credit
pursuant to Section 2.17(a)(iv), with the balance of such fee, if any, payable to the L/C
Issuer for its own account.. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. Letter of Credit Fees shall be (i) due and payable on the first
Business Day after the end of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any
change in the Applicable Rate during any quarter, the daily amount available to be drawn under each
Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Lenders, while any Event of Default
exists, all Letter of Credit Fees shall accrue at the Default Rate.



(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. At
such time as there is more than one Lender under this Agreement, the Borrowers shall pay directly
to the L/C Issuer, for its own account, a fronting fee equal to one-eighth of one percent (0.125%)
of the face amount of each Letter of Credit, computed on the daily amount available to be drawn
under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and
payable on the tenth Business Day after the end of each March, June, September and December in
respect of the most recently-ended quarterly period (or portion thereof, in the case of the first
payment), commencing with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.06. In addition, the Company shall pay
directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters
of credit as from time to time in effect. Such customary fees and standard costs and charges are
due and payable on demand and are nonrefundable.



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



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



2.04 Swing Line Loans.



(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, but only at such time as there is more than one Lender under this Agreement,
and in reliance upon the agreements of such other Lenders set forth in this Section 2.04,
to make 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 of the Swing Line Sublimit, notwithstanding the fact that such Swing Line
Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans
and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such
Lender’s Commitment; provided, however, that after giving effect to any Swing Line
Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage 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 borrow under this Section
2.04, prepay under Section 2.05, and reborrow under this Section 2.04;
provided, however, that in any event, any such Swing Line Loans must be repaid
pursuant to Section 2.07(b). Each Swing Line Loan shall be a Base Rate Loan and shall be
for working capital purposes. 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 Applicable Percentage times the amount of such Swing Line Loan.



(b) Borrowing Procedures. Each Swing Line Borrowing may 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, which shall be a minimum of $500,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the 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. 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 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first
proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the terms and
conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
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
Committed Loan in an amount equal to such Lender’s Applicable Percentage of the
amount of Swing Line Loans then outstanding. Such request shall be made in writing
(which written request shall be deemed to be a Committed Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.02, without
regard to the minimum and multiples specified therein for the principal amount of
Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments
and the conditions set forth in Section 4.02. The Swing Line Lender shall
furnish the Company with a copy of the applicable Committed Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Lender shall make an
amount equal to its Applicable Percentage of the amount specified in such Committed
Loan Notice available to the Administrative Agent in immediately available funds
(and the Administrative Agent may apply Cash Collateral available with respect to
the applicable Swing Line Loan) for the account of the Swing Line Lender at the
Administrative Agent’s Office not later than 12:00 p.m. on the day specified in such
Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each
Lender that so makes funds available shall be deemed to have made a Base Rate
Committed 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
Committed Borrowing in accordance with Section 2.04(c)(i), the request for
Base Rate Committed 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 2.04(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 2.04(c) by the time
specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to
recover from such Lender (acting through 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 the Federal Funds Rate and the rate
determined by the Swing Line Lender in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Swing Line Lender in connection with the foregoing. If
such Lender pays such amount (with interest and fees as aforesaid), the amount so
paid shall constitute such Lender’s Committed Loan included in the relevant
Committed Borrowing or funded participation in the relevant Swing Line Loan, as the
case may be. A certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.




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




(ii) If any payment received by the Swing Line Lender in respect of principal
or interest on any Swing Line Loan is required to be returned by the Swing Line
Lender under any of the circumstances described in Section 10.05 (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 Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal to the Federal
Funds Rate. The Administrative Agent will make such demand upon the request of the
Swing Line Lender. The obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this Agreement.



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



2.05 Prepayments. (a) Each Borrower may, upon notice from the Company to
the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans in
whole or in part without premium or penalty; provided that: (i) such notice must be
received by the Administrative Agent not later than 11:00 a.m. three Business Days prior to any
date of prepayment of LIBOR Loans, or on the date of prepayment of Base Rate Committed Loans; and
(ii) any prepayment shall be in a principal amount of $200,000, or a whole multiple of $25,000 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 Committed
Loans to be prepaid and, if LIBOR Loans are to be prepaid, the Interest Period(s) of such Loans.
The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and
of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given
by the Company, the applicable Borrower shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein. Any prepayment of a LIBOR
Loan shall be accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05. Subject to Section 2.17,
each such prepayment shall be applied to the Committed Loans of the Lenders in accordance with
their respective Applicable Percentages.



(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 12:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the 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 Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however, that
the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05(c) unless after the prepayment in full of the Committed Loans and Swing Line
Loans the Total Outstandings exceed the Aggregate Commitments then in effect.



2.06 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 11:00 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 $5,000,000 or any
whole multiple of $500,000 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 Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of
any such notice of termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable
Percentage. All fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.



2.07 Repayment of Loans. (a) The Borrowers shall repay to the Lenders on
the Maturity Date the aggregate principal amount of Committed Loans made to the Borrowers
outstanding on such date.



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



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



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




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




(iii) Upon the request of the Required Lenders, while any Event of Default
exists, the Borrowers 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.




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



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



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



(a) Unused Fee. The Company shall pay to the Administrative Agent for the account of
each Lender in accordance with its Applicable Percentage, an unused fee equal to the Applicable
Rate with respect to the Unused Fee times the actual daily amount by which the Aggregate
Commitments exceed the sum of (i) the Outstanding Amount of Committed Loans and (ii) the
Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.17.
The unused fee shall accrue at all times during the Availability Period, including at any time
during which one or more of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the last day of the
Availability Period. The unused fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that each such
Applicable Rate was in effect.



(b) Intentionally omitted.



(c) 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; Retroactive Adjustments of Applicable Rate.



(a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by
reference to the One-Month Adjusted LIBOR) 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. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest
error.



(b) If, as a result of any restatement of or other adjustment to the financial statements of
the Company or for any other reason, the Company or the Lenders determine that (i) the Consolidated
Fixed Charge Coverage Ratio as calculated by the Company as of any applicable date was inaccurate
and (ii) a proper calculation of the Consolidated Fixed Charge Coverage Ratio would have resulted
in higher pricing for such period, each Borrower shall immediately and retroactively be obligated
to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by
the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for
relief with respect to any Borrower under the Bankruptcy Code, automatically and without further
action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of
the amount of interest and fees that should have been paid for such period over the amount of
interest and fees actually paid for such period. This paragraph shall not limit the rights of the
Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section
2.03(c)(iii), 2.03(i) or 2.08(b) or under Article VIII. The Borrower’s
obligations under this paragraph shall survive the termination of the Aggregate Commitments and the
repayment of all other Obligations hereunder.



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 Borrowers 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 Borrowers 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 to a Borrower made through the Administrative Agent, such Borrower shall
execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence
such Lender’s Loans to such Borrower in addition to such accounts or records. Each Lender may
attach schedules to a Note and endorse thereon the date, Type (if applicable), amount, currency and
maturity of its Loans and payments with respect thereto.



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



2.12 Payments Generally; the Administrative Agent’s Clawback. (a)
General. All payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the applicable the
Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00
p.m. (Philadelphia time) on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Applicable Percentage (or other applicable share as provided herein)
of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All
payments received by the Administrative Agent (i) after 12:00 p.m. (Philadelphia time) shall be
deemed received on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by any Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.



(b) (i) Funding by Lenders; Presumption by the Administrative Agent.
Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date
of any Committed Borrowing of LIBOR Loans (or, in the case of any Committed Borrowing of Base Rate
Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender will not make
available to the Administrative Agent such Lender’s share of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans,
that such Lender has made such share available in accordance with and at the time required by
Section 2.02) and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender
and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to such Borrower to but excluding the date of
payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the
of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in
the case of a payment to be made by such Borrower, the interest rate applicable to Base Rate Loans.
If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same
or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount
of such interest paid by such Borrower for such period. If such Lender pays its share of the
applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Committed Loan included in such Committed Borrowing. Any payment by such
Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall
have failed to make such payment to the Administrative Agent.




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



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



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



(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender
to make any Committed Loan, to fund any such participation or to make any payment under Section
10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan, to purchase its participation or to make its payment under
Section 10.04(c).



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



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




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




(ii) the provisions of this Section shall not be construed to apply to (x) any
payment made by or on behalf of a Borrower pursuant to and in accordance with the
express terms of this Agreement (including the application of funds arising from the
existence of a Defaulting Lender), (y) the application of Cash Collateral provided
for in Section 2.16 or (z) any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Committed Loans or
subparticipations in L/C Obligations or Swing Line Loans to any assignee or
participant, other than an assignment to the Company or any Subsidiary thereof (as
to which the provisions of this Section shall apply).



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



2.14 Designated Borrowers. (a) Effective as of the date hereof, each of
Nutri/System IPHC, Inc., NSI Tech, Inc., Nutrisystem Everyday, LLC, NSI Retail, LLC, and NSI Cash
Management, Inc., shall each be a “Designated Borrower” hereunder, and may receive Loans for its
account on the terms and conditions set forth in this Agreement.



(b) The Company may at any time, upon not less than 15 Business Days’ notice from the Company
to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in
its sole discretion), designate any Material Subsidiary of the Company (an “Applicant
Borrower”) as a Designated Borrower to receive Loans hereunder by delivering to the
Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly
executed notice and agreement in substantially the form of Exhibit F (a “Designated
Borrower Request and Assumption Agreement”). The parties hereto acknowledge and agree that
prior to any Applicant Borrower becoming entitled to utilize the credit facilities provided for
herein, the Administrative Agent and the Lenders shall have received such supporting resolutions,
incumbency certificates, opinions of counsel and other documents or information, in form, content
and scope reasonably satisfactory to the Administrative Agent, as may be required by the
Administrative Agent or the Required Lenders in their sole discretion, and Notes signed by such new
Borrowers to the extent any Lenders so require. If the Administrative Agent and the Required
Lenders agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then
promptly following receipt of all such requested resolutions, incumbency certificates, opinions of
counsel and other documents or information, the Administrative Agent shall send a notice in
substantially the form of Exhibit G (a “Designated Borrower Notice”) to the Company
and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a
Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such
Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and
each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all
purposes of this Agreement; provided that no Committed Loan Notice or Letter of Credit
Application may be submitted by or on behalf of such Designated Borrower until the date five
Business Days after such effective date.



(c) The Obligations of the Company and each Designated Borrower that is a Domestic Subsidiary
shall be joint and several in nature, and the Company and each Domestic Subsidiary that is a
Designated Borrower shall be jointly and severally liable for all Loans, L/C Obligations and all
associated interest, fees and other charges under this Agreement, whether such Obligations are
those of a Domestic Subsidiary or a Foreign Subsidiary. The Obligations of all Designated
Borrowers that are Foreign Subsidiaries shall be several in nature. Each Borrower’s obligations
under this Agreement shall, to the fullest extent permitted by law, be unconditional irrespective
of (i) the validity or enforceability, avoidance, or subordination of the Obligations of any other
Borrower or the validity or enforceability, against any other Borrower, of any promissory note or
other document evidencing all or any part of the Obligations of any other Borrower, (ii) the
absence of any attempt to collect the Obligations from any other Borrower, or any other security
therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent,
extension, forbearance, or granting of any indulgence by the Administrative Agent or the Lenders
with respect to any provision of any instrument evidencing the Obligations of any other Borrower or
any part thereof, or any other agreement now or hereafter executed by any other Borrower and
delivered to the Administrative Agent or the Lenders, or (iv) any other circumstances which might
constitute a legal or equitable discharge or defense of a guarantor, surety or of any other
Borrower (other than actual indefeasible payment in full in cash). With respect to any Borrower’s
obligations arising as a result of the joint and several liability of Borrowers hereunder with
respect to advances of the Loans made to or for any of the other Borrowers hereunder, such Borrower
waives, until the Obligations shall have been indefeasibly paid in full in cash, and this Agreement
shall have been terminated, any right to enforce any right of subrogation or any remedy which the
Administrative Agent or the Lenders now has or may hereafter have against any other Borrower, or
any endorser of all or any part of the Obligations. During the existence of any Event of Default,
the Administrative Agent and the Lenders may proceed directly and at once, without notice, against
any Borrower to collect and recover the full amount, or any portion of the Obligations, without
first proceeding against any other Borrower or any other Person.



(d) Each Subsidiary of the Company that is or becomes a Designated Borrower pursuant to this
Section 2.14 hereby irrevocably appoints the Company as its agent for all purposes relevant
to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of
notices, (ii) the execution and delivery of all documents, instruments and certificates
contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any
Loans made by the Lenders to any such Designated Borrower hereunder. Any acknowledgment, consent,
direction, certification or other action which might otherwise be valid or effective only if given
or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given
or taken only by the Company, whether or not any such other Borrower joins therein. Any notice,
demand, consent, acknowledgement, direction, certification or other communication delivered to the
Company in accordance with the terms of this Agreement shall be deemed to have been delivered to
each Designated Borrower.



(e) The Company may from time to time, upon not less than 15 Business Days’ notice from the
Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative
Agent in its sole discretion), terminate a Designated Borrower’s status as such, provided
that (i) there are no outstanding Loans payable by such Designated Borrower, or other amounts
payable by such Designated Borrower on account of any Loans made to it, as of the effective date of
such termination, (ii) there exists no Default or Event of Default at such time, and (iii) such
Designated Borrower is no longer a Material Subsidiary. The Administrative Agent will promptly
notify the Lenders of any such termination of a Designated Borrower’s status.



2.15 Reserved.



2.16 Cash Collateral.



(a) Certain Credit Support Events. Upon the request of the Administrative Agent or
the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrowers shall,
in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.
At any time that there shall exist a Defaulting Lender, immediately upon the request of the
Administrative Agent, the L/C Issuer or the Swing Line Lender, the Borrowers shall deliver to the
Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after
giving effect to Section 2.17(a)(iv) and any Cash Collateral provided by the Defaulting
Lender).



(b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at M&T. The Borrower, and to the extent provided by any Lender, such Lender, hereby
grants to (and subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and agrees
to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of
the foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.16(c) . If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the Administrative Agent as
herein provided, or that the total amount of such Cash Collateral is less than 103% of the
applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant
Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the
Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency.



(c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.16 or Sections
2.03, 2.04, 2.05, 2.17 or 8.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations,
Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and other Obligations for
which the Cash Collateral was so provided, prior to any other application of such property as may
be provided for herein.



(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other Obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 10.06(b)(vi))) or (ii) the Administrative Agent’s good
faith determination that there exists excess Cash Collateral; provided, however,
(x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be released when there
exists a Default or Event of Default which has not been waived in writing by the Administrative
Agent (and following application as provided in this Section 2.16 may be otherwise applied
in accordance with Section 8.03), and (y) the Person providing Cash Collateral and the L/C
Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral shall not be released
but instead held to support future anticipated Fronting Exposure or other obligations.



2.17 Defaulting Lenders.



(a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no
longer a Defaulting Lender:




(i) Waivers and Amendments. That Defaulting Lender’s right to approve
or disapprove any amendment, waiver or consent with respect to this Agreement shall
be restricted as set forth in Section 10.01.




(ii) Reallocation of Payments. Any payment of principal, interest,
fees or other amounts received by the Administrative Agent for the account of that
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to
Article VIII or otherwise, and including any amounts made available to the
Administrative Agent by that Defaulting Lender pursuant to Section 10.08),
shall be applied at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any amounts owing by that Defaulting
Lender to the Administrative Agent hereunder; second, to the payment on a pro rata
basis of any amounts owing by that Defaulting Lender to the L/C Issuer or Swing Line
Lender hereunder; third, if so determined by the Administrative Agent or requested
by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future
funding obligations of that Defaulting Lender of any participation in any Swing Line
Loan or Letter of Credit; fourth, as the applicable Borrower may request (so long as
no Default or Event of Default exists), to the funding of any Loan in respect of
which that Defaulting Lender has failed to fund its portion thereof as required by
this Agreement, as determined by the Administrative Agent; fifth, if so determined
by the Administrative Agent and the Borrower, to be held in a non-interest bearing
deposit account and released in order to satisfy obligations of that Defaulting
Lender to fund Loans under this Agreement; sixth, to the payment of any amounts
owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer
or Swing Line Lender against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; seventh, so long as no
Default or Event of Default exists, to the payment of any amounts owing to the
Borrower as a result of any judgment of a court of competent jurisdiction obtained
by the Borrower against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; and eighth, to that
Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that if (x) such payment is a payment of the principal amount of
any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully
funded its appropriate share and (y) such Loans or L/C Borrowings were made at a
time when the conditions set forth in Section 4.02 were satisfied or waived,
such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed
to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the
payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender that
are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash
Collateral pursuant to this Section 2.17(a)(ii) shall be deemed paid to and
redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.




(iii) Certain Fees. That Defaulting Lender (x) shall not be entitled
to receive any Unused Fee pursuant to Section 2.09(a) for any period during
which that Lender is a Defaulting Lender (and the applicable Borrower shall not be
required to pay any such fee that otherwise would have been required to have been
paid to that Defaulting Lender) for any period during which that Lender is a
Defaulting Lender and (y) shall be limited in its right to receive Letter of Credit
Fees as provided in Section 2.03(i).




(iv) Reallocation of Applicable Percentages to Reduce Fronting
Exposure. During any period in which there is a Defaulting Lender, for purposes
of computing the amount of the obligation of each non-Defaulting Lender to acquire,
refinance or fund participations in Letters of Credit or Swing Line Loans pursuant
to Sections 2.03 and 2.04, the “Applicable Percentage” of each
non-Defaulting Lender shall be computed without giving effect to the Commitment of
that Defaulting Lender; provided, that, (i) each such reallocation shall be
given effect only if, at the date the applicable Lender becomes a Defaulting Lender,
no Default or Event of Default exists; and (ii) the aggregate obligation of each
non-Defaulting Lender to acquire, refinance or fund participations in Letters of
Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1)
the Commitment of that non-Defaulting Lender minus (2) the aggregate
Outstanding Amount of the Committed Loans of that Lender.



(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing Line
Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should
no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or
take such other actions as the Administrative Agent may determine to be necessary to cause the
Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to
be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without
giving effect to Section 2.17(a)(iv)), whereupon that Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and
provided, further, that except to the extent otherwise expressly agreed by the affected parties, no
change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from that Lender’s having been a Defaulting Lender.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.



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




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



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



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




(ii) Without limiting the provisions of subsection (a) or (b)
above and to the extent the Administrative Agent has not already been indemnified by
any Borrower with respect thereto, each Lender and the L/C Issuer shall, and does
hereby, indemnify the Administrative Agent, and shall make payment in respect
thereof within ten (10) days after demand therefor, against any and all Taxes and
any and all related losses, claims, liabilities, penalties, interest and expenses
(including the fees, charges and disbursements of any counsel for the Administrative
Agent) incurred by or asserted against the Administrative Agent by any Governmental
Authority as a result of the failure by such Lender or the L/C Issuer, as the case
may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of,
any documentation required to be delivered by such Lender or the L/C Issuer, as the
case may be, to the Administrative Agent pursuant to subsection (e). Each
Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and
apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the
case may be, under this Agreement or any other Loan Document against any amount due
to the Administrative Agent under this clause (ii). The agreements in this clause
(ii) shall survive the resignation and/or replacement of the Administrative Agent,
any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all other Obligations.



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



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




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




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




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




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




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




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




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




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




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



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



(g) FATCA. If a payment made to a Lender, L/C Issuer or the Administrative Agent
hereunder or under any Loan Document would be subject to United States Federal withholding tax
imposed by FATCA if such Lender, L/C Issuer or the Administrative Agent were to fail to comply with
the applicable reporting requirements of FATCA, such Lender, L/C Issuer or the Administrative
Agent, as the case may be, shall use reasonable efforts to deliver to the Borrowers and the
Administrative Agent such documentation as is required by FATCA to enable the Borrowers and the
Administrative Agent to comply with their obligations under FATCA.



3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Loans whose interest is determined by reference to the
Eurodollar Rate, or to determine or charge interest rates based upon Adjusted LIBOR, or any
Governmental Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice
thereof by such Lender to the Borrowers through the Administrative Agent, (i) any obligation of
such Lender to make or continue LIBOR Loans or to convert Base Rate Committed Loans to LIBOR Loans
shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or
maintaining Base Rate Loans the interest rate on which is determined by reference to the Adjusted
LIBOR component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall,
if necessary to avoid such illegality, be determined by the Administrative Agent without reference
to the Adjusted LIBOR component of the Base Rate, in each case until such Lender notifies the
Administrative Agent and the Borrowers that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender
(with a copy to the Administrative Agent), prepay or, if applicable, convert all LIBOR Loans of
such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if
necessary to avoid such illegality, be determined by the Administrative Agent without reference to
the Adjusted LIBOR component of the Base Rate), either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such LIBOR Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such LIBOR Loans and (y) if such
notice asserts the illegality of such Lender determining or charging interest rates based upon the
Adjusted LIBOR, the Administrative Agent shall during the period of such suspension compute the
Base Rate applicable to such Lender without reference to the Adjusted LIBOR component thereof until
the Administrative is advised in writing by such Lender that it is no longer illegal for such
Lender to determine or charge interest rates based upon the Adjusted LIBOR. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted.



3.03 Inability to Determine Rates. If the Required Lenders determine that for any
reason in connection with any request for a LIBOR Loan or a conversion to or continuation thereof
that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market
for the applicable amount and Interest Period of such LIBOR Loan, (b) adequate and reasonable means
do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to
a proposed LIBOR Loan or in connection with an existing or proposed Base Rate Loan, or (c) Adjusted
LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan does not adequately
and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Borrowers and each Lender. Thereafter, (x) the obligation of the Lenders to
make or maintain LIBOR Loans shall be suspended, and (y) in the event of a determination described
in the preceding sentence with respect to the Adjusted LIBOR component of the Base Rate, the
utilization of the Adjusted LIBOR component in determining the Base Rate shall be suspended, in
each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, the Borrowers may revoke any pending request for a
Borrowing of, conversion to or continuation of LIBOR Loans or, failing that, will be deemed to have
converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount
specified therein.



3.04 Increased Costs; Reserves on LIBOR Loans.



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




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




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




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



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



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



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



(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that no Borrower shall be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
the Company of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).



(e) Reserves on LIBOR Loans. The Borrowers 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 LIBOR 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 Borrowers shall have received at least 10
days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such
Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 10 days from receipt of such notice.



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



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



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



(c) any assignment of a LIBOR Loan on a day other than the last day of the Interest Period
therefor as a result of a request by the Company pursuant to Section 10.13;



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



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



3.06 Mitigation Obligations; Replacement of Lenders.



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



(b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Company
may replace such Lender in accordance with Section 10.13.



3.07 Survival. All of the Borrowers’ obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder
and resignation of the Administrative Agent.



ARTICLE IV




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




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



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




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




(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;




(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 Responsible 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, and
that each of the Company and each other Loan Party is validly existing, in good
standing and qualified to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business requires
such qualification, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect;




(v) a favorable opinion of Morgan Lewis & Bockius LLP, counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender, as to the matters
set forth in Exhibit H and such other matters concerning the Loan Parties
and the Loan Documents as may reasonably be requested;




(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 4.02(a) and (b) have
been satisfied, and (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;




(viii) evidence that all insurance required to be maintained pursuant to the
Loan Documents has been obtained and is in effect;




(ix) receipt by the Administrative Agent of satisfactory results of recent lien
and other searches required in each of the jurisdictions where the Borrowers are
located (within the meaning of Section 9-307 of the Uniform Commercial Code in
effect on the date hereof in the State of Delaware or the Commonwealth of
Pennsylvania, or the corresponding code or statute of any other applicable
jurisdiction) and such other locations as reasonably required by the Administrative
Agent;




(x) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, or the Swing Line Lender reasonably may
require; and




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



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



Without limiting the generality of the provisions of the last paragraph of Section 9.03,
for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date specifying its objection
thereto.



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



(a) The representations and warranties of (i) the Borrowers contained in Article V and
(ii) each Loan Party contained in each other Loan Document or in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct on and as of the date of
such Credit Extension, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 4.02, the representations and warranties contained
in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the
most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01.



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



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



(d) If the applicable Borrower is a Designated Borrower, then the conditions of Section
2.14 to the designation of such Borrower as a Designated Borrower shall have been met to the
satisfaction of the Administrative Agent.



(e) The Borrowers shall have delivered, or caused to be delivered, to Administrative Agent, a
Compliance Certificate demonstrating that the Borrowers would have been in compliance with
Section 7.11 hereof as of the end of the most recent four fiscal quarter period for which
the Borrowers have reported under Section 6.01(b) hereof.



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



ARTICLE V




REPRESENTATIONS AND WARRANTIES




Each Loan Party, as to itself and with respect to each Subsidiary, represents and warrants to
the Administrative Agent and the Lenders that:



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



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



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



5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party
thereto. This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan
Party that is party thereto in accordance with its terms.



5.05 Financial Statements; No Material Adverse Effect.



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



(b) The unaudited consolidated balance sheet of the Company and its Subsidiaries dated
September 30, 2015, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present 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 audit
adjustments. Schedule 5.05 sets forth all material indebtedness and other liabilities,
direct or contingent, of the Company and its consolidated Subsidiaries as of the date of such
financial statements, including liabilities for taxes, material commitments and Indebtedness.



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



(d) The consolidated forecasted balance sheet and statements of income and cash flows of the
Company and its Subsidiaries delivered pursuant to Section 6.01(c) were prepared in good
faith on the basis of the assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts.



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



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



5.08 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
Permitted Liens.



5.09 Environmental Compliance. The Loan Parties conduct in the ordinary course of
business a review of the effect of existing Environmental Laws and claims alleging potential
liability or responsibility for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof the Company has reasonably concluded that such
Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.



5.10 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.



5.11 Taxes. The Company and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except 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. Neither any
Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.



5.12 ERISA Compliance.



(a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state laws. Each Pension Plan that is intended to be a
qualified plan under Section 401(a) of the Code has received a favorable determination letter from
the Internal Revenue Service to the effect that the form of such Plan is qualified under Section
401(a) of the Code and the trust related thereto has been determined by the Internal Revenue
Service to be exempt from federal income tax under Section 501(a) of the Code, or an application
for such a letter is currently being processed by the Internal Revenue Service. To the best
knowledge of any Loan Party, nothing has occurred that would prevent or cause the loss of such
tax-qualified status.



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



(c) (i) No ERISA Event has occurred, and neither any Borrower nor any ERISA Affiliate is aware
of any fact, event or circumstance that could reasonably be expected to constitute or result in an
ERISA Event with respect to any Pension Plan; (ii) the Borrowers and each ERISA Affiliate has met
all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no
waiver of the minimum funding standards under the Pension Funding Rules has been applied for or
obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target
attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither
any Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be
expected to cause the funding target attainment percentage for any such plan to drop below 60% as
of the most recent valuation date; (iv) no Borrower nor any ERISA Affiliate has incurred any
liability to the PBGC other than for the payment of premiums, and there are no premium payments
which have become due that are unpaid; (v) no Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension
Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or
circumstance has occurred or exists that could reasonably be expected to cause the PBGC to
institute proceedings under Title IV of ERISA to terminate any Pension Plan.



(d) No Borrower or any ERISA Affiliate maintains or contributes to, or has any unsatisfied
obligation to contribute to, or liability under, any active or terminated Pension Plan.



5.13 Subsidiaries; Equity Interests. The Loan Parties have no Subsidiaries or equity
investments in any other corporation or entity other than those (a) specifically disclosed in on
Schedule 5.13 and (b) Subsidiaries and equity investments which the Company has acquired or
created to the extent permitted or not prohibited by this Agreement or the Loan Documents;
provided that the Company has provided ten (10) Business Days prior written notice to the
Administrative Agent of such acquisition or creation and complies to the extent applicable, with
Section 6.13 hereof. All of the outstanding Equity Interests in such Subsidiaries
described in clauses (a) and (b) of this Section 5.13 have been validly issued, are fully
paid and nonassessable and are owned by a Loan Party in the amounts specified on Schedule
5.13 or, as to (b) above notified by the Company, free and clear of all Liens other than
Permitted Liens.



5.14 Margin Regulations; Investment Company Act.



(a) No Borrower is engaged or will engage, principally or as one of its important activities,
in the business of purchasing or carrying margin stock (within the meaning of Regulation T, U or X
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 or is
required to be registered as an “investment company” under the Investment Company Act of 1940.



5.15 Disclosure. No report, financial statement, certificate or other information
furnished (whether in writing or orally) by or on behalf of any Loan Party to the Administrative
Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of
this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with respect to
projected financial information, the Company represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.



5.16 Compliance with Laws.



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



(b) No Borrower, nor any of its Subsidiaries, nor any director or officer thereof, nor, to
such Borrower’s knowledge, any employee, Affiliate, agent, representative or Person acting on
behalf of such Borrower or of any of its Subsidiaries, has, in the course of its actions for, or on
behalf of, such Borrower or any Subsidiary, directly or indirectly (i) used any corporate funds of
such Borrower or any such Subsidiary for any contribution, gift, entertainment or other expenses
relating to political activity, in each case, in violation of any applicable Anti-Corruption Law,
(ii) made any direct or indirect payment to any foreign or domestic government official or employee
or any other Person in violation of any applicable Anti-Corruption Law, or (iii) violated or is in
violation, in any material respect, of any provision of applicable Anti-Corruption Law.



(c) Each Borrower has implemented and maintains in effect policies and procedures designed to
ensure compliance by such Borrower and its Subsidiaries with applicable Sanctions and such Borrower
and its Subsidiaries are in compliance with applicable Sanctions in all respects. None of each
Borrower, any of its Subsidiaries, or any director, officer, employee, agent, or Affiliate of such
Borrower or any of its Subsidiaries is a Sanctioned Person.



(d) The operations of each Borrower and its Subsidiaries are and have been conducted at all
times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or
proceeding by or before any Governmental Authority involving such Borrower or any of its
Subsidiaries with respect to any potential material violation of any Anti-Money Laundering Law is
pending or, to the knowledge of such Borrower, threatened. Each Borrower has provided to
Administrative Agent all information regarding the Borrower and its Subsidiaries and Affiliates
necessary for Administrative Agent to comply with applicable “know your customer” and Anti-Money
Laundering Laws and such information is true and correct.



(e) No Borrower nor any of its directors, officers, employees, Affiliates or representatives
is an individual or entity currently the subject of Sanctions, nor is the Borrower located,
organized or resident in any Designated Jurisdiction.



5.17 Taxpayer Identification Number; Other Identifying Information. The true and
correct U.S. taxpayer identification number of the Company and each Designated Borrower that is a
Domestic Subsidiary and a party hereto on the Closing Date is set forth on Schedule 5.17.
The true and correct unique identification number of each Designated Borrower that is a Foreign
Subsidiary and a party hereto on the Closing Date that has been issued by its jurisdiction of
organization and the name of such jurisdiction are set forth on Schedule 5.17.



ARTICLE VI




AFFIRMATIVE COVENANTS




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



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



(a) as soon as available, but in any event within ninety (90) days after the end of each
fiscal year of the Company (commencing with the fiscal year ended December 31, 2015), 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, such
consolidated statements to be audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing reasonably acceptable to the
Administrative Agent and the Required Lenders, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to the scope of
such audit, and such consolidating statements to be certified by the chief executive officer, chief
financial officer, treasurer or controller of the Company to the effect that such statements are
fairly stated in all material respects when considered in relation to the consolidated financial
statements of the Company and its Subsidiaries;



(b) as soon as available, but in any event within forty-five (45) days after the end of each
of the first three fiscal quarters of each fiscal year of the Company (commencing with the fiscal
quarter ended September 30, 2015, 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
Company’s fiscal year then ended, setting forth in each case in comparative form the figures for
the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, such consolidated statements to be certified by the
chief executive officer, chief financial officer, treasurer or controller 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 audit
adjustments and the absence of footnotes and such consolidating statements to be certified by the
chief executive officer, chief financial officer, treasurer or controller of the Company to the
effect that such statements are fairly stated in all material respects when considered in relation
to the consolidated financial statements of the Company and its Subsidiaries; and



(c) as soon as available, but in any event within ninety (90) days after the end of each
fiscal year of the Company, forecasts prepared by management of the Company, in form satisfactory
to the Administrative Agent and the Required Lenders, of consolidated balance sheets and statements
of income or operations and cash flows of the Company and its Subsidiaries on a quarterly basis for
the immediately following fiscal year (including the fiscal year in which the Maturity Date
occurs), which forecasts shall be prepared in a manner consistent with the Company’s financial
statements and, where possible, in accordance with GAAP.



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



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



(a) concurrently with the delivery of the financial statements referred to in Section
6.01(a), a certificate of Borrowers’ independent certified public accountants certifying such
financial statements and, if a Covenant Testing Period was in effect at the end of the fiscal year
for which such financial statements are delivered, stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default with respect to the financial
covenants contained in Section 7.11 hereof during such Covenant Testing Period or, if any
such Default or Event of Default with respect to such financial covenants existed, stating the
nature and status of such event;



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



(c) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of directors
(or the audit committee of the board of directors) of the Loan Parties by independent accountants
in connection with the accounts or books of the Loan Parties 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 Loan Parties, 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 Securities Exchange
Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant
hereto;



(e) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;



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



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



Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(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 10.02; 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 whether sponsored by the Administrative Agent); provided that: (i) 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 (ii) the Company shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such
documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every
instance the Company shall be required to provide paper copies of the Compliance Certificates
required by Section 6.02(b) to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the 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.



Each Loan Party hereby acknowledges that (a) the Administrative Agent may make available to
the Lenders and the L/C Issuer materials and/or information provided by or on behalf of such Loan
Party hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material
non-public information with respect to any of the Loan Parties or their respective Affiliates, or
the respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. Each Loan Party hereby agrees
that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Loan
Parties shall be deemed to have authorized the Administrative Agent, the L/C Issuer and the Lenders
to treat such Borrower Materials as not containing any material non-public information with respect
to the Loan Parties or their respective securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 10.07); (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor;” and (z) the Administrative Agent shall be entitled to treat
any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion
of the Platform not designated “Public Investor.”



6.03 Notices. Promptly after obtaining knowledge thereof notify the Administrative
Agent and each Lender:



(a) of the occurrence of any Default or Event of 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 any Loan Party or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Loan Party or any Subsidiary and any Governmental Authority;
or (iii) the commencement of, or any material development in, any litigation or proceeding
affecting the Loan Party 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 Loan
Party or any Subsidiary, including any determination by the Company referred to in Section
2.10(b).



Each notice pursuant to this Section 6.03 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 6.03(a) shall describe with particularity any and all provisions of
this Agreement and any other Loan Document that have been breached.



6.04 Payment of Obligations. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Loan Parties or such Subsidiary; (b) all lawful
claims which, if unpaid, would by law become a Lien (other than a Permitted Lien) upon its
property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such Indebtedness, except in each
case to the extent that any failure to pay or discharge such obligations or liabilities would not
be reasonably expected to have a Material Adverse Effect.



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



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



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



6.07 Insurance. Maintain with financially sound and reputable insurance companies
that are 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.



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



6.09 Books and Records. (a) Maintain proper books of record and account,
in which full, true and correct entries in 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; and



(b) maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over the Loan Parties 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 the expense of the Loan Parties and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable advance notice to the
Company; provided, however, that when an Event of Default exists the Administrative
Agent or any Lender (or any of their respective representatives or independent contractors) may do
any of the foregoing at the expense of the Loan Parties at any time during normal business hours
and without advance notice.



6.11 Use of Proceeds. Use the proceeds of the Credit Extensions: (i) to refinance in
full the Indebtedness (if any) owing under the Existing Credit Agreement; (ii) for working
capital, capital expenditures and other lawful general corporate purposes of the Borrowers not in
contravention of any Law or of any Loan Document; (iii) to finance any other Investment permitted
under the other provisions of Section 7.02 that would constitute an acquisition under the
definition of Investment; and (iv) to finance Restricted Payments and repurchases of Equity
Interests permitted hereunder.



6.12 Approvals and Authorizations. Maintain all authorizations, consents, approvals
and licenses from, exemptions of, and filings and registrations with, each Governmental Authority
of the jurisdiction in which each Foreign Obligor is organized and existing, and all approvals and
consents of each other Person in such jurisdiction, in each case that are required in connection
with the Loan Documents.



6.13 Additional Designated Borrowers/ Dissolution of Certain Subsidiaries. Notify the
Administrative Agent at the time that any Person becomes a Domestic Subsidiary, and promptly
thereafter (and in any event within 30 days), if such Person is a Material Subsidiary, cause such
Person to (a) become a Designated Borrower (or unlimited guarantor or surety, as elected by the
Administrative Agent) by executing and delivering to the Administrative Agent a counterpart of the
Designated Borrower Request and Assumption Agreement or such other document as the Administrative
Agent shall deem appropriate for such purpose, and (b) deliver to the Administrative Agent
documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and
favorable opinions of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in clause (a)), all in
form, content and scope reasonably satisfactory to the Administrative Agent.



6.14 Intentionally omitted.



6.15 Intentionally omitted.



6.16 Primary Deposit Relationship and Cash Collateralization of Obligations. In
consideration of the Commitment made available under this Agreement, and the rates of interest and
fees made available to the Borrowers, the Loan Parties establish and maintain their primary
securities accounts and deposit relationships (including all operating, cash management and
collection or lockbox services) with the Administrative Agent. The Administrative Agent may, in its
sole discretion, waive or modify the requirement that the forgoing types of accounts be maintained
with the Administrative Agent.



6.17 Intentionally omitted.



6.18 Further Assurances. Promptly upon request by the Administrative Agent, or any
Lender through the Administrative Agent, (a) correct any defect or error that may be discovered in
any Loan Document or in the execution or acknowledgment thereof, and (b) do, execute, acknowledge,
and/or deliver any and all such further acts, deeds, certificates, assurances and other instruments
as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require
from time to time in order to (i) carry out more effectively the purposes of the Loan Documents,
and (ii) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively
unto the Administrative Agent, for the benefit of the Lenders, the rights granted or now or
hereafter intended to be granted to the Administrative Agent or any Lender under any Loan Document
or under any other instrument executed in connection with any Loan Document to which any Loan Party
or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.



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, the
Loan Parties shall not, nor shall they permit any Subsidiary to, directly or indirectly:



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



7.02 Investments. Make any Investments, except:



(a) Investments held by any Loan Party or such Subsidiary in the form of cash equivalents or
short-term marketable debt securities or auction rate securities;



(b) advances to officers, directors and employees of any Loan Party and Subsidiaries in an
aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;



(c) Investments of the Company in any wholly-owned Subsidiary and Investments of any
wholly-owned Subsidiary in the Company or in another wholly-owned 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 7.03; and



(f) other Investments so long as (i) immediately prior to each such Investment and after
giving pro forma effect to each such Investment, no Default or Event of Default exists; and (ii)
if, after giving effect to such Investment, a Covenant Testing Period exists, Borrowers shall have
delivered to the Administrative Agent a Compliance Certificate demonstrating that the Borrowers
would have been in pro forma compliance with Section 7.11 hereof as of the end of the most
recent four fiscal quarter period for which the Borrowers have reported under Section
6.01(b) hereof had such Investment been made during such period.



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



(a) Indebtedness under the Loan Documents;



(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that 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) Guarantees of the Company or any Subsidiary with respect to which the Indebtedness that is
the subject of the Guarantees does not exceed 5% of Consolidated Net Worth;



(e) 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;



(f) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in Section
7.01(i); provided, however, that the aggregate amount of all such secured
Indebtedness at any one time shall not exceed $7,500,000; and



(g) intercompany Indebtedness by and among the Borrowers.



7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default or Event of 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, the wholly-owned
Subsidiary shall be the continuing or surviving Person and a Loan Party;



(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, if the transferor is a Loan Party, then the
transferee must also be a Loan Party); and



(c) without limiting the foregoing, any Subsidiary may be dissolved so long as such
Subsidiary is neither a Designated Borrower nor a Material Subsidiary.



7.05 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) Dispositions of property by any Subsidiary to the Company or to a wholly-owned Subsidiary;
provided that if the Subsidiary making the Disposition is a Loan Party, then the recipient of such
Disposition shall also be a Loan Party;



(e) Dispositions permitted by Section 7.04; and



(f) other Dispositions with a value of less than $1,000,000;



provided, however, that any Disposition pursuant to clauses (a) through (f) shall
be for fair market value.



7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, except that, so long as no
Default or Event of Default shall have occurred at the time of any action described below, or would
result therefrom:



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



(b) the Company and each Subsidiary may declare and make Restricted Payments payable solely in
the common stock or other common Equity Interests of such Person;



(c) the Company and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests
issued by it so long as immediately prior to such purchase, redemption or other acquisition, and
after giving effect thereto: (i) no Default or Event of Default exists, and (ii) if, after giving
effect to such purchase, redemption or other acquisition, a Covenant Testing Period exists,
Borrowers have delivered to the Administrative Agent a Compliance Certificate demonstrating that
the Borrowers would have been in pro forma compliance with Section 7.11 hereof as of the
end of the most recent four fiscal quarter period then ended, had such purchase, redemption or
acquisition been made during such period; and



(d) the Company may declare or pay cash Restricted Payments to its stockholders so long as
immediately prior to the declaration and payment of each such Restricted Payment and after giving
effect thereto: (i) no Default or Event of Default exists, and (ii) if, after giving effect to such
Restricted Payment, a Covenant Testing Period exists, Borrowers have delivered to the
Administrative Agent a Compliance Certificate demonstrating that the Borrowers would have been in
pro forma compliance with Section 7.11 hereof as of the end of the most recent four fiscal
quarter period then ended, had such Restricted Payment(s) been made during such period.



7.07 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by each Loan Party and its
Subsidiaries on the date hereof, those lines of business that have a similar target market or
retail sales, online subscriptions or sales through the medical community, or any business
substantially related or incidental thereto.



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



7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this
Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make
Restricted Payments to the Company or any other Borrower, (ii) of any Subsidiary to Guarantee the
Indebtedness of any Loan Party or (iii) of the Loan Parties or any Subsidiary to create, incur,
assume or suffer to exist Liens on property of such Person; provided, however, that
this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any
holder of Indebtedness permitted under Section 7.03(e) solely to the extent any such
negative pledge relates to the property financed by or the subject of such Indebtedness; or (b)
requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure
another obligation of such Person.



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



7.11 Minimum Consolidated Fixed Charge Coverage Ratio. During any Covenant Testing
Period, permit the Consolidated Fixed Charge Ratio as of the end of each period of four consecutive
fiscal quarters of the Company to be less than 1.00 to 1.0.



7.12 Intentionally omitted.



7.13 Sanctions. Directly or indirectly, use the proceeds of any Credit
Extension or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint
venture partner or other Person, to fund any activities of or business with any Person, or in any
Designated Jurisdiction, that, at the time of such funding, is, or whose government is, the subject
of Sanctions, or in any manner that would result in a violation of Sanctions by any Person
(including any individual or entity participating in the transaction, whether as Lender,
Administrative Agent, Swing Line Lender, L/C Issuer or otherwise).



7.14 Anti-Corruption. Directly or indirectly, use the proceeds of any Credit
Extension or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint
venture partner or other Person in furtherance of an offer, payment, promise to pay or
authorization of the payment or giving of money or anything else of value, to any Person in
violation of any Anti-Corruption Laws.



ARTICLE VIII




EVENTS OF DEFAULT AND REMEDIES




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



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



(b) Specific Covenants. The Company or any other Loan Party fails to perform or
observe any term, covenant or agreement contained in any of Section 6.01, 6.02,
6.03, 6.05, 6.10, 6.11, 6.13, 6.16 or Article
VII; or



(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days, or any
default or Event of Default occurs under (and as defined in) any other Loan Document; or



(d) 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 in a material respect when made or deemed made; or



(e) Cross-Default. (i) Any Loan Party or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount of more than $5,000,000, or (B) fails to
observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee
or contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which any Loan Party 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 any Loan Parties 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 $2,000,000; or



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



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



(h) Judgments. There is entered against any Loan Parties or any Subsidiary (i) one or
more final judgments or orders for the payment of money in an aggregate amount (as to all such
judgments or orders) exceeding $2,000,000 (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary
final judgments that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced
by any creditor upon such judgment or order, or (B) there is a period of 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



(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Company under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $2,000,000, or (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of $2,000,000; or



(j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect,
or any Loan Party or any other Person contests in any manner the validity or enforceability of any
provision 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 provision of
any Loan Document; or



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



8.02 Remedies Upon Event of Default. If any Event of Default occurs which has not
been waived in writing by the Administrative Agent, 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 Loan Parties;



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



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



provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Loan Party under the Bankruptcy Code, 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
Loan Parties to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any Lender.



8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall, subject to the
provisions of Sections 2.16 and 2.17, be applied by the Administrative Agent in the
following order:



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



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



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



Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, together with any other Obligations owing to the Lenders or other
Lender Parties (including any Banking Services Obligations and any Swap Contracts between any Loan
Party or any of its Affiliates or Subsidiaries and any Swap Party, to the extent such Banking
Services Obligations or amounts due such Swap Party under such Swap Contract constitute Obligations
under this Agreement), ratably among the Lenders, the L/C Issuer and the Lender Parties, as
applicable, in proportion to the respective amounts described in this clause Fourth held by
them;



Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit to the extent not otherwise Cash Collateralized pursuant to Sections 2.03 and
2.16; and



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



For purposes of this Section 8.03, if there are Obligations arising out of Swap
Contracts with any Lender or any Affiliate thereof, the Administrative Agent shall determine
whether such Obligations are most appropriately characterized as interest, principal, fees or other
and shall add those obligations to the appropriate category above. Any determination of the
Administrative Agent in this regard shall be conclusive absent manifest error, provided,
however, that the characterization of such Obligations shall be the same with respect to
all Lenders.



Subject to Section 2.03(c) and Section 2.16, amounts used to Cash
Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above
shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount
remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or
expired, such remaining amount shall be applied to the other Obligations, if any, in the order set
forth above.



ARTICLE IX




ADMINISTRATIVE AGENT




9.01 Appointment and Authority.



Each of the Lenders and other Lender Parties, as applicable, hereby irrevocably appoints M&T
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 other Lender Parties, and neither
any Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such
provisions. Without limiting the generality of the foregoing, the Lenders and the other Lender
Parties hereby authorize the Administrative Agent (in its sole discretion):




(i) in connection with the sale or other disposition of any asset included in
the Collateral or all of the capital stock or other equity interest in any Loan
Party, to the extent undertaken in accordance with the terms of this Agreement, to
release a Lien granted to it (for the benefit of the Lender Parties) on such asset
or capital stock or equity interest and/or to release such Loan Party from its
obligations hereunder;




(ii) to determine that the cost to the Company or any Loan Party is
disproportionate to the benefit to be realized by the Administrative Agent, the
Lenders and the other Lender Parties by perfecting a Lien in a given asset or group
of assets included in the Collateral and that the Company or such Loan Party should
not be required to perfect such Lien in favor of the Administrative Agent (for the
benefit of the Lender Parties);




(iii) to appoint sub-agents to be the holder of record of a Lien to be granted
to the Administrative Agent (for the benefit of the Lender Parties) or to hold on
behalf of the Administrative Agent the Collateral or instruments relating thereto;




(iv) to enter into and perform its obligations under the other Loan Documents;
and




(v) to execute and deliver the agreements contemplated by Section
10.01.



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



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



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



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



(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
any of the Loan Parties or any of their respective 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 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default or Event of Default unless and until notice
describing such Default or Event of Default is given to the Administrative Agent by the Company, a
Lender or the L/C Issuer, which notice states that it is a “Notice of Default” or “Notice of an
Event of Default”.



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 or Event of 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.



9.04 Reliance by the Administrative Agent.



The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (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 any of the Loan Parties), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts. It is acknowledged that counsel to the
Administrative Agent exclusively represents the Administrative Agent and, absent an express written
agreement to the contrary, there are no third party beneficiaries of that relationship.



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



9.06 Resignation of the Administrative Agent. (a) 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, with the consent of
the Company (provided that no Event of Default exists which has not been waived in writing by the
Administrative Agent), to appoint a successor, which shall be a bank with an office in the United
States, or an Affiliate of any such bank with an office in the United States. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the 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 (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as the 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 (or retired) 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 Loan Parties 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 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as the Administrative Agent.



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



9.07 Non-Reliance on the Administrative Agent and Other Lenders. Each Lender
and other Lender Party, as applicable, acknowledges that it has, independently and without reliance
upon the Administrative Agent (or its counsel, advisors or agents) 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 and the other Loan
Documents. Each Lender and other Lender Party, as applicable, also acknowledges that it will,
independently and without reliance upon the Administrative Agent (or its counsel, advisors or
agents) or any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.



9.08 Reserved.



9.09 The Administrative Agent May File Proofs of Claim.



(a) In case of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, in addition to any other rights or remedies
provided under the Loan Documents or applicable Laws, the Administrative Agent (irrespective of
whether the principal of any Obligations 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 any Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise:




(i) 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 other Lender
Parties allowed in such judicial proceeding; and




(ii) to collect and receive any monies or other property payable or deliverable
on any such claims and to distribute the same.



Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.



(b) In addition to any other rights and remedies hereunder or under the other Loan Documents
or applicable Laws, upon the occurrence of an Event of Default which has not been waived in writing
by the Administrative Agent, each of the Lender Parties hereby authorizes the Administrative Agent
to take such actions on behalf of the Lender Parties and to exercise such powers as are delegated
to the Administrative Agent by the terms hereof and the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto and exercise any other rights and remedies
under applicable Laws, in the name of the Lender Parties or otherwise, including sell, assign,
lease, license (on an exclusive or nonexclusive basis) or otherwise dispose of the Collateral or
any part thereof in one or more parcels at public or private sale, at any of the Administrative
Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and
at such price or prices and upon such other terms as the Administrative Agent may deem commercially
reasonable and to credit bid any or all of the Obligations on behalf of the Lender Parties in
connection with any sale or other disposition of any or all assets or equity of any or all Loan
Parties.



ARTICLE X




MISCELLANEOUS




10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by the Company or any other 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, however, that no such amendment, waiver or consent shall:



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



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



(c) release of any Borrower hereunder, without the written consent of each Lender;



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



(e) 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 10.01) any fees
or other amounts payable hereunder or under any other Loan Document, or change the manner of
computation of any financial ratio (including any change in any applicable defined term) used in
determining the Applicable Rate that would result in a reduction of any interest rate on any Loan
or any fee payable hereunder without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders shall be necessary
to amend the definition of “Default Rate” or to waive any obligation of any Borrower to pay
interest or Letter of Credit Fees at the Default Rate;



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



(g) 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;



and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; and (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. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder, (and any amendment,
waiver or consent which by its terms requires the consent of all Lenders or each affected Lender
may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except
that (x) the Commitment of any Defaulting Lender may not be increased or extended without the
consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all
Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than
other affected Lenders shall require the consent of such Defaulting Lender.



10.02 Notices; Effectiveness; Electronic Communication.



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




(i) if to a Loan Party, the Administrative Agent, the L/C Issuer or the Swing
Line Lender, to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 10.02; and




(ii) if to any other Lender, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire
(including, as appropriate, notices delivered solely to the Person designated by a
Lender on its Administrative Questionnaire then in effect for the delivery of
notices that may contain material non-public information relating to the Borrower).



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



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



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



(c) [Reserved]



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



(e) Reliance by the Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of
any Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete
or were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties
shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of any Loan Party. All telephonic notices
to and other telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such recording.



10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative
Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder 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.



Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as the Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may
be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as the
Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders
shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section
8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding
proviso and subject to Section 2.13, any Lender may, with the consent of the Required
Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.



10.04 Expenses; Indemnity; Damage Waiver.



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



(b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges
and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee
or asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party
arising out of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations hereunder or thereunder, the
consummation of the transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration
of this Agreement and the other Loan Documents (including in respect of any matters addressed in
Section 3.01), (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 any Loan Party or any of its Subsidiaries,
or any Environmental Liability related in any way to any Loan Party or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether brought by a third
party or by the 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, 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 other Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.



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



(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable Laws, no Loan Party shall assert, and each of them hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, incidental, speculative, exemplary,
consequential, punitive or other damages (as opposed to direct or actual damages) arising out of,
in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter
of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b)
above shall be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed to such unintended recipients by such Indemnitee through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than
for direct or actual damages resulting from the gross negligence or willful misconduct of such
Indemnitee as determined by a final and nonappealable judgment of a court of competent
jurisdiction.



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



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



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



10.06 Successors and Assigns.



(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither any Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.



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




(i) Minimum Amounts.




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




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




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




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




(A) the consent of the Company (such consent not to be unreasonably
withheld, conditioned or delayed) shall be required unless (1) an Event of
Default has occurred which has not been waived in writing by the
Administrative Agent or (2) such assignment is to a Lender, an Affiliate of
a Lender or an Approved Fund; provided that the Company shall be
deemed to have consented to any such assignment unless it shall object
thereto by written notice to the Administrative Agent within ten (10)
Business Days after having received notice thereof;




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




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




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




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




(v) No Assignment to Certain Persons. No such assignment shall be made
(A) to any Loan Party or any of their Affiliates or Subsidiaries, or (B) to any
Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a
Lender hereunder, would constitute any of the foregoing Persons described in this
clause (B), or (C) to a natural Person.




(vi) Certain Additional Payments. In connection with any assignment of
rights and obligations of any Defaulting Lender hereunder, no such assignment shall
be effective unless and until, in addition to the other conditions thereto set forth
herein, the parties to the assignment shall make such additional payments to the
Administrative Agent in an aggregate amount sufficient, upon distribution thereof as
appropriate (which may be outright payment, purchases by the assignee of
participations or subparticipations, or other compensating actions, including
funding, with the consent of the Company and the Administrative Agent, the
applicable pro rata share of Loans previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder
(and interest accrued thereon) and (y) acquire (and fund as appropriate) its full
pro rata share of all Loans and participations in Letters of Credit and Swing Line
Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing,
in the event that any assignment of rights and obligations of any Defaulting Lender
hereunder shall become effective under applicable Laws without compliance with the
provisions of this paragraph, then the assignee of such interest shall be deemed to
be a Defaulting Lender for all purposes of this Agreement until such compliance
occurs



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



(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers (and such agency being solely for tax purposes), 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
Loan Parties, 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. In addition, the Administrative Agent shall
maintain on the Register information regarding the designation, and revocation of designation, of
any Lender as a Defaulting Lender. The Register shall be available for inspection by the Borrowers
and any Lender, at any reasonable time and from time to time upon reasonable prior notice.



(d) Participations. Any Lender may at any time, without the consent of, or notice to,
any Loan Parties or the Administrative Agent, sell participations to any Person (other than a
natural person, a Defaulting Lender or the Loan Parties or any of the Loan Parties 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 Loan Parties, the Administrative Agent, the Lenders and the L/C
Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement.



Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, each Loan Party agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to subsection (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section
10.08 as though it were a Lender, provided such Participant agrees to be subject to Section
2.13 as though it were a Lender.



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



(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note(s), 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) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time M&T assigns all of its Commitment and
Loans pursuant to subsection (b) above, M&T 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 a successor L/C Issuer or Swing Line
Lender hereunder; provided, however, that no failure by the Company to appoint any
such successor shall affect the resignation of M&T as L/C Issuer or Swing Line Lender, as the case
may be. If M&T resigns as L/C Issuer, it shall retain all the rights, powers, privileges and
duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Committed Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If M&T 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 Committed Loans or fund
risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the
appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to M&T to effectively assume the obligations of
M&T with respect to such Letters of Credit.



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



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



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



10.08 Right of Setoff. If an Event of Default shall have occurred which has not been
waived in writing by the Administrative Agent, each Lender, the L/C Issuer and each of their
respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable Laws, to set off and apply any and all deposits (general or special, time
or demand, provisional or final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for
the credit or the account of any Borrower or any other Loan Party against any and all of the
obligations of such Borrower or such Loan Party now or hereafter existing under this Agreement or
any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such
Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document
and although such obligations of such Borrower or such Loan Party may be contingent or unmatured or
are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office
holding such deposit or obligated on such indebtedness; provided, that in the event that
any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be
paid over immediately to the Administrative Agent for further application in accordance with the
provisions of Section 2.17 and, pending such payment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the
Administrative Agent a statement describing in reasonable detail the Obligations owing to such
Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the
L/C Issuer and their respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective
Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Company and the
Administrative Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and application.



10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Laws (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 Laws, (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.



10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this Agreement.



10.11 Survival of Representations and Warranties. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by the Administrative
Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or Event of 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.



10.12 Severability. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.12, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable,
then such provisions shall be deemed to be in effect only to the extent not so limited.



10.13 Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any Loan Party is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender is a Defaulting Lender or if any other circumstance exists hereunder that gives the Company
the right to replace a Lender as a party hereto, then the Company may (provided that no Event of
Default exists which has not been waived in writing by the Administrative Agent), at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 10.06), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:



(a) the Company shall have paid (or caused a Loan Party to pay) to the Administrative Agent
the assignment fee specified in Section 10.06(b);



(b) such Lender shall have received payment of an amount equal to 100% of the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 3.05) from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company or applicable Loan Party (in the case of all other amounts);



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



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



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



10.14 Governing Law; Jurisdiction; Etc. 



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



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



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



(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAWS.



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



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



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



10.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrowers 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 Borrowers, which information includes the name and address
of each Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act. Each Borrower shall, promptly
following a request by the Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender requests in order to comply with its
ongoing obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.



ARTICLE XI




AMENDMENT AND RESTATEMENT




11.01 Amendment and Restatement. This Agreement is an amendment and restatement of
the Existing Credit Agreement and it is not intended to be, nor shall it be construed as, a
discharge of the Existing Obligations to the Administrative Agent and the Lenders or a novation of
any Borrower’s responsibilities and obligations to the Administrative Agent and the Lenders
pursuant to the Existing Credit Agreement or the Existing Loan Documents previously executed in
favor of the Administrative Agent and the Lenders. Except as expressly modified hereby, and except
to the extent the Existing Credit Agreement and Existing Loan Documents are specifically amended
and restated, all terms and conditions of the Existing Credit Agreement and Existing Loan Documents
shall remain unmodified and in full force and effect and are hereby ratified and confirmed by the
Borrowers. All Existing Obligations under the Existing Credit Agreement as of the Closing Date
shall be deemed to be Obligations hereunder.



11.02 Release by Borrowers. Borrowers hereby waive and release and forever discharge
the Administrative Agent and Lenders, and the officers, directors, attorneys, agents and employees
of each, from any liability, damage, claim, loss or expense of any kind, known to Borrowers on or
before the Closing Date, that any Borrower may now have against the Administrative Agent or Lenders
or any of them arising or originating in whole or in part out of or relating to the Obligations,
the Existing Credit Agreement, the Existing Loan Documents, this Agreement or the Loan Documents.



11.03 Release by Administrative Agent and Lenders. In consideration of the mutual
premises contained and set forth herein, including without limitation the releases set forth in
Section 11.02 above, the Administrative Agent, for itself and the other Lenders and Lender
Parties (as defined in the Existing Credit Agreement), hereby agrees that, effective upon the
Closing Date: (a) all Liens upon, and pledges and rights of set off against, any and all properties
and assets of any Loan Party and any other Person liable on or in respect of the Existing
Obligations, heretofore granted, pledged or assigned by a Loan Party to Administrative Agent for
itself and other Lender Parties pursuant to the Existing Credit Agreement and the Existing Loan
Documents are hereby released and terminated; and (b) the Administrative Agent, at Borrowers’
expense, shall deliver to Borrowers and, if applicable, execute and file and/or record: (i) any
Uniform Commercial Code termination statements to effectuate the release of record of the financing
statements naming the Administrative Agent, as secured party, and each Loan Party, as debtor, that
are currently filed of record and for which the Administrative Agent has the recording information,
(ii) releases of security interest in patents, trademarks and copyrights with respect to any
patents, trademarks and copyrights pledged by Borrowers to and in favor of the Administrative
Agent, for the benefit of the Lender Parties, and (iii) any original stock certificates pledged by
any Loan Party to the Administrative Agent, together with any original stock powers duly executed
in blank with respect thereto, and (c) Borrowers are authorized by the Administrative Agent to file
such termination statements and such other release documents on behalf of the Administrative Agent
as Borrowers deem reasonably necessary to more fully effectuate this Section 11.03.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




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




NUTRISYSTEM, INC.




By: /s/ Michael P. Monahan




	 	 	Michael P. Monahan






EVP & CFO




NUTRI/SYSTEM IPHC, INC.




By: /s/ Michael P. Monahan




	 	 	Michael P. Monahan






CFO




NSI TECH, INC.




By: /s/ Michael P. Monahan




	 	 	Michael P. Monahan






EVP & CFO




NUTRISYSTEM EVERYDAY, LLC




By: /s/ Michael P. Monahan




	 	 	Michael P. Monahan






EVP & CFO




NSI RETAIL, LLC




By: /s/ Michael P. Monahan




	 	 	Michael P. Monahan






EVP & CFO




NSI CASH MANAGEMENT, INC.




By:  /s/ Michael P. Monahan




	 	 	Michael P. Monahan






CFO



[SIGNATURES CONTINUE ON FOLLOWING PAGE]





1







MANUFACTURERS AND TRADERS TRUST COMPANY, as
Administrative Agent, a Lender, L/C Issuer and Swing
Line Lender



	 	 	 
	By: /s/ Sarah S. Hudak

	 

	Name:

Title:

	 	Sarah S. Hudak

Vice President






SCHEDULE 2.01




COMMITMENTS




AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	Applicable
	 	 	 	 	 	 	Percentage
	Manufacturers and Traders Trust Company

	 	$	50,000,000	 	 	 	100.000000000	%
	Total

	 	$	50,000,000	 	 	 	100.000000000	%






SCHEDULE 10.02




ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES




	 	 	 
	BORROWER: NUTRISYSTEM INC
	Nutrisystem, Inc.

	 	

	Attention: Kathleen E. Simone, Senior Vice President & Controller

	Fort Washington Executive Center

600 Office Center Drive

Fort Washington, PA 19034-3232

Telephone #: 215-706-5332

Facsimile #: 215-706-5388

E-mail: ksimone@nutrisystem.com

and

Nutrisystem, Inc.

	 	















	Attention: Ralph J. Mauro, Esq., Senior Vice President & General Counsel

	Fort Washington Executive Center

600 Office Center Drive

Fort Washington, PA 19034-3232

Telephone #: 215-346-8746

Facsimile #: 215-346-8112

E-mail: rmauro@nutrisystem.com

M&T ADMINISTRATION CONTACTS:

	 	













	DAILY OPERATIONS CONTACT (Notices for payments/requests for credit extensions):

	 

	Attention:

Telephone #:

Facsimile #:

	 	Kim D. Montgomery

(610) 520-8474

(610) 520-1425






E-mail: kmontgomery@mtb.com



Mailing Address for each of the contacts listed above:


Manufacturers and Traders Trust Company


797 E. Lancaster Avenue


Villanova, PA 19085



USD PAYMENT INSTRUCTIONS:


M & T Bank


797 E. Lancaster Avenue


Villanova, PA 19085


ABA -0220-00046


Acct # [TBD ]


Acct Name: [TBD]


Ref: [TBD]



Other Notices as Administrative Agent:



Manufacturers and Traders Trust Company


Attention: Sarah S. Hudak


797 E. Lancaster Avenue


Villanova, PA 19085


Telephone #: 610-520-1442


Facsimile #: 610-520-1425


E-mail: shudak@mtb.com



L/C ISSUER:




2