Exhibit 10.1


 


CREDIT AGREEMENT


 


Dated as of April 30, 2010


 


among


 


GLOBAL GEOPHYSICAL SERVICES, INC.,


 


as the Borrower,


 


BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and

L/C Issuer,


 


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH


as Syndication Agent,


 


and


 


The Other Lenders Party Hereto


 


BANC OF AMERICA SECURITIES LLC,


 


as Sole Lead Arranger and Sole Book Manager


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE I

  DEFINITIONS AND ACCOUNTING TERMS

  1

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined
  Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.02

  	
  Other
  Interpretive Provisions

  	
  27

  
	
   

  	
   

  	
   

  
	
  1.03

  	
  Accounting
  Terms

  	
  28

  
	
   

  	
   

  	
   

  
	
  1.04

  	
  Rounding

  	
  28

  
	
   

  	
   

  	
   

  
	
  1.05

  	
  Times
  of Day

  	
  28

  
	
   

  	
   

  	
   

  
	
  1.06

  	
  Letter
  of Credit Amounts

  	
  29

  
	
   

  	
   

  	
   

  
	
  1.07

  	
  Exchange
  Rates; Currency Equivalents

  	
  29

  
	
   

  	
   

  	
   

  
	
  1.08

  	
  Additional
  Alternative Currencies

  	
  29

  
	
   

  	
   

  	
   

  
	
  1.09

  	
  Change
  of Currency

  	
  30

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE II

  THE COMMITMENTS AND CREDIT EXTENSIONS

  30

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  The
  Loans

  	
  30

  
	
   

  	
   

  	
   

  
	
  2.02

  	
  Borrowings,
  Conversions and Continuations of Loans

  	
  30

  
	
   

  	
   

  	
   

  
	
  2.03

  	
  Letters
  of Credit

  	
  32

  
	
   

  	
   

  	
   

  
	
  2.04

  	
  Swing
  Line Loans

  	
  40

  
	
   

  	
   

  	
   

  
	
  2.05

  	
  Prepayments

  	
  43

  
	
   

  	
   

  	
   

  
	
  2.06

  	
  Termination
  or Reduction of Commitments

  	
  44

  
	
   

  	
   

  	
   

  
	
  2.07

  	
  Repayment
  of Loans

  	
  44

  
	
   

  	
   

  	
   

  
	
  2.08

  	
  Interest

  	
  44

  
	
   

  	
   

  	
   

  
	
  2.09

  	
  Fees

  	
  45

  
	
   

  	
   

  	
   

  
	
  2.10

  	
  Computation
  of Interest and Fees; Retroactive Adjustments of Applicable Rate

  	
  46

  
	
   

  	
   

  	
   

  
	
  2.11

  	
  Evidence
  of Debt

  	
  46

  
	
   

  	
   

  	
   

  
	
  2.12

  	
  Payments
  Generally; Administrative Agent’s Clawback

  	
  47

  
	
   

  	
   

  	
   

  
	
  2.13

  	
  Sharing
  of Payments by Lenders

  	
  49

  
	
   

  	
   

  	
   

  
	
  2.14

  	
  Increase
  in Commitments

  	
  50

  
	
   

  	
   

  	
   

  
	
  2.15

  	
  Cash
  Collateral

  	
  51

  
	
   

  	
   

  	
   

  
	
  2.16

  	
  Defaulting Lenders

  	
  52

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE III

  TAXES, YIELD PROTECTION AND ILLEGALITY

  54

  	
   

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
  54

  
	
   

  	
   

  	
   

  
	
  3.02

  	
  Illegality

  	
  57

  
	
   

  	
   

  	
   

  
	
  3.03

  	
  Inability
  to Determine Rates

  	
  58

  
	
   

  	
   

  	
   

  
	
  3.04

  	
  Increased
  Costs; Reserves on Eurodollar Rate Loans

  	
  58

  
	
   

  	
   

  	
   

  
	
  3.05

  	
  Compensation
  for Losses

  	
  60

  
	
   

  	
   

  	
   

  
	
  3.06

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
  61

  
	
   

  	
   

  	
   

  
	
  3.07

  	
  Survival

  	
  61

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IV

  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  61

  	
   

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions
  of Initial Credit Extension

  	
  61

  
	
   

  	
   

  	
   

  
	
  4.02

  	
  Conditions
  to all Credit Extensions

  	
  65

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE V

  REPRESENTATIONS AND WARRANTIES

  66

  	
   

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Existence,
  Qualification and Power

  	
  66

  
	
   

  	
   

  	
   

  
	
  5.02

  	
  Authorization;
  No Contravention

  	
  66

  
	
   

  	
   

  	
   

  
	
  5.03

  	
  Governmental
  Authorization; Other Consents

  	
  67

  
	
   

  	
   

  	
   

  
	
  5.04

  	
  Binding
  Effect

  	
  67

  
	
   

  	
   

  	
   

  
	
  5.05

  	
  Financial
  Statements; No Material Adverse Effect

  	
  67

  
	
   

  	
   

  	
   

  
	
  5.06

  	
  Litigation

  	
  68

  
	
   

  	
   

  	
   

  
	
  5.07

  	
  No
  Default

  	
  68

  
	
   

  	
   

  	
   

  
	
  5.08

  	
  Ownership
  of Property; Liens

  	
  68

  
	
   

  	
   

  	
   

  
	
  5.09

  	
  Environmental
  Compliance

  	
  69

  
	
   

  	
   

  	
   

  
	
  5.10

  	
  Insurance

  	
  69

  
	
   

  	
   

  	
   

  
	
  5.11

  	
  Taxes

  	
  70

  
	
   

  	
   

  	
   

  
	
  5.12

  	
  ERISA
  Compliance

  	
  70

  
	
   

  	
   

  	
   

  
	
  5.13

  	
  Subsidiaries;
  Equity Interests; Loan Parties

  	
  71

  
	
   

  	
   

  	
   

  
	
  5.14

  	
  Margin Regulations; Investment Company Act

  	
  71

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  5.15

  	
  Disclosure

  	
  71

  
	
   

  	
   

  	
   

  
	
  5.16

  	
  Compliance
  with Laws

  	
  72

  
	
   

  	
   

  	
   

  
	
  5.17

  	
  Intellectual
  Property; Licenses, Etc.

  	
  72

  
	
   

  	
   

  	
   

  
	
  5.18

  	
  Solvency

  	
  72

  
	
   

  	
   

  	
   

  
	
  5.19

  	
  Casualty,
  Etc.

  	
  72

  
	
   

  	
   

  	
   

  
	
  5.20

  	
  Labor
  Matters

  	
  72

  
	
   

  	
   

  	
   

  
	
  5.21

  	
  Sanctioned
  Persons

  	
  72

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VI

  AFFIRMATIVE COVENANTS

  73

  	
   

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Financial
  Statements

  	
  73

  
	
   

  	
   

  	
   

  
	
  6.02

  	
  Certificates;
  Other Information

  	
  74

  
	
   

  	
   

  	
   

  
	
  6.03

  	
  Notices

  	
  77

  
	
   

  	
   

  	
   

  
	
  6.04

  	
  Payment
  of Obligations

  	
  77

  
	
   

  	
   

  	
   

  
	
  6.05

  	
  Preservation
  of Existence, Etc.

  	
  77

  
	
   

  	
   

  	
   

  
	
  6.06

  	
  Maintenance
  of Properties

  	
  77

  
	
   

  	
   

  	
   

  
	
  6.07

  	
  Maintenance
  of Insurance

  	
  78

  
	
   

  	
   

  	
   

  
	
  6.08

  	
  Compliance
  with Laws

  	
  78

  
	
   

  	
   

  	
   

  
	
  6.09

  	
  Books
  and Records

  	
  78

  
	
   

  	
   

  	
   

  
	
  6.10

  	
  Inspection
  Rights

  	
  78

  
	
   

  	
   

  	
   

  
	
  6.11

  	
  Use
  of Proceeds

  	
  78

  
	
   

  	
   

  	
   

  
	
  6.12

  	
  Covenant
  to Guarantee Obligations and Give Security

  	
  78

  
	
   

  	
   

  	
   

  
	
  6.13

  	
  Compliance
  with Environmental Laws

  	
  83

  
	
   

  	
   

  	
   

  
	
  6.14

  	
  Preparation
  of Environmental Reports

  	
  83

  
	
   

  	
   

  	
   

  
	
  6.15

  	
  Further
  Assurances

  	
  83

  
	
   

  	
   

  	
   

  
	
  6.16

  	
  Material
  Contracts

  	
  84

  
	
   

  	
   

  	
   

  
	
  6.17

  	
  Designation
  as Senior Debt

  	
  84

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VII

  NEGATIVE COVENANTS

  84

  	
   

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Liens

  	
  84

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  7.02

  	
  Indebtedness

  	
  86

  
	
   

  	
   

  	
   

  
	
  7.03

  	
  Investments

  	
  88

  
	
   

  	
   

  	
   

  
	
  7.04

  	
  Fundamental
  Changes

  	
  90

  
	
   

  	
   

  	
   

  
	
  7.05

  	
  Dispositions

  	
  90

  
	
   

  	
   

  	
   

  
	
  7.06

  	
  Restricted
  Payments

  	
  91

  
	
   

  	
   

  	
   

  
	
  7.07

  	
  Change
  in Nature of Business

  	
  92

  
	
   

  	
   

  	
   

  
	
  7.08

  	
  Transactions
  with Affiliates

  	
  92

  
	
   

  	
   

  	
   

  
	
  7.09

  	
  Burdensome
  Agreements

  	
  92

  
	
   

  	
   

  	
   

  
	
  7.10

  	
  Use
  of Proceeds

  	
  93

  
	
   

  	
   

  	
   

  
	
  7.11

  	
  Financial
  Covenants

  	
  93

  
	
   

  	
   

  	
   

  
	
  7.12

  	
  Amendments
  of Organization Documents

  	
  93

  
	
   

  	
   

  	
   

  
	
  7.13

  	
  Accounting
  Changes

  	
  94

  
	
   

  	
   

  	
   

  
	
  7.14

  	
  Prepayments,
  Etc. of Indebtedness

  	
  94

  
	
   

  	
   

  	
   

  
	
  7.15

  	
  Amendment,
  Etc. of Senior Notes Documents and Indebtedness

  	
  94

  
	
   

  	
   

  	
   

  
	
  7.16

  	
  Assets
  of Non-Loan Parties

  	
  94

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VIII

  EVENTS OF DEFAULT AND REMEDIES

  94

  	
   

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Events
  of Default

  	
  94

  
	
   

  	
   

  	
   

  
	
  8.02

  	
  Remedies
  upon Event of Default

  	
  96

  
	
   

  	
   

  	
   

  
	
  8.03

  	
  Application
  of Funds

  	
  97

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IX

  ADMINISTRATIVE AGENT

  98

  	
   

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Appointment
  and Authority

  	
  98

  
	
   

  	
   

  	
   

  
	
  9.02

  	
  Rights
  as a Lender

  	
  99

  
	
   

  	
   

  	
   

  
	
  9.03

  	
  Exculpatory
  Provisions

  	
  99

  
	
   

  	
   

  	
   

  
	
  9.04

  	
  Reliance
  by Administrative Agent

  	
  100

  
	
   

  	
   

  	
   

  
	
  9.05

  	
  Delegation
  of Duties

  	
  100

  
	
   

  	
   

  	
   

  
	
  9.06

  	
  Resignation
  of Administrative Agent

  	
  100

  
	
   

  	
   

  	
   

  
	
  9.07

  	
  Non-Reliance on Administrative Agent and Other
  Lenders

  	
  101

  



 


iv

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  9.08

  	
  No
  Other Duties, Etc.

  	
  102

  
	
   

  	
   

  	
   

  
	
  9.09

  	
  Administrative
  Agent May File Proofs of Claim

  	
  102

  
	
   

  	
   

  	
   

  
	
  9.10

  	
  Collateral
  and Guaranty Matters

  	
  102

  
	
   

  	
   

  	
   

  
	
  9.11

  	
  Secured
  Cash Management Agreements and Secured Hedge Agreements

  	
  103

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE X

  MISCELLANENOUS

  103

  	
   

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Amendments,
  Etc.

  	
  103

  
	
   

  	
   

  	
   

  
	
  10.02

  	
  Notices;
  Effectiveness; Electronic Communications

  	
  105

  
	
   

  	
   

  	
   

  
	
  10.03

  	
  No
  Waiver; Cumulative Remedies; Enforcement

  	
  107

  
	
   

  	
   

  	
   

  
	
  10.04

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  108

  
	
   

  	
   

  	
   

  
	
  10.05

  	
  Payments
  Set Aside

  	
  110

  
	
   

  	
   

  	
   

  
	
  10.06

  	
  Successors
  and Assigns

  	
  110

  
	
   

  	
   

  	
   

  
	
  10.07

  	
  Treatment
  of Certain Information; Confidentiality

  	
  114

  
	
   

  	
   

  	
   

  
	
  10.08

  	
  Right
  of Setoff

  	
  115

  
	
   

  	
   

  	
   

  
	
  10.09

  	
  Interest
  Rate Limitation

  	
  116

  
	
   

  	
   

  	
   

  
	
  10.10

  	
  Counterparts;
  Integration; Effectiveness

  	
  116

  
	
   

  	
   

  	
   

  
	
  10.11

  	
  Survival
  of Representations and Warranties

  	
  116

  
	
   

  	
   

  	
   

  
	
  10.12

  	
  Severability

  	
  117

  
	
   

  	
   

  	
   

  
	
  10.13

  	
  Replacement
  of Lenders

  	
  117

  
	
   

  	
   

  	
   

  
	
  10.14

  	
  Governing
  Law; Jurisdiction; Etc.

  	
  118

  
	
   

  	
   

  	
   

  
	
  10.15

  	
  Waiver
  of Jury Trial

  	
  118

  
	
   

  	
   

  	
   

  
	
  10.16

  	
  No
  Advisory or Fiduciary Responsibility

  	
  119

  
	
   

  	
   

  	
   

  
	
  10.17

  	
  Electronic
  Execution of Assignments and Certain Other Documents

  	
  119

  
	
   

  	
   

  	
   

  
	
  10.18

  	
  USA
  PATRIOT Act

  	
  119

  
	
   

  	
   

  	
   

  
	
  10.19

  	
  ENTIRE AGREEMENT

  	
  120

  



 


v

















 


TABLE OF CONTENTS


(continued)


 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  2.01

  	
  Commitments
  and Applicable Percentages

  
	
  5.08(b)

  	
  Existing
  Liens

  
	
  5.08(c)

  	
  Owned
  Real Property

  
	
  5.08(d)(i)

  	
  Leased
  Real Property (Lessee)

  
	
  5.08(d)(ii)

  	
  Leased
  Real Property (Lessor)

  
	
  5.08(e)

  	
  Existing
  Investments

  
	
  5.13

  	
  Subsidiaries
  and Other Equity Investments; Loan Parties

  
	
  5.17

  	
  Intellectual
  Property Matters

  
	
  7.02

  	
  Existing
  Indebtedness

  
	
  7.09

  	
  Burdensome
  Agreements

  
	
  10.02

  	
  Administrative
  Agent’s Office, Certain Addresses for Notices

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Form of

  	
   

  
	
  A

  	
  Revolving
  Credit Loan Notice

  
	
  B

  	
  Swing
  Line Loan Notice

  
	
  C

  	
  Note

  
	
  D

  	
  Compliance
  Certificate

  
	
  E

  	
  Assignment
  and Assumption

  



 


vi
















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (“Agreement”)
is entered into as of April 30, 2010,
among  GLOBAL GEOPHYSICAL SERVICES, INC., a Delaware corporation (the “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer.


 


PRELIMINARY STATEMENTS:


 


The Borrower has requested
that the Lenders provide a revolving credit facility, and the Lenders have
indicated their willingness to lend and the L/C Issuer has indicated its
willingness to issue letters of credit, in each case, on the terms and subject
to the conditions set forth herein.


 


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


 


ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS


 


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


 


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


 


“Administrative Agent’s Office”
means the Administrative Agent’s address and, as appropriate, account as set
forth on Schedule 10.02, or such other address or account as the
Administrative Agent may from time to time notify to the Borrower and the
Lenders.


 


“Administrative Questionnaire” means
an Administrative Questionnaire in a form provided or otherwise 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.  The
initial amount of the Aggregate Commitments is $50,000,000.


 


“Agreement” means this Credit
Agreement.


 


“Alternative Currency”
means each of Algerian Dinar, Argentine New Peso, Australian Dollar, Brazil
Real, British Pound, Brunei Dollar, Canadian Dollar, Chilean Peso, Colombian
Peso, Egyptian Pound, Euro, Georgian Lari, Indian Rupee, Indonesian Rupiah,
Iraqi Dinar, Kuwaiti Dinar, Mexican Peso, New Zealand Dollar, Nigerian Naira,
Omani Rial, Peruvian New Sol, Saudi Arabian Riyal, Singapore Dollar, Tunisian
Dinar, United Arab Emirates Dirham, Venezuelan Bolivar and each other currency
(other than Dollars) that is approved in accordance with Section 1.08.


 

















 


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


 


“Applicable Fee Rate”
means, at any time, 0.75% per annum.


 


“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
adjustment as provided in Section 2.16.  If the commitment of each Lender to make
Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have
been terminated pursuant to Section 8.02, or if the Commitments
have expired, then the Applicable Percentage of each Lender in respect of the Aggregate Commitments shall be
determined based on the Applicable Percentage of such Lender in respect of the Aggregate Commitments 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 (i) from the Closing Date to the
date on which the Administrative Agent receives a Compliance Certificate
pursuant to Section 6.02(b) for the fiscal quarter ending June 30,
2010, 3.00% per annum for Base Rate Loans and 4.00% per annum for Eurodollar
Rate Loans and Letter of Credit Fees and (ii) thereafter, the applicable
percentage per annum set forth below determined by reference to the
Consolidated Leverage 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 Leverage Ratio

  	
   

  	
  Eurodollar

  Rate

  (Letters of

  Credit)

  	
   

  	
  Base Rate

  	
   

  
	
  1

  	
   

  	
  <1.50:1

  	
   

  	
  3.50

  	
  %

  	
  2.50

  	
  %

  
	
  2

  	
   

  	
  >1.50:1
  but <2.00:1

  	
   

  	
  3.75

  	
  %

  	
  2.75

  	
  %

  
	
  3

  	
   

  	
  >2.00:1

  	
   

  	
  4.00

  	
  %

  	
  3.00

  	
  %

  



 


Any increase or decrease in
the Applicable Rate resulting from a change in the Consolidated Leverage Ratio
shall become effective as of the first Business Day immediately following the
date a Compliance Certificate is delivered pursuant to Section 6.02(b);
provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then, upon the request of
the Required Lenders, Pricing Level 3 shall apply as of the first Business Day
after the date on which such Compliance Certificate was required to have been
delivered and in each case shall remain in effect until the date on which such
Compliance Certificate is delivered.


 


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).


 


2

















 


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


 


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


 


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


 


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


 


“Assignment and Assumption” means an
assignment and assumption entered into by a Lender and an Eligible 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 Capitalized Lease of any Person, the
capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in respect of any
Synthetic Lease Obligation, the capitalized amount of the remaining lease or
similar payments under the relevant lease or other applicable agreement or
instrument that would appear on a balance sheet of such Person prepared as of
such date in accordance with GAAP if such lease or other agreement or
instrument were accounted for as a Capitalized Lease and (c) all Synthetic
Debt of such Person.


 


“Audited Financial Statements” means
the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2009, and the
related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal year of the Borrower  and its
Subsidiaries, including the notes thereto.


 


“Availability Period” means the
period from and including the Closing Date to the earliest of (i) the
Maturity Date, (ii) the date of termination of the Commitments pursuant to
Section 2.06, and (iii) the date of termination of the
commitment of each Lender to make Revolving Credit Loans and of the obligation
of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.


 


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


 


“Base Rate” means for any day a
fluctuating rate per annum equal to the highest of (a) the Federal Funds
Rate plus 1/2 of 1%, (b) the rate of interest in effect for such
day as publicly announced from time to time by Bank of America as its “prime
rate,” and (c) the Eurodollar Rate plus 1.00%.  The “prime rate” is a rate set by Bank
of America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or


 


3

















 


below
such announced rate.  Any change in such prime
rate announced by Bank of America shall take effect at the opening of business
on the day specified in the public announcement of such change.


 


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


 


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


 


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


 


“Borrowing” means a Revolving Credit
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 state where the
Administrative Agent’s Office is located and, if such day relates to any
Eurodollar Rate Loan, means any such day that is also a London Banking Day.


 


“Capital Expenditures” means, with
respect to any Person for any period, any expenditure in respect of the
purchase or other acquisition of any fixed or capital asset (excluding normal
replacements and maintenance which are properly charged to current operations);
provided that Capital Expenditures for any period shall not include any
fixed or capital asset acquired during such period as part of a Permitted
Acquisition.  For purposes of this definition, the purchase price of equipment that is
purchased simultaneously with the trade-in of existing equipment or with
insurance or condemnation proceeds shall be included in Capital Expenditures
only to the extent of the gross amount by which such purchase price exceeds the
credit granted by the seller of such equipment for the equipment being traded
in at such time or the amount of such insurance or condemnation proceeds, as
the case may be.


 


“Capitalized Leases”
means all leases that have been or should be, in accordance with GAAP, recorded
as capitalized leases.


 


“Cash Collateralize” means to pledge
and deposit with or deliver to the Administrative Agent, for the benefit of the
Administrative Agent, L/C Issuers 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 Issuers or Swing Line Lender benefitting 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 Issuers or the Swing Line Lender (as
applicable). “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 any
of the following types of Investments, to the extent owned by the Borrower or
any of its Subsidiaries free and clear of all Liens (other than Liens created
under the Collateral Documents and
other Liens permitted hereunder):


 


4

















 


(a)           readily marketable obligations issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than 360 days from the
date of acquisition thereof; provided
that the full faith and credit of the United States of America is pledged in
support thereof;


 


(b)           time deposits with, or insured certificates of deposit
or bankers’ acceptances of, any commercial bank that (i) (A) is a
Lender or (B) is organized under the laws of the United States of America,
any state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the United
States of America, any state thereof or the District of Columbia, and is a
member of the Federal Reserve System, (ii) issues (or the parent of which
issues) commercial paper rated as described in clause (c) of this
definition and (iii) has combined capital and surplus of at least
$1,000,000,000, in each case with maturities of not more than 180 days from the date of acquisition
thereof;


 


(c)           commercial paper issued by any Person organized under
the laws of any state of the United States of America and rated at least “Prime-1”
(or the then equivalent grade) by Moody’s or at least “A-1” (or the
then equivalent grade) by S&P, in each case with maturities of not
more than 180 days from the date of acquisition thereof; and


 


(d)           Investments, classified in accordance with GAAP as
current assets of the Borrower or any of its Subsidiaries, in money market
investment programs registered under the Investment Company Act of 1940, which
are administered by financial institutions that have the highest rating
obtainable from either Moody’s or S&P, and the portfolios of which are
limited solely to Investments of the character, quality and maturity described
in clauses (a), (b) and (c) of this definition.


 


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


 


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


 


“CERCLA” means the
Comprehensive Environmental Response, Compensation and Liability Act of 1980.


 


“CERCLIS” means the Comprehensive Environmental
Response, Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.


 


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


 


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


 


5

















 


“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) other than the Permitted
Investors 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 30%
or more of the equity securities of the
Borrower  entitled to vote
for members of the board of directors or equivalent governing body of the Borrower
on a fully-diluted basis (and taking into account all such
securities that such “person” or “group” has the right to acquire
pursuant to any option right); provided, however, that any sale
by the Permitted Investors of the Equity Interests of the Borrower owned by the
Permitted Investors, legally or beneficially, as of the Closing Date shall not
result in a Change of Control (but any subsequent sale or sales by the
purchaser or purchasers thereof shall not be so exempted from constituting a
Change of Control); or


 


(b)           during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower  cease to
be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was approved
by individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by individuals referred
to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption
of office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group other than
a solicitation for the election of one or more directors by or on behalf of the
board of directors); or


 


(c)           the passage of thirty days from the date upon which any
Person or two or more Persons acting in concert shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the management
or policies of the Borrower, or
control over the equity securities of the
Borrower  entitled to vote
for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis
(and taking into account all such securities that such Person or Persons have
the right to acquire pursuant to any option right) representing 30% or more of the combined voting
power of such securities; or


 


(d)           a “change of control” or any comparable term
under, and as defined in, the Senior Notes Indenture (or any permitted
refinancing thereof) shall have occurred.


 


6

















 


“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.


 


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


 


“Collateral Documents” means,
collectively, the Security Agreement, the Intellectual Property Security
Agreement, the Mortgages, the Vessel Mortgages, each of the mortgages,
collateral assignments, supplements, security agreements, pledge agreements or
other similar agreements delivered to the Administrative Agent pursuant to Section 4.01
or Section 6.12, and each of the other agreements, instruments or
documents that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.


 


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


 


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


 


“Consolidated Adjusted
Capital Expenditures” means, as of any date of determination, an amount
equal to the aggregate Capital Expenditures made by the Borrower and its
Subsidiaries during the most recently completed Measurement Period minus (a) the
amount of such Capital Expenditures financed under purchase money or similar
equipment financings, including Capital Leases permitted hereunder and (b) to
the extent any pre-commitments to make payments have been obtained by the
Borrower or its Subsidiaries for such expenditures as of such date, an amount
equal to 100% of the aggregate Capital Expenditures made by the Borrower and
its Subsidiaries during the most recently completed Measurement Period for
Multi-Client Data associated with such pre-commitments .


 


“Consolidated Adjusted
EBITDA” means, as of any date of determination, an amount equal to (a) Consolidated
EBITDA of the Borrower and its Subsidiaries for the most recently completed
Measurement Period minus (b) to the extent included in calculating
Consolidated EBITDA, amortization of Multi-Client Data of the Borrower and its
Subsidiaries for the most recently completed Measurement Period.


 


“Consolidated EBITDA” means, at any date of determination, an
amount equal to Consolidated Net Income of the Borrower  and
its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: 
(i) Consolidated Interest Charges, (ii) Federal, state, local
and foreign income and franchise taxes, (iii) depreciation and
amortization expense, and


 


7

















 


charges
relating to impairment of goodwill or other intangible assets,  (iv) any fees, costs and expenses
related to the Transaction or any Permitted Acquisition, (v) payments made
pursuant to earn-out provisions of agreements entered into in connection with
any Permitted Acquisition, (vi) all other extraordinary, unusual or non-recurring
expenses or charges reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period, and (vii) stock-based
compensation expenses (in each case of or by the Borrower and its Subsidiaries
for such Measurement Period) and minus (b) the following to the
extent included in calculating such Consolidated Net Income:  (i) Federal, state, local and foreign
income and franchise tax credits and (ii) all extraordinary, unusual or
non-recurring gains increasing Consolidated Net Income which do not represent a
cash item in such period or any future period (in each case of or by the
Borrower  and its Subsidiaries for such
Measurement Period).


 


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


 


“Consolidated Interest Charges” means, for any Measurement
Period, the sum of (a) all interest, premium payments, debt discount,
fees, charges and related expenses in connection with borrowed money (including
capitalized interest and interest on convertible debt instruments prior to
conversion thereof to capital stock or other ownership or profits interest in
the applicable Person) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP
(excluding, however, non-cash charges and expenses for the fiscal quarter ending
June 30, 2010, in connection with the repayment of the Existing Credit
Agreements), (b) all interest paid or payable with respect to discontinued
operations and (c) the portion of rent expense under Capitalized Leases
that is treated as interest in accordance with GAAP, in each case, of or by the
Borrower  and its Subsidiaries on a consolidated
basis for the most recently completed Measurement Period.


 


“Consolidated Interest Coverage Ratio” means, as of any date
of determination, the ratio of (a) (i) Consolidated EBITDA minus (ii) Consolidated
Adjusted Capital Expenditures minus (iii) cash taxes of the Borrower and
its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period minus (iv) dividends made by the Borrower for such
Measurement Period to (b) Consolidated
Interest Charges of or by the Borrower  and its
Subsidiaries for the most recently completed Measurement Period.


 


8

















 


“Consolidated Leverage Ratio” means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness as of such
date to  (b) Consolidated
Adjusted EBITDA of the Borrower  and its
Subsidiaries for the most recently completed Measurement Period.


 


“Consolidated Net Income” means, at any date of
determination, the net income (or loss) of the Borrower  and
its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period; provided that Consolidated Net Income shall exclude (a) extraordinary
gains and extraordinary losses for such Measurement Period, (b) the net
income of any Subsidiary during such Measurement Period to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
of such income is not permitted by operation of the terms of its Organization
Documents or any agreement, instrument or Law applicable to such Subsidiary
during such Measurement Period, except that the Borrower’s  equity
in any net loss of any such Subsidiary for such Measurement Period shall be
included in determining Consolidated Net Income, and (c) any income (or
loss) for such Measurement Period of any Person if such Person is not a
Subsidiary, except that the Borrower’s equity in the net income of any such
Person for such Measurement Period shall be included in Consolidated Net Income
up to the aggregate amount of cash actually distributed by such Person during
such Measurement Period to the Borrower  or a
Subsidiary as a dividend or other distribution (and in the case of a dividend
or other distribution to a Subsidiary, such Subsidiary is not precluded from
further distributing such amount to the Borrower as described in clause (b) of
this proviso).


 


“Consolidated Senior
Secured Indebtedness” means all Consolidated Funded Indebtedness that is
secured by a Lien on any Property.


 


“Consolidated Senior Secured Leverage Ratio” means, as of any
date of determination, the ratio of (a) Consolidated Senior Secured Indebtedness
as of such date to  (b) Consolidated Adjusted EBITDA of the Borrower  and its Subsidiaries for the most recently completed
Measurement 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.


 


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


 


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


 


9

















 


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


 


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


 


“Defaulting Lender” means, subject
to Section 2.16(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 three Business Days of the date required to be funded by it
hereunder, unless such obligation is the subject of a good faith dispute, (b) has
notified the Borrower, 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 under other
agreements in which it commits to extend credit, unless such obligations are
the subject of a good faith dispute, (c) has failed, within three Business
Days after request by the Administrative Agent, to confirm in a manner
satisfactory to the Administrative Agent that it will comply with its funding
obligations, or (d) 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; provided that a Lender shall not be a
Defaulting Lender solely by virtue of the ownership or acquisition of any
equity interest in that Lender or any direct or indirect parent company thereof
by a Governmental Authority.


 


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


 


“Disqualified Stock”
means any Equity Interest that, by its terms (or by the terms of any security
into which it is convertible, or for which it is exchangeable, in each case, at
the option of the holder of such Equity Interest), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder of such
Equity Interest, in whole or in part, prior to the date that is one year after
the Maturity Date, other than typical redemption rights associated with a
change of control or certain dispositions of assets.


 


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


 


10
















 


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


 


“Eligible Assignee” means any Lender,
Affiliate of a Lender, Approved Fund of a Lender, or any commercial bank
organized under the laws of the United States or any of the countries parties
to the Organization for Economic Cooperation and Development or any political
subdivision of any thereof which has primary capital (or its equivalent) of not
less than $500,000,000.


 


“EMU” means the
economic and monetary union in accordance with the Treaty of Rome 1957, as
amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.


 


“EMU Legislation”
means the legislative measures of the European Council for the introduction of,
changeover to or operation of a single or unified European currency.


 


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


 


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


 


“Environmental Permit” means any permit, approval,
identification number, license or other authorization required under any Environmental
Law.


 


“Equity Interests” means,
with respect to any Person, all of the shares of capital stock of (or other
ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of
capital stock of (or other ownership or profit interests in) such Person, all
of the securities (other than convertible debt securities prior to any
conversion thereof) 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 


 


11

















 


therein),
whether voting or nonvoting, and whether or not such shares, warrants, options,
rights or other interests are outstanding on any date of determination.


 


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


 


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


 


“ERISA Event” means (a) a
Reportable Event with respect to a Pension Plan; (b) 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.


 


“Euro” and “EUR”
mean the lawful currency of the Participating Member States introduced in accordance
with the EMU Legislation.


 


“Eurodollar Rate” means:


 


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


 


(b)           for any interest calculation with
respect to a Base Rate Loan on any date, the rate per annum equal to (i) BBA
LIBOR, at approximately 11:00 a.m., London time determined two 


 


12

















 


London Banking Days prior
to such date for Dollar deposits being delivered in the London interbank market
for a term of one month commencing that day or (ii) if such published rate
is not available at such time for any reason, the rate per annum determined by
the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the date of determination in same day funds in the approximate
amount of the Base Rate Loan being made or maintained and with a term equal to
one month would be offered by Bank of America’s London Branch to major banks in
the London interbank Eurodollar market at their request at the date and time of
determination.


 


“Eurodollar Rate Loan” means a
Revolving Credit Loan that bears interest at a rate based on clause (a) of
the definition of Eurodollar Rate.


 


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


 


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, any L/C Issuer or
any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) taxes imposed on or measured by
its overall net income (however denominated), and franchise taxes imposed on it
(in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable Lending Office is located, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located, (c) any backup withholding
tax that is required by the Code to be withheld from amounts payable to a
Lender that has failed to comply with clause (A) of Section 3.01(e)(ii),
and (d) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 10.13), any United
States  withholding tax that (i) is
required to be imposed on amounts payable to such Foreign Lender pursuant to
the Laws in force at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or (ii) is attributable to such Foreign
Lender’s failure or inability (other than as a result of a Change in Law) to
comply with clause (B) of Section 3.01(e)(ii), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 3.01(a)(i) or (ii).


 


“Existing Credit Agreements” means, collectively, the First
Lien Credit Agreement dated as of January 16, 2008, among the Borrower,
Credit Suisse as administrative and collateral agent, and the lenders party
thereto, the Second Lien Credit Agreement dated as of January 16, 2008,
among the Borrower, Credit Suisse as administrative and collateral agent, and
the lenders party thereto, and Construction Loan Agreement  dated
as of February 13, 2008, between the Borrower and Citibank, N.A.


 


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


 


“Federal Funds Rate” means, for any
day, the rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal 


 


13

















 


Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Business Day
as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds
Rate for such day shall be the average rate (rounded upward, if necessary, to a
whole multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.


 


“Fee Letter” means the letter
agreement, dated February 11, 2010, among the Borrower, the Administrative
Agent and the Arranger.


 


“Foreign Government
Scheme or Arrangement” has the meaning specified in Section 5.12(d).


 


“Foreign Lender” means any Lender
that is organized under the Laws of a jurisdiction other than that in which the
Borrower is resident for tax purposes (including such a Lender when acting in
the capacity of an 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 Plan” has the meaning specified in Section 5.12(d).


 


“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 Issuers, 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 


 


14

















 


government
(including any supra-national bodies such as the European Union or the European
Central Bank).


 


“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), provided that if such Indebtedness
or other obligation is not assumed by, and is non-recourse to, such Person, the
amount of such Guarantee will be limited to the lesser of the amount of
Indebtedness or other obligation and the fair market value of the assets upon
which such Liens were granted.  The
amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
the guaranteeing Person in good faith. 
The term “Guarantee” as a verb has a corresponding meaning.


 


“Guarantors” means, collectively,
the Subsidiaries of the Borrower  party to the Guaranty as of the date
hereof, and each other Subsidiary of the Borrower  that
shall be required to execute and deliver a guaranty or guaranty supplement
pursuant to Section 6.12.


 


“Guaranty” means, collectively, the
Guaranty made by the Guarantors
in favor of the Secured Parties, together with each other guaranty and guaranty
supplement delivered pursuant to Section 6.12.


 


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


 


“Hedge Bank” means any Person that, at the time it
enters into a Swap Contract permitted under Article VI or VII,
is a Lender or an Affiliate of a Lender, in its capacity as a party to such
Swap Contract.


 


15

















 


“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)           the maximum amount of all direct or
contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
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 and not past due for more than 90 days after the due date  for such trade account );


 


(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, provided that if such
indebtedness is not assumed by, and is non-recourse to, such Person, the amount
of such indebtedness that constitutes “Indebtedness” hereunder will be limited
to the lesser of the amount of such indebtedness and the fair market value of
the assets upon which such Liens were granted;


 


(f)            all Attributable Indebtedness in
respect of Capitalized Leases and Synthetic Lease Obligations of such Person
and all Synthetic Debt of such Person;


 


(g)           all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any Disqualified
Stock 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.


 


“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.


 


16

















 


“Intellectual Property Security Agreement” has the
meaning specified in Section 4.01(a)(v).


 


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


 


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


 


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


 


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


 


(c)           no Interest Period 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 Equity
Interests of another Person, (b) a loan, advance or capital contribution
to, Guarantee or assumption of debt of, or purchase or other acquisition of any
other debt or interest in, another Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit or all or a substantial part of the business of, such Person.  For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment (other than decreases resulting from the receipt of any redemption,
repayment or other retirement of such Investment).


 


“IPO” means the
initial public offering of the Equity Interests of the Borrower pursuant to an effective registration statement under
the Securities Act of 1933.


 


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


 


“IRS” means the United States
Internal Revenue Service.


 


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


 


17

















 


“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 an L/C Issuer
and the Borrower (or any Subsidiary) or in favor of such 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 Revolving Credit
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 each of Bank of
America in its capacity as issuer of Letters of Credit hereunder and any other
Revolving Credit Lender selected by the Borrower that agrees to become an L/C
Issuer hereunder, or any successor issuer or issuers 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, such Letter
of Credit shall be deemed to be “outstanding” in the amount so remaining
available to be drawn.


 


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


 


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


 


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


 


18

















 


“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 applicable 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(h).


 


“Letter of Credit Sublimit” means an
amount equal to $30,000,000.  The Letter of Credit Sublimit is part of, and
not in addition to, the Aggregate
Commitments.


 


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


 


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


 


“Loan Documents” means,
collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty,
(d) the Collateral Documents, (e) the Fee Letter, (f) each
Issuer Document, and (g) any agreement creating or perfecting rights in
Cash Collateral pursuant to the provisions of Section 2.15 of this
Agreement.


 


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


 


“London Banking Day”
means any day on which dealings in Dollar deposits are conducted by and between
banks in the London interbank Eurodollar market.


 


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


 


“Material Contract”
means, with respect to any Person, each contract to which such Person is a
party involving aggregate consideration payable to or by such Person of $5,000,000
or more in any year or otherwise
material to the business, condition (financial or otherwise), operations,
performance or properties of such Person.


 


19

















 


“Material Foreign
Subsidiary” means any Subsidiary organized under the laws of any political
subdivision other than the United States that is a direct Wholly Owned
Subsidiary of the Borrower or of a Subsidiary that is organized under the laws
of any jurisdiction within the United States, and which (a) had assets
having an aggregate book value, as of the end of the fiscal year most recently
ended, exceeding 5% of the consolidated total assets of the Borrower and its
Subsidiaries or (b) had Consolidated EBITDA exceeding 5% of the
Consolidated EBITDA of the Borrower and its Subsidiaries for such fiscal year.


 


“Maturity Date” means April 30,
2013; provided, however, that if such date is not a Business Day,
the Maturity Date shall be the next preceding Business Day.


 


“Measurement Period”
means, at any date of determination, the most recently completed four fiscal
quarters of the Borrower.


 


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


 


“Mortgage” has the meaning specified in Section 4.01(a)(iv).


 


“Mortgage Policy” has the
meaning specified in Section 4.01(a)(iv)(B).


 


“Multi-Client Data”
means seismic data surveys acquired by the Borrower or its Subsidiaries for its
multi-client seismic data library.


 


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


 


“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 the
Borrower in favor of a Lender evidencing Revolving Credit Loans or Swing Line
Loans, as the case may be, made by such Lender, substantially in the form of Exhibit C.


 


“NPL” means the National Priorities List
under CERCLA.


 


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


 


20
















 


“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 (a) with
respect to Revolving Credit 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 Revolving Credit Loans and Swing
Line Loans, as the case may be, occurring on such date; and (b) with
respect to any L/C Obligations on any date, the Dollar Equivalent amount of the
aggregate outstanding amount of such L/C Obligations on such date after giving
effect to any L/C Credit Extension occurring on such date and any other changes
in the aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements by the Borrower of Unreimbursed Amounts.


 


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


 


“Participating Member
State” means each state so described in any EMU Legislation.


 


“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 Acquisition”
means any Investment permitted by Section 7.03(g).


 


“Permitted Encumbrances”
has the meaning specified in the Mortgages.


 


21

















 


“Permitted Investors”
means Kelso Investment Associates VII, L.P., KEP VI, LLC, and their Affiliates
(other than any portfolio company).


 


“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.


 


“Pledged Debt” means all Investments (as defined in
the Security Agreement) that constitute Collateral and are required to be
delivered pursuant to the terms of the Security Agreement.


 


“Pledged Securities” has the
meaning specified in Section 1.3 of the Security Agreement.


 


“Property” means any
right or interest in or to property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible, including, without
limitation, Equity Interests.


 


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


 


“Register” has the meaning specified
in Section 10.06(c).


 


“Related Documents”
means the documents effecting the IPO and the Senior Notes Documents.


 


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


 


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


 


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


 


“Required Lenders”
means, as of any date of determination, Lenders holding more than 50%  of the
sum of the (a) Total Outstandings (with the aggregate amount of each 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) and (b) aggregate unused Commitments; provided that the
unused Commitment of, and the portion of the Total Outstandings held or 


 


22

















 


deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


 


“Responsible Officer” means the
chief executive officer, president, chief financial officer, treasurer,
assistant treasurer or controller of a Loan Party, and solely for purposes of
the delivery of incumbency certificates pursuant to Section 4.01,
the secretary or any assistant secretary of a Loan Party and any other officer of the applicable Loan
Party so designated by any of the foregoing officers in a notice to the
Administrative Agent.  Any
document delivered hereunder that is signed by a Responsible Officer 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 Person or any
of its Subsidiaries, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such capital stock or other Equity Interest, or on account
of any return of capital to any Person’s stockholders, partners or members (or
the equivalent of any thereof), or any option, warrant or other right to
acquire any such dividend or other distribution or payment.


 


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


 


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


 


“Revolving Credit Loan” has the
meaning specified in Section 2.01.


 


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


 


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


 


“Same Day Funds”
means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent or an L/C Issuer, as the case may be, to
be customary in the place of disbursement or 


 


23

















 


payment
for the settlement of international banking transactions in the relevant
Alternative Currency.


 


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


 


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


 


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


 


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


 


“Security Agreement” has the
meaning specified in Section 4.01(a)(iii).


 


“Security Agreement Supplement” means any
supplement to the Security Agreement in the form of Annex I to the Security
Agreement.


 


“Senior Notes” means the
10.5% senior notes of the Borrower due 2017 in an aggregate principal amount of
$200,000,000 issued pursuant to the Senior Notes Documents.


 


“Senior Notes Documents”
means the Senior Notes Indenture, the Senior Notes and all other agreements,
instruments and other documents pursuant to which the Senior Notes have been or
will be issued or otherwise setting forth the terms of the Senior Notes.


 


“Senior Notes Indenture”
means the  Indenture dated as of April 27, 2010, in respect of the
Senior Notes.


 


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


 


24

















 


“Spot Rate” for a
currency means the rate determined by the Administrative Agent or the
applicable L/C Issuer, as applicable, to be the rate quoted by the Person
acting in such capacity as the spot rate for the purchase by such Person of
such currency with another currency through its principal foreign exchange trading
office at approximately 10:00 a.m. on the date two Business Days prior to
the date as of which the foreign exchange computation is made; provided  that the Administrative Agent or such L/C Issuer may obtain
such spot rate from another financial institution designated by the
Administrative Agent or such L/C Issuer if the Person acting in such capacity
does not have as of the date of determination a spot buying rate for any such
currency; and provided  further that such L/C Issuer may use such
spot rate quoted on the date as of which the foreign exchange computation is
made in the case of any Letter of Credit denominated in an Alternative
Currency.


 


“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
Borrower.


 


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


 


“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).


 


25

















 


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


 


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


 


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


 


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


 


“Swing Line Sublimit” means an
amount equal to the lesser of (a) $2,000,000
and (b) the Aggregate Commitments.  The Swing Line Sublimit is part of, and not
in addition to, the Aggregate
Commitments.


 


“Synthetic Debt” means, with respect
to any Person as of any date of determination thereof, all obligations of such
Person in respect of transactions entered into by such Person that are intended
to function primarily as a borrowing of funds (including any minority interest transactions that function primarily as
a borrowing) but are not otherwise included in the definition of “Indebtedness”
or as a liability on the consolidated balance sheet of such Person and its
Subsidiaries in accordance with GAAP.


 


“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 (including sale and leaseback
transactions), in each case, creating obligations that do not appear on the
balance sheet of such Person but which, upon the application of any Debtor
Relief Laws to 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 (including backup
withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto.


 


“Threshold Amount” means $5,000,000.


 


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


 


“Transaction” means, collectively, (a) the entering into
by the Loan Parties and their applicable Subsidiaries of the Loan Documents and
Related Documents to which they are or are intended to be a party, (b) the
refinancing of certain outstanding Indebtedness of the Borrower and its
Subsidiaries and the termination of all commitments with respect thereto, and (c) the
payment of the fees and expenses incurred in connection with the consummation
of the foregoing.


 


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


 


26

















 


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


 


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


 


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


 


“U.S. Loan Party”
means any Loan Party that is organized under the laws of one of the states of
the United States of America and that is not a CFC.


 


“Vessel Mortgage” has
the meaning specified in Section 4.01(a)(vi).


 


“Wholly Owned Subsidiary”
means as to any Person, any other Person all of the Equity Interests of which
(other than, in the case of a foreign Subsidiary, directors’ qualifying shares
or shares required by applicable law to be held by a Person other than the
Borrower or a Subsidiary) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.


 


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


 


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


 


27

















 


(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 Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrower shall negotiate
in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance with GAAP prior to
such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as 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 Borrower  and
its Subsidiaries or to the determination of any amount for the Borrower  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 Borrower  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 Central time
(daylight or standard, as applicable).


 


28

















 


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


 


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


 


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


 


1.08        Additional Alternative Currencies.  (a) The
Borrower may from time to time request that Letters of Credit be issued in a
currency other than those specifically listed in the definition of “Alternative
Currency”; provided that such requested currency is a lawful currency
(other than Dollars) that is readily available and freely transferable and
convertible into Dollars.  Any such
request shall be subject to the approval of the Administrative Agent and the L/C
Issuers.


 


(b)           Any such request shall be made to the
Administrative Agent not later than 11:00 a.m., 10 Business Days prior to
the date of the desired L/C Credit Extension (or such other time or date as may
be agreed by the Administrative Agent and the L/C Issuers, in their sole
discretion).  The Administrative Agent
shall promptly notify the L/C Issuers of any such request.  Each L/C Issuer shall notify the
Administrative Agent, not later than 11:00 a.m., five Business Days after
receipt of such request whether it consents, in its sole discretion, to the
issuance of Letters of Credit in such requested currency.


 


(c)           Any failure by an L/C Issuer to
respond to such request within the time period specified in the preceding
sentence shall be deemed to be a refusal by such L/C Issuer to permit Letters
of Credit to be issued in such requested currency.  If the Administrative Agent and the L/C
Issuers consent to the issuance of Letters of Credit in such requested
currency, the Administrative Agent shall so notify the Borrower and such
currency shall thereupon be deemed 


 


29

















 


for all purposes to be an
Alternative Currency hereunder for purposes of any Letter of Credit
issuances.  If the Administrative Agent
shall fail to obtain consent to any request for an additional currency under
this Section 1.08, the Administrative Agent shall promptly so
notify the Borrower.


 


1.09        Change of Currency.  (a) Each
obligation of the Borrower to make a payment denominated in the national
currency unit of any member state of the European Union that adopts the Euro as
its lawful currency after the date hereof shall be redenominated into Euro at
the time of such adoption (in accordance with the EMU Legislation).  If, in relation to the currency of any such
member state, the basis of accrual of interest expressed in this Agreement in
respect of that currency shall be inconsistent with any convention or practice
in the London interbank market for the basis of accrual of interest in respect of
the Euro, such expressed basis shall be replaced by such convention or practice
with effect from the date on which such member state adopts the Euro as its
lawful currency.


 


(b)           Each provision of this Agreement
shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any
relevant market conventions or practices relating to the Euro.


 


(c)           Each provision of this Agreement also
shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time specify to be appropriate to reflect
a change in currency of any other country and any relevant market conventions or
practices relating to the change in currency.


 


ARTICLE
II

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01        The Loans.  Subject to
the terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Revolving Credit Loan”) to the Borrower from
time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such
Lender’s Commitment; provided, however, that after giving effect to any Revolving
Credit Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving
Credit 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 Borrower may borrow under this Section 2.01,
prepay under Section 2.05, and reborrow under this Section 2.01.  Revolving Credit Loans may be Base Rate Loans
or Eurodollar Rate Loans, as further provided herein.


 


2.02        Borrowings, Conversions and
Continuations of Loans.  (a) Each Revolving Credit
Borrowing, each conversion of Revolving Credit Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given by
telephone.  Each such notice must be
received by the Administrative Agent not later than 10:00 a.m. (i) three
Business Days prior to 


 


30
















 


the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Revolving Credit Loan Notice,
appropriately completed and signed by a Responsible Officer of the
Borrower.  Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000  or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in
a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof.  Each Revolving Credit Loan
Notice  (whether telephonic or written)
shall specify (i) whether the Borrower is requesting a Revolving Credit
Borrowing, a conversion of Revolving Credit Loans from one Type to the other,
or a continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Revolving Credit Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of
Loan in a Revolving Credit Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the Revolving
Credit Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Revolving
Credit Loan Notice, but fails to specify an Interest Period, it will be deemed
to have specified an Interest Period of one month.  Notwithstanding anything to the contrary
herein, a Swing Line Loan may not be converted to a Eurodollar Rate Loan.


 


(b)                                 Following receipt of a Revolving Credit
Loan Notice, the Administrative Agent shall promptly notify each Lender of the
amount of its Applicable Percentage of the Revolving Credit Loans, and if no
timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in Section 2.02(a).  In the case of a Revolving Credit Borrowing,
each Lender shall make the amount of its Loan available to the Administrative
Agent in Same Day Funds at the Administrative Agent’s Office not later than 12:00
noon on the Business Day specified in the applicable Revolving Credit Loan
Notice.  Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date a Revolving
Credit Loan Notice with respect to a Revolving Credit Borrowing is given by the
Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Revolving Credit Borrowing, first, shall be applied to the payment in
full of any such L/C Borrowings, and second, shall be made available to
the Borrower as provided above.


 


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


 


31

















 


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


 


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


 


(e)                                  After giving effect to all Revolving
Credit Borrowings, all conversions of Revolving Credit Loans from one Type to
the other, and all continuations of Revolving Credit Loans as the same Type,
there shall not be more than 7 Interest Periods in effect with respect to
Revolving Credit Loans.


 


2.03                        Letters of Credit.  (a) The
Letter of Credit Commitment.  (i) Subject
to the terms and conditions set forth herein, (A) each 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 denominated in Dollars or in one or more Alternative Currencies for the
account of the Borrower or its
Subsidiaries, and to amend or
extend Letters of Credit previously issued by it, in accordance with Section 2.03(b),
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 Borrower or its Subsidiaries
and any drawings thereunder; provided that after giving effect to any
L/C Credit Extension with respect to any Letter of Credit, (x) the Total
Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate
Outstanding Amount of the Revolving Credit 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 Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence.  Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Borrower
may, during the foregoing period, obtain Letters of Credit to replace Letters
of Credit that have expired or that have been drawn upon and reimbursed.


 


(ii)                                  No L/C Issuer shall 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 the requested Letter
of Credit would occur after the Letter of Credit Expiration Date, unless all
the Lenders have approved such expiry date.


 


32

















 


(iii)                               No L/C Issuer shall 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 such L/C Issuer from issuing the Letter of Credit, or any Law
applicable to such L/C Issuer or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over
such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from,
the issuance of letters of credit generally or the Letter of Credit in particular
or shall impose upon such L/C Issuer with respect to the Letter of Credit any
restriction, reserve or capital requirement (for which such L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon such L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which such L/C Issuer in good faith
deems material to it;


 


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


 


(C)                                except as otherwise agreed by the
Administrative Agent and such L/C Issuer, the Letter of Credit is in an initial
stated amount less than $50,000;


 


(D)                               except as otherwise agreed by the
Administrative Agent and such L/C Issuer, the Letter of Credit is to be
denominated in a currency other than Dollars or an Alternative Currency; or


 


(E)                                 any Lender is at that time a Defaulting
Lender, unless such L/C Issuer has entered into arrangements, including the
delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole
discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s
actual or potential Fronting Exposure (after giving effect to Section 2.16(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 such L/C Issuer has actual or potential Fronting
Exposure, as it may elect in its sole discretion; or


 


(F)                                 the Letter of Credit contains any
provisions for automatic reinstatement of the stated amount after any drawing
thereunder.


 


(iv)                              No L/C Issuer shall amend any Letter of
Credit if such L/C Issuer would not be permitted at such time to issue the
Letter of Credit in its amended form under the terms hereof.


 


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


 


33

















 


(vi)                              Each 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 each 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 such L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included such
L/C Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuers.


 


(b)                                 Procedures for Issuance and Amendment of
Letters of Credit; Auto-Extension
Letters of Credit.  (i) Each Letter of Credit
shall be issued or amended, as the case may be, upon the request of the
Borrower delivered to the applicable L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the
Borrower.  Such Letter of Credit Application
must be received by the applicable L/C Issuer and the Administrative Agent not
later than 10:00 a.m. at least two Business Days (or such later date and
time as the Administrative Agent and the applicable 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 applicable 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 such 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 applicable L/C Issuer (1) the
Letter of Credit to be amended; (2) the proposed date of amendment thereof
(which shall be a Business Day); (3) the nature of the proposed amendment;
and (4) such other matters as such L/C Issuer may require.  Additionally, the Borrower shall furnish to
the applicable 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 such L/C Issuer or the
Administrative Agent may require.


 


(ii)                                  Promptly after receipt of any Letter of
Credit Application, the applicable L/C Issuer will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has received a copy of such Letter of Credit Application from the Borrower and,
if not, such L/C Issuer will provide the Administrative Agent with a copy
thereof.  Unless the applicable 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, such L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of the
Borrower (or the applicable Subsidiary)
or enter into the applicable amendment, as the case may be, in each case in
accordance with such L/C Issuer’s usual and customary business practices.  Immediately upon the issuance 


 


34

















 


of each Letter of Credit, each Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
applicable 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 Borrower so requests in any
applicable Letter of Credit Application, the applicable 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 such L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period
to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the applicable L/C
Issuer, the Borrower shall not be required to make a specific request to such 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 applicable 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 such
L/C Issuer shall not permit any such extension if (A) such 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 have elected not to permit such
extension or (2) from the Administrative Agent, any Lender or the Borrower
that one or more of the applicable conditions specified in Section 4.02
is not then satisfied, and in each such case directing such 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 applicable L/C Issuer will
also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.


 


(c)                                  Drawings and Reimbursements; Funding of
Participations.  (i) Upon receipt from the beneficiary of
any Letter of Credit of any notice of a drawing under such Letter of Credit,
the applicable  L/C Issuer shall notify
the Borrower and the Administrative Agent thereof.  In the case of a Letter of Credit denominated
in an Alternative Currency, the Borrower shall reimburse the applicable L/C
Issuer in such Alternative Currency, unless (A) such L/C Issuer (at its
option) shall have specified in such notice that it will require reimbursement
in Dollars, or (B) in the absence of any such requirement for
reimbursement in Dollars, the Borrower shall have notified such L/C Issuer
promptly following receipt of the notice of drawing that the Borrower will
reimburse such L/C Issuer in Dollars.  In
the case of any such reimbursement in Dollars of a drawing under a Letter of
Credit denominated in an Alternative Currency, the applicable L/C Issuer shall
notify the Borrower of the Dollar Equivalent of the amount of the drawing
promptly following the determination thereof. 
Not later than 10:00 a.m. on the date of any payment by 


 


35

















 


any L/C Issuer under a
Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the
date of any payment by any L/C Issuer under a Letter of Credit to be reimbursed
in an Alternative Currency (each such date, an “Honor Date”), the Borrower shall
reimburse the applicable L/C Issuer through the Administrative Agent in an
amount equal to the amount of such drawing and in the applicable currency.  If the Borrower fails to so reimburse such L/C
Issuer by such time, the Administrative Agent shall promptly notify each Lender
of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars
in the amount of the Dollar Equivalent thereof in the case of a Letter of
Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the
amount of such Lender’s Applicable Percentage thereof.  In such event, the Borrower shall be deemed
to have requested a Revolving Credit 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 Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Revolving Credit Loan Notice).  Any notice given by an 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 (and the
Administrative Agent may apply Cash Collateral provided for this purpose) for
the account of the applicable L/C Issuer, in Dollars, at the Administrative
Agent’s Office in an amount equal to its Applicable Percentage of the
Unreimbursed Amount not later than 12:00 noon 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 Loan to the Borrower in such
amount.  The Administrative Agent shall
remit the funds so received to the applicable L/C Issuer.


 


(iii)                               With respect to any Unreimbursed Amount
that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans
because the conditions set forth in Section 4.02 cannot be
satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the applicable 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 such 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 Revolving
Credit 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 applicable L/C Issuer.


 


(v)                                 Each Lender’s obligation to make
Revolving Credit Loans or L/C Advances to reimburse the respective L/C Issuers
for amounts drawn under Letters of 


 


36

















 


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 any L/C Issuer, the Borrower
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrower of a Revolving Credit Loan Notice ).  No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Borrower to reimburse the
applicable L/C Issuer for the amount of any payment made by such 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
applicable 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, such 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 such L/C Issuer at a
rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by such L/C Issuer in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees
customarily charged by such 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 Revolving Credit Loan included in the relevant Borrowing or L/C
Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the applicable L/C Issuer
submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this Section 2.03(c)(vi) shall be
conclusive absent manifest error.


 


(d)                                 Repayment of Participations.  (i) At
any time after the applicable 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 such L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash Collateral
applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Percentage thereof in the same funds
as those received by the Administrative Agent.


 


(ii)                                  If any payment received by the
Administrative Agent for the account of an 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 applicable L/C Issuer
in its discretion), each Lender shall pay to the Administrative Agent for the
account of the applicable 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 


 


37

















 


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 Borrower to reimburse the respective L/C Issuer
for each drawing under each Letter of Credit issued by it and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances, including the following:


 


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


 


(ii)                                  the existence of any claim, counterclaim,
setoff, defense or other right that the Borrower or any Subsidiary may have at
any time against any beneficiary or any transferee of such Letter of Credit (or
any Person for whom any such beneficiary or any such transferee may be acting),
such 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 such 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
such L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any arising
in connection with any proceeding under any Debtor Relief Law;


 


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


 


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


 


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


 


38

















 


(f)                                    Role of L/C Issuer. 
Each Lender and the Borrower agree that, in paying any drawing under a
Letter of Credit, the applicable 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 any L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of an
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 Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided, however, that this assumption is
not intended to, and shall not, preclude the Borrower’s pursuing such rights
and remedies as it may have against the beneficiary or transferee at law or
under any other agreement.  None of any L/C
Issuer, the Administrative Agent, any of their respective Related Parties nor
any correspondent, participant or assignee of an L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however,
that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the applicable L/C Issuer, and such L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower proves were caused by such L/C Issuer’s willful misconduct
or gross negligence or such 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, an 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
applicable 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 applicable L/C Issuer and the
Borrower when a Letter of Credit is issued, the rules of the ISP shall
apply to each Letter of Credit.


 


(h)                                 Letter of Credit Fees. 
The Borrower 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 Dollar Equivalent of 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 applicable L/C Issuer
pursuant to this Section 2.03 shall be payable, to the maximum
extent permitted by applicable Law, to the other Lenders in accordance with the
upward adjustments in their respective Applicable Percentages allocable to such
Letter of Credit pursuant to Section 2.16(a)(iv), with the balance
of such fee, if any, payable to the applicable L/C Issuer for its own account.  For purposes of computing the daily amount
available to be 


 


39

















 


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.  The Borrower
shall pay directly to the applicable L/C Issuer for its own account a fronting
fee with respect to each Letter of Credit, at the rate per annum specified in
the Fee Letter, computed on the Dollar Equivalent of the daily amount available
to be drawn under such Letter of Credit on a quarterly basis in arrears.  Such fronting fee shall be due and payable on
the 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 Borrower shall pay directly
to the applicable L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of such 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 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 Borrower shall be obligated to reimburse the applicable L/C Issuer
hereunder for any and all drawings under such Letter of Credit.  The Borrower hereby acknowledges that the
issuance of Letters of Credit for the account of Subsidiaries inures to the
benefit of the Borrower, and that the Borrower’s business derives substantial
benefits from the businesses of such Subsidiaries.


 


2.04                        Swing Line Loans.  (a) The
Swing Line.  Subject to the terms and
conditions set forth herein, the Swing Line Lender may, in its sole discretion,
in reliance upon the agreements of the other Lenders set forth in this Section 2.04,
make loans (each such loan, a “Swing Line Loan”) to the Borrower from
time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated
with the Applicable Percentage of the Outstanding Amount of Revolving Credit
Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed
the amount of such Lender’s 


 


40
















 


Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total
Outstandings shall not exceed the Aggregate Commitments at such time, and (ii) the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender at such
time, plus such Lender’s Applicable Percentage of the Outstanding Amount
of all L/C Obligations at such time, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans at such time shall
not exceed such Lender’s Commitment, and provided  further that
the Borrower shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan.  Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section 2.05,
and reborrow under this Section 2.04.  Each Swing Line Loan shall bear interest only
at a rate based on the Base Rate. 
Immediately upon the making of a Swing Line Loan, each 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 shall be made upon the Borrower’s irrevocable
notice to the Swing Line Lender and the Administrative Agent, which may be
given by telephone.  Each such notice
must be received by the Swing Line Lender and the Administrative Agent not
later than 12:00 noon on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall
be a Business Day.  Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower.  Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof.  Unless
the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to 1:00 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 2:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing Line
Lender in Same Day Funds.


 


(c)                                  Refinancing of Swing Line Loans.  (i) The
Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line
Lender to so request on its behalf), that each Lender make a Base Rate 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
Revolving Credit 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 


 


41

















 


the Borrower with a copy
of the applicable Revolving Credit 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 Revolving Credit Loan Notice available to the Administrative
Agent in Same Day 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
noon on the day specified in such Revolving Credit 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 Loan to the Borrower in such
amount.  The Administrative Agent shall
remit the funds so received to the Swing Line Lender.


 


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


 


42

















 


(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 Borrower
for interest on the Swing Line Loans. 
Until each Lender funds its Base Rate 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 Borrower 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) Optional.  (i) The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay
Revolving Credit Loans in whole or in part without premium or penalty; provided
that (A) such notice must be received by the Administrative Agent not
later than 10:00 a.m. (1) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of
Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess
thereof; and (C) any prepayment of Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in
each case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid and, if
Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such
Loans.  The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.  Subject to Section 2.16, each
such prepayment shall be applied to the Revolving Credit Loans of the Lenders
in accordance with their respective Applicable Percentages.


 


(ii)                                  The Borrower may, upon notice to the
Swing Line Lender (with a copy to the Administrative Agent), at any time or
from time to time, voluntarily prepay Swing 


 


43

















 


Line Loans in whole or in part without premium or
penalty; provided that (A) such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 12:00 noon on the
date of the prepayment, and (B) any such prepayment shall be in a minimum
principal amount of $100,000.  Each such
notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.


 


(b)                                 Mandatory.  If for any reason the Total
Outstandings at any time exceed the Aggregate
Commitments at such time, the Borrower shall immediately prepay
Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash
Collateralize the L/C Obligations (other than the L/C Borrowings) in an
aggregate amount equal to such excess.


 


2.06                        Termination or Reduction of
Commitments.  The Borrower may, upon notice to the Administrative
Agent, terminate the Aggregate Commitments, the Letter of Credit Sublimit or
the Swing Line Sublimit, or from time to time permanently reduce the Aggregate
Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit; provided
that (i) any such notice shall be received by the Administrative Agent not
later than 10:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate
amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and
(iii) the Borrower shall not terminate or reduce (A) the Aggregate
Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments, (B) the
Letter of Credit Sublimit if, after giving effect thereto, the Outstanding
Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed
the Letter of Credit Sublimit, or (C) the Swing Line Sublimit if, after
giving effect thereto and to any concurrent prepayments hereunder, the
Outstanding Amount of Swing Line Loans would exceed the Letter of Credit
Sublimit.  The Administrative Agent will promptly notify the Lenders of any
termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit
or the Aggregate Commitments under this Section 2.06.  Upon any reduction of the Aggregate
Commitments, the Commitment of each Lender shall be reduced by such Lender’s Applicable
Percentage of such reduction amount.  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) Revolving
Credit Loans.  The Borrower shall
repay to the Lenders on the Maturity Date the aggregate principal amount of all
Revolving Credit Loans outstanding on such date.


 


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


 


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


 


44

















 


from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate.


 


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


 


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


 


(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 Sections 2.03(h) and
(i):


 


(a)                                  Commitment Fee. 
The Borrower shall pay to the Administrative Agent for the account of
each Lender in accordance with its Applicable Percentage, a commitment fee
equal to the Applicable Fee Rate times the actual daily amount by which
the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of
Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations,
subject to adjustment as provided in Section 2.16.  The commitment fee shall accrue at all times
during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the last day of the Availability Period. 
The commitment fee shall be calculated quarterly in arrears.


 


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


 


45

















 


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


 


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 Eurodollar Rate) shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year).  Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day
on which it is made shall, subject to Section 2.12(a), bear
interest for one day.  Each determination
by the Administrative Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.


 


(b)                                 If, as a result of any restatement of or
other adjustment to the financial statements of the Borrower  or for any other reason, the Borrower  or
the Lenders determine that (i) the Consolidated Leverage Ratio as
calculated by the Borrower  as of any
applicable date was inaccurate and (ii) a proper calculation of the
Consolidated Leverage Ratio would have resulted in different pricing for such
period, any excess interest paid by the Borrower shall be applied as a credit
to the next payment of interest by the Borrower (with such credit to be applied
ratably among the Lenders) or  the
Borrower shall immediately and retroactively be obligated to pay to the
Administrative Agent for the account of the applicable Lenders or L/C Issuers,
as the case may be, promptly on demand by the Administrative Agent (or, after
the occurrence of an actual or deemed entry of an order for relief with respect
to the Borrower under the Bankruptcy Code of the United States, automatically
and without further action by the Administrative Agent, any Lender or any 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, as applicable. 
This paragraph shall not limit the rights of the Administrative Agent,
any Lender or any L/C Issuer, as the case may be, under Section 2.03(c)(iii),
2.03(h) 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 Borrower and the interest and payments
thereon.  Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the
Obligations.  In the event of any
conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.  Upon the
request of any Lender made through the Administrative Agent, the Borrower shall
execute and deliver to such Lender (through the Administrative Agent) a Note,
which shall 


 


46

















 


evidence such Lender’s
Loans in addition to such accounts or records. 
Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.


 


(b)                                 In addition to the accounts and records
referred to in Section 2.11(a), each Lender and the Administrative
Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swing Line Loans.  In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such
matters, the accounts and records of the Administrative Agent shall control in
the absence of manifest error.


 


2.12                        Payments Generally;
Administrative Agent’s Clawback.  (a) General.  All payments to be made by the Borrower shall
be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.  Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in Same Day Funds not later than 1:00 p.m. on the date
specified herein.  If, for any reason,
the Borrower is prohibited by any Law from making any required payment
hereunder in an Alternative Currency, the Borrower shall make such payment in
Dollars in the Dollar Equivalent of the Alternative Currency payment
amount.  The Administrative Agent will
promptly distribute to each Lender its Applicable Percentage (or other
applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative
Agent after 1:00 p.m. shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected on
computing interest or fees, as the case may be.


 


(b)                                 (i)                                     Funding by Lenders; Presumption by Administrative
Agent.  Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any Borrowing of
Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 11:00 a.m. on the date of such Borrowing) that such Lender will
not make available to the Administrative Agent such Lender’s share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 (or,
in the case of a Borrowing of Base Rate Loans, that such Lender has made such
share available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount.  In such event, if
a Lender has not in fact made its share of the applicable Borrowing available
to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in Same Day Funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the
case of a payment to be made by such Lender, the greater 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 


 


47

















 


made by the Borrower, the
interest rate applicable to Base Rate Loans. 
If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative
Agent shall promptly remit to the Borrower the amount of such interest paid by
the Borrower for such period.  If such
Lender pays its share of the applicable Borrowing to the Administrative Agent,
then the amount so paid shall constitute such Lender’s Loan included in such
Borrowing.  Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent.


 


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


 


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


 


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


 


(d)                                 Obligations of Lenders Several. 
The obligations of the Lenders hereunder to make Revolving Credit 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 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 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 


 


48

















 


Lender that it has
obtained or will obtain the funds for any Loan in any particular place or
manner.


 


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


 


2.13                        Sharing of Payments by Lenders.  If
any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of (a) Obligations due and payable to
such Lender hereunder and under the other Loan Documents at such time in excess
of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lenders hereunder
and under the other Loan Documents at such time) of payments on account of the
Obligations due and payable to all Lenders hereunder and under the other Loan
Documents at such time obtained by all the Lenders at such time or (b) Obligations
owing (but not due and payable) to such Lender hereunder and under the other
Loan Documents at such time in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations owing (but not due and
payable) to such Lender at such time to (ii) the aggregate amount of the
Obligations owing (but not due and payable) to all Lenders hereunder and under
the other Loan Parties at such time) of payment on account of the Obligations
owing (but not due and payable) to all Lenders hereunder and under the other
Loan Documents at such time obtained by all of the Lenders at such time then
the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Revolving Credit Loans and subparticipations in
L/C Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of Obligations then due and payable to the Lenders or owing (but not due and
payable) to the Lenders, as the case may be, provided that:


 


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


 


(ii)                                  the provisions of this Section shall
not be construed to apply to (A) any payment made by or on behalf of the
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), (B) the application of Cash Collateral provided for in Section 2.15,
or (C) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or
subparticipations in L/C Obligations or Swing Line Loans to any assignee or
participant, other than to the Borrower or any Subsidiary thereof (as to which
the provisions of this Section shall apply).


 


49

















 


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


 


2.14                        Increase in Commitments.


 


(a)                                  Request for Increase. 
Provided there exists no Default, upon notice to the Administrative
Agent (which shall promptly notify the Lenders), the Borrower may from time to
time, request an increase in the Aggregate Commitments by an amount not
exceeding $30,000,000; provided that (i) any such request for an
increase shall be in a minimum amount of $5,000,000, and (ii) the Borrower
may make a maximum of three such requests. 
At the time of sending such notice, the Borrower (in consultation with
the Administrative Agent) shall specify the time period within which each
Lender is requested to respond (which shall in no event be less than ten Business
Days from the date of delivery of such notice to the Lenders).


 


(b)                                 Lender Elections to Increase. 
Each Lender shall notify the Administrative Agent within such time
period whether or not it agrees to increase its Commitment and, if so, whether
by an amount equal to, greater than, or less than its Applicable Percentage of
such requested increase.  Any Lender not
responding within such time period shall be deemed to have declined to increase
its Commitment.


 


(c)                                  Notification by Administrative Agent; Additional
Lenders.  The Administrative Agent shall notify the
Borrower and each Lender of the Lenders’ responses to each request made
hereunder.  To achieve the full amount of
a requested increase and subject to the approval of the Administrative Agent,
the L/C Issuers and the Swing Line Lender (which approvals shall not be
unreasonably withheld), the Borrower may also invite additional Eligible
Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.


 


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


 


(e)                                  Conditions to Effectiveness of Increase. 
As a condition precedent to such increase, the Borrower shall deliver to
the Administrative Agent a certificate of each Loan Party dated as of the
Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (x) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such
increase, and (y) in the case of the Borrower, certifying that, before and
after giving effect to such increase, (A) the representations and
warranties contained in Article V and the other Loan Documents are
true and correct on and as of the Increase Effective Date, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they are true and correct as of such earlier date, and except
that for purposes of this Section 2.14, the representations and
warranties contained in 


 


50
















 


subsections (a) and (b) of Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 6.01, and (B) no
Default exists.  The Borrower shall
prepay any Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Loans ratable with any revised Applicable
Percentages arising from any nonratable increase in the Commitments under this
Section.


 


(f)                                    Conflicting Provisions. 
This Section shall supersede any provisions in Section 2.13
or 10.01 to the contrary.


 


2.15                        Cash Collateral.


 


(a)                                  Certain Credit
Support Events.  Upon the request of the Administrative
Agent or an L/C Issuer (i) if such 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 that has not been reimbursed or repaid by Borrower
in accordance with this Agreement, or (ii) if, as of the Letter of Credit
Expiration Date, any L/C Obligation for any reason remains outstanding, the
Borrower shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations. 
At any time that there shall exist a Defaulting Lender, immediately upon
the request of the Administrative Agent, an L/C Issuer or the Swing Line
Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral
in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.16(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 Bank of America.  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
Issuers 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 2.15(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 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 2.15 or Sections
2.03, 2.04, 2.05, 2.16 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.


 


51

















 


(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
during the continuance of a Default or Event of Default (and following application
as provided in this Section 2.15 may be otherwise applied in
accordance with Section 8.03), and (y) the Person providing
Cash Collateral and the L/C Issuers 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.


 


2.16                        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, to the extent permitted by applicable Law:


 


(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 Issuers or the Swing Line Lender hereunder;
third, if so determined by the
Administrative Agent or requested by an L/C Issuer or the 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 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 Issuers or the Swing Line
Lender as a result of any judgment of a court of competent jurisdiction
obtained by any Lender, any L/C Issuer or the 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 


 


52

















 


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 2.16(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 commitment fee pursuant to Section 2.09(a) for
any period during which that Lender is a Defaulting Lender (and the 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 only to extent allocable to the sum of (1) the
Outstanding Amount of the Loans funded by it and (2) its Applicable
Percentage of the stated amount of Letters of Credit and Swing Line Loans for which
it has provided Cash Collateral pursuant to Section 2.03,  Section 2.04,
Section 2.15, or Section 2.16(a)(ii), as applicable (and the Borrower shall (A) be
required to pay to each of the L/C Issuers and the Swing Line Lender, as
applicable, the amount of such fee allocable to its Fronting Exposure arising
from that Defaulting Lender and (B) not be required to pay the remaining
amount of such fee that otherwise would have been required to have been paid to
that Defaulting Lender) and (y) shall be limited in its right to
receive Letter of Credit Fees as provided in Section 2.03(h).


 


(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 Loans of that Lender.


 


(b)                                 Defaulting
Lender Cure.  If the Borrower, the Administrative
Agent, Swing Line Lender and the L/C Issuers 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 


 


53

















 


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 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 2.16(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 the 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 the
Borrower  or the Administrative Agent to
withhold or deduct any Tax, such Tax shall be withheld or deducted in
accordance with such Laws as determined by the Borrower  or
the Administrative Agent, as the case may be, upon the basis of the information
and documentation to be delivered pursuant to subsection (e) below.


 


(ii)                                  If the Borrower or the Administrative
Agent shall be required by the Code to withhold or deduct any Taxes, including
both United States Federal backup withholding and withholding taxes, from any
payment, then (A) the Administrative Agent shall withhold or make such
deductions as are determined by the Administrative Agent to be required based
upon the information and documentation it has received pursuant to subsection
(e) below, (B) the Administrative Agent shall timely pay the full
amount withheld or deducted to the relevant Governmental Authority in
accordance with the Code, and (C) to the extent that the withholding or
deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrower shall be increased as necessary so that after any
required withholding or the making of all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or applicable 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, the
Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c)                                  Tax Indemnifications.  (i) Without
limiting the provisions of subsection (a) or (b) above,
the Borrower shall, and does  hereby,
indemnify the Administrative Agent, each Lender and each L/C Issuer, and shall
make payment in respect thereof within 10 days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified 


 


54

















 


Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
withheld or deducted by the Borrower  or the
Administrative Agent or paid by the Administrative Agent, such Lender or such 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.  The
Borrower shall also, and does  hereby,
indemnify the Administrative Agent, and shall make payment in respect thereof
within 10 days after demand therefor, for any amount which a Lender or an 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 the Borrower by a Lender or an 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 an L/C Issuer, shall be conclusive
absent manifest error.


 


(ii)                                  Without limiting the provisions of subsection
(a) or (b) above, each Lender and each L/C Issuer shall,
and does hereby, indemnify the Borrower and the Administrative Agent, and shall
make payment in respect thereof within 10 days after demand therefor, against
any and all Taxes and any and all related losses, claims, liabilities,
penalties, interest and expenses (including the fees, charges and disbursements
of any counsel for the Borrower  or the
Administrative Agent) incurred by or asserted against the Borrower or the
Administrative Agent by any Governmental Authority as a result of the failure
by such Lender or such 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 such L/C Issuer, as the case may be,
to the Borrower or the Administrative Agent pursuant to subsection (e).  Each Lender and each 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 such 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 an 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 the Borrower  or the
Administrative Agent, as the case may be, after any payment of Taxes by the
Borrower  or the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, the Borrower  shall deliver to the Administrative Agent or
the Administrative Agent shall deliver to the Borrower, as the case may be, the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of any return required by Laws to report such
payment or other evidence of such payment reasonably satisfactory to the
Borrower  or the Administrative Agent, as the
case may be.


 


(e)                                  Status of Lenders; Tax Documentation.  (i) Each
Lender shall deliver to the Borrower  and to the
Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrower  or the
Administrative Agent, such properly completed and executed documentation
prescribed by applicable Laws or by the taxing authorities of any jurisdiction
and such other reasonably requested information as will permit the Borrower  or the Administrative Agent, as the case may be, to
determine (A) whether or not 


 


55

















 


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 Borrower 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 the Borrower is resident for tax purposes in the United States,


 


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


 


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


 


(1)                                  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,


 


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


 


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


 


(4)                                  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


 


(5)                                  executed originals of any other form
prescribed by applicable Laws as a basis for claiming exemption from or a
reduction in 


 


56

















 


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


 


(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 any L/C Issuer, or have any obligation to pay to any Lender or any L/C
Issuer, any refund of Taxes withheld or deducted from funds paid for the
account of such Lender or such L/C Issuer, as the case may be.  If the Administrative Agent, any Lender or any
L/C Issuer determines, in its sole discretion, that it has received a refund of
any Taxes or Other Taxes as to which it has been indemnified by the Borrower or
with respect to which the Borrower has paid additional amounts pursuant to this
Section, it shall pay to the Borrower an amount equal to such refund (but only
to the extent of indemnity payments made, or additional amounts paid, by the
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 such L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon
the request of the Administrative Agent, such Lender or such L/C Issuer, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or such L/C Issuer in the event the Administrative
Agent, such Lender or such 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 any L/C
Issuer to make available its tax returns (or any other information relating to
its taxes that it deems confidential) to the Borrower  or
any other Person.


 


3.02                        Illegality. 
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Loans whose interest is
determined by reference to the Eurodollar Rate, or to determine or charge
interest rates based upon the Eurodollar Rate, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or
sell, or to take deposits of, Dollars in the London interbank market, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
(i) any obligation of such Lender to make or continue Eurodollar Rate
Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended,
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 Eurodollar Rate component of the Base Rate, the interest rate
on which Base 


 


57

















 


Rate Loans of such Lender
shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the Eurodollar Rate component of the
Base Rate, in each case until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer
exist.  Upon receipt of such notice, (x) the
Borrower shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such
Lender to Base Rate Loans (the interest 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 Eurodollar Rate component of the
Base Rate), either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans and (y) if such notice asserts the illegality of
such Lender determining or charging interest rates based upon the Eurodollar
Rate, the Administrative Agent shall during the period of such suspension
compute the Base Rate applicable to such Lender without reference to the
Eurodollar Rate 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 Eurodollar Rate. 
Upon any such prepayment or conversion, the Borrower shall also pay
accrued interest on the amount so prepaid or converted.


 


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


 


3.04                        Increased Costs; Reserves on
Eurodollar Rate Loans.  (a) Increased Costs
Generally.  If any Change in Law
shall:


 


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


 


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(ii)                                  subject any Lender or any L/C Issuer to
any tax of any kind whatsoever with respect to this Agreement, any Letter of
Credit, any participation in a Letter of Credit or any Eurodollar Rate Loan
made by it, or change the basis of taxation of payments to such Lender or such 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 such L/C Issuer); or


 


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


 


and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any Loan the interest on which is determined by reference to the Eurodollar
Rate (or of maintaining its obligation to make any such Loan), or to increase
the cost to such Lender or such 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 such L/C Issuer hereunder
(whether of principal, interest or any other amount) then, upon request of such
Lender or such L/C Issuer, the Borrower will pay to such Lender or such L/C
Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or such L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.


 


(b)                                 Capital Requirements. 
If any Lender or any L/C Issuer determines that any Change in Law affecting
such Lender or such L/C Issuer or any Lending Office of such Lender or such
Lender’s or such 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 such L/C Issuer’s capital or on the capital of such Lender’s
or such 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 such L/C Issuer, to a level below that which such Lender or such
L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s or
such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or such L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or such L/C Issuer
or such Lender’s or such L/C Issuer’s holding company for any such reduction
suffered.


 


(c)                                  Certificates for Reimbursement. 
A certificate of a Lender or an L/C Issuer setting forth the amount or
amounts necessary to compensate such Lender or such L/C Issuer or its holding
company, as the case may be, as specified in subsection (a) or (b) of
this Section and delivered to the Borrower shall be conclusive absent
manifest error.  The Borrower shall pay such
Lender or such 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 any L/C Issuer to demand
compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand
such compensation, provided that 


 


59

















 


the Borrower shall not be
required to compensate a Lender or an 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 such L/C
Issuer, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s or such 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 Eurodollar Rate Loans. 
The Borrower shall pay to each Lender, as long as such Lender shall be
required to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each
Eurodollar Rate Loan equal to the actual costs of such reserves allocated to
such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date
on which interest is payable on such Loan, provided the Borrower shall
have received at least 10 days’ prior notice (with a copy to the Administrative
Agent) of such additional interest from such Lender.  If a Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 10 days from receipt of such notice.


 


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


 


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


 


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


 


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


 


(d)                                 any assignment of a Eurodollar Rate Loan
on a day other than the last day of the Interest Period therefor as a result of
a request by the Borrower pursuant to Section 10.13;


 


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


 


For purposes of calculating
amounts payable by the Borrower to the Lenders under this Section 3.05,
each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it
at the Eurodollar Rate  for such Loan by a matching deposit
or other borrowing in the London 


 


60

















 


interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.


 


3.06                        Mitigation Obligations;
Replacement of Lenders.  (a) Designation of a Different Lending Office.  If
any Lender requests compensation under Section 3.04, or the
Borrower is required to pay any additional amount to any Lender, any L/C Issuer, or any Governmental
Authority for the account of any Lender or
any L/C Issuer pursuant to Section 3.01, or if any Lender
gives a notice pursuant to Section 3.02, then such Lender or such 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 such 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 such
L/C Issuer, as the case may be, to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender or such L/C Issuer, as
the case may be.  The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or any 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 the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
the Borrower may replace such Lender in accordance with Section 10.13.


 


3.07                        Survival. 
All of the Borrower’s obligations under this Article III
shall survive termination of the Aggregate Commitments, 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 each L/C Issuer and each
Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:


 


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


 


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


 


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


 


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(iii)                               a pledge
and security agreement (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.12,
in each case as amended, the “Security Agreement”), duly executed by
each Loan Party, together with:


 


(A)                              certificates representing the Pledged
Securities referred to therein accompanied by undated stock powers executed in
blank and instruments evidencing the Pledged Debt indorsed in blank,


 


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


 


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


 


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


 


(E)                                 all securities account control agreements
as required by the Administrative Agent to perfect the security interests
granted in the Security Agreement and duly executed by the appropriate parties,


 


(F)                                 evidence that all other action that the
Administrative Agent may deem necessary in order to perfect the Liens created
under the Security Agreement has been taken (including receipt of duly executed
payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver
and consent agreements);


 


(iv)                              a deed of trust with respect to the
Borrower’s Houston headquarters facility (together with the Assignments of
Leases and Rents referred to therein and each other mortgage delivered pursuant
to Section 6.12, in each case as amended, the “Mortgages”), duly executed by the appropriate
Loan Party, together with:


 


(A)                              evidence that counterparts of the
Mortgages have been duly executed, acknowledged and delivered and are in form
suitable for filing or recording in all filing or recording offices that the
Administrative Agent may deem necessary in order to create a valid first and
subsisting Lien on the property described therein in favor of the Administrative
Agent for the benefit of the Secured Parties and that all filing, documentary,
stamp, intangible and recording taxes and fees have been provided for to the
satisfaction of the Administrative Agent,


 


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(B)                                copies of any existing engineering, soils
and other reports as to the properties described in the Mortgages.


 


(C)                                evidence of the insurance required by the
terms of the Mortgages,


 


(D)                               evidence that all other action that the
Administrative Agent may deem necessary in order to create valid first and
subsisting Liens on the property described in the Mortgages has been taken; and


 


(v)                                 an intellectual property security
agreement (together with each other intellectual property security agreement
and intellectual property security agreement supplement delivered pursuant to Section 6.12,
in each case as amended, the “Intellectual Property Security Agreement”), duly
executed by each Loan Party, together with evidence that all action that the
Administrative Agent may deem necessary in order to perfect the Liens created
under the Intellectual Property Security Agreement has been taken;


 


(vi)                              vessel mortgages duly executed by the
appropriate Loan Party, together with assignments of earnings and insurance and
evidence that all action that the Administrative Agent may deem necessary in
order to perfect the Liens created under such vessel mortgages has been, or
will concurrently be, taken (collectively, the “Vessel Mortgages”);


 


(vii)                           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
or is to be a party;


 


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


 


(ix)                                a favorable opinion of Haynes and Boone,
LLP, counsel to the Loan Parties, addressed to the Administrative Agent and
each Lender, as to the matters concerning the Loan Parties and the Loan
Documents as the Required Lenders may reasonably request;


 


(x)                                   Intentionally Deleted.


 


(xi)                                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 consummation by such Loan Party of
the Transaction and the execution, delivery and performance by such Loan Party
and the validity against such Loan Party of the Loan 


 


63
















 


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;


 


(xii)                             a certificate signed by a Responsible
Officer of the Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance
since  December 31, 2009 that has
had or could be reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect;


 


(xiii)                          a business plan and budget of the Borrower
and its Subsidiaries on a consolidated basis, including
forecasts prepared by management of the
Borrower, of consolidated balance sheets and statements of income or operations
and cash flows of the Borrower
and its Subsidiaries on a quarterly basis for the Borrower’s fiscal year 2010,
and on an annual basis for each of the Borrower’s fiscal years 2011 through
2013;


 


(xiv)                         certificates attesting to the Solvency of
each Loan Party before and after giving effect to the Transaction, from its
chief financial officer;


 


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


 


(xvi)                         evidence that the Existing Credit
Agreements have been, or concurrently with the Closing Date are being,
terminated and all Liens securing obligations under the Existing Credit
Agreements have been, or concurrently with the Closing Date are being,
released; and


 


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


 


(b)                                 The Borrower shall have received not less
than $75,000,000 of net cash proceeds from the IPO.


 


(c)                                  The Borrower shall have received not less
than $185,000,000 of net cash proceeds from the issuance of the Senior Notes.


 


(d)                                 (i) All fees required to be paid to
the Administrative Agent and the Arranger on or before the Closing Date shall
have been paid and (ii) all fees required to be paid to the Lenders on or
before the Closing Date shall have been paid.


 


(e)                                  Unless waived by the Administrative
Agent, the Borrower shall have paid all reasonable fees, charges and disbursements
of counsel to the Administrative Agent (directly to such counsel if requested
by the Administrative Agent) to the extent invoiced prior to the Closing Date,
plus such additional amounts of such fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and disbursements
incurred or to be 


 


64

















 


incurred by it through
the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and the
Administrative Agent).


 


(f)                                    The Closing Date shall have occurred on
or before May 31, 2010.


 


(g)                                 The Lenders shall have completed a due
diligence investigation of the Borrower and its Subsidiaries in scope, and with
results, satisfactory to the Lenders, and shall have been given such access to
the management, records, books of account, contracts and properties of the
Borrower and its Subsidiaries and shall have received such financial, business
and other information regarding each of the foregoing Persons and businesses as
they shall have requested, including, without limitation, information as to
possible contingent liabilities, tax matters, collective bargaining agreements
and other arrangements with employees, the annual (or other audited) financial
statements of the Borrower and its Subsidiaries for the fiscal years ended
2007, 2008, and 2009, interim financial statements of the Borrower and its
Subsidiaries dated as of the end of the most recent fiscal quarter for which
financial statements are available at the Closing Date.


 


(h)                                 After giving effect to the Transaction,
including all Credit Extensions made in connection therewith, the amount by
which the aggregate Commitments exceeds the sum of (i) the Outstanding
Amount of Revolving Credit Loans and Swing Line Loans and (ii) the
Outstanding Amount of L/C Obligations shall be no less than $5,000,000.


 


(i)                                     The Lenders shall be satisfied with (i) the
capital and ownership structure and the shareholder arrangements of the
Borrower and each of the Guarantors, in each case, giving effect to the
Transaction and (ii) the material terms and conditions of (A) the
Senior Notes and (B) all intercompany Indebtedness (other than any such
Indebtedness between Subsidiaries that are not Guarantors and whose equity
interests do not constitute part of the Collateral) and all Indebtedness and
other liabilities of the Borrower and its Subsidiaries to third parties that
are to remain outstanding following the Closing Date.


 


(j)                                     The Administrative Agent shall have
received, in form and substance reasonably satisfactory to it, all
environmental reports, asset appraisal, field audit, and such other reports,
audits or certifications as it may reasonably request.


 


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 Revolving Credit Loan Notice
requesting only a conversion of Revolving Credit Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:


 


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


 


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


 


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


 


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


 


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


 


ARTICLE
V

REPRESENTATIONS AND WARRANTIES


 


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


 


5.01                        Existence, Qualification and
Power.  Each Loan Party and each of its Subsidiaries (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 and Related Documents to which it is a
party and consummate the Transaction, 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 and Related Document to which such Person is or is to be a party have
been duly authorized by all necessary corporate or other organizational action,



 


66

















 


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 (a) the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan
Document or Related Document, or for the consummation of the Transaction, (b) the
grant by any Loan Party of the Liens granted by it pursuant to the Collateral
Documents, (c) the perfection or maintenance of the Liens created under
the Collateral Documents (including the first priority nature thereof) or (d) the
exercise by the Administrative Agent or any Lender of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for (i) the
filing of Uniform Commercial Code financing statements, filings with the United
States Patent and Trademark Office and the United States Copyright Office, and
recordation of the Mortgages and the Vessel Mortgage and (ii) the
authorizations, approvals, actions, notices and filings which have been duly
obtained, taken, given or made and are in full force and effect.


 


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 Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the
Borrower and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.


 


(b)                                 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.


 


(c)                                  The consolidated forecasted balance
sheet, statements of income and cash flows of the Borrower  and its
Subsidiaries delivered pursuant to Section 4.01 were prepared in
good faith on the basis of the assumptions stated therein, which assumptions
were reasonable in light of the then known facts, circumstances and conditions
existing at the time of delivery of such 


 


67

















 


forecasts, and
represented, at the time of delivery, the Borrower’s best estimate of its
future financial condition and performance.


 


5.06                        Litigation. 
There are no actions, suits, proceedings, claims or disputes pending or,
to the knowledge of the Borrower after due and diligent investigation, threatened
or contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against the Borrower or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this
Agreement, any other Loan Document or the consummation of the Transaction, 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, or a party to, any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.  No Default has occurred
and is continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.


 


5.08                        Ownership of Property; Liens.  (a) Each
Loan Party and each of its Subsidiaries has good and marketable title in fee
simple to, or valid leasehold interests in, all real property necessary or used
in the ordinary conduct of its business, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


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


 


(c)                                  Schedule 5.08(c) sets forth a complete and accurate
list of all real property owned by each Loan Party and each of its Subsidiaries
as of the date hereof, and showing the street address, county or other relevant
jurisdiction, state, record owner and book and estimated fair value thereof. 
Each Loan Party and each of its Subsidiaries has good, marketable and
insurable fee simple title to the real property owned by such Loan Party or
such Subsidiary, free and clear of all Liens, other than Liens created or
permitted by the Loan Documents.


 


(d)                                 (i)                                     Schedule 5.08(d)(i) sets
forth a complete and accurate list of all leases of real property under which any Loan Party or any
Subsidiary of a Loan Party is the lessee as of the date hereof, and showing the
street address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual base rental cost thereof.  Each such lease is the legal, valid and
binding obligation of the lessor thereof, enforceable in accordance with its
terms.


 


(ii)                                  Schedule 5.08(d)(ii) sets forth a complete and accurate
list of all leases of real property under which any Loan Party or any
Subsidiary of a Loan Party is the lessor as of the date hereof, and showing the
street address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual base rental income thereof.  Each such 


 


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lease is the legal, valid and binding obligation of
the lessee thereof, enforceable in accordance with its terms.


 


5.09                        Environmental Compliance. 
Except for any such matters that, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect,


 


(a)                                  The properties owned, leased or operated
by the Loan Parties do not contain, and to their knowledge have not previously
contained, any Hazardous Materials in amounts or concentrations which (A) constitute
or constituted a violation of applicable Environmental Laws or (B) could
give rise to liability under applicable Environmental Laws.


 


(b)                                 Each Loan Party and such properties and
all operations conducted in connection therewith are in compliance, and have
been in compliance, with all applicable Environmental Laws, there is no
contamination at, under or about such properties or such operations which could
interfere with the continued operation of such properties or impair the fair
saleable value thereof and no Loan Party has become subject to any liability
under any Environmental Law;


 


(c)                                  No Loan Party has received any notice of
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters, Hazardous Materials, or compliance with
Environmental Laws, nor does any Loan Party have knowledge or reason to believe
that any such notice will be received or is being threatened;


 


(d)                                 Hazardous Materials have not been
transported or disposed of to or from the properties owned, leased or operated
by any Loan Party in violation of, or in a manner or to a location which could
give rise to liability under, Environmental Laws, nor have any Hazardous
Materials been generated, treated, stored or disposed of at, on or under any of
such properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Laws;


 


(e)                                  No judicial proceedings or governmental
or administrative action is pending, or, to the knowledge of any Loan Party,
threatened, under any Environmental Law to which any Loan Party is or will be
named as a potentially responsible party with respect to such properties or
operations conducted in connection therewith, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to any Loan Party or such properties or such
operations; and


 


(f)                                    There has been no release, or to the best
of each Loan Party’s knowledge, threat of release, of Hazardous Materials at or
from properties owned, leased or operated by any Loan Party, now or in the
past, in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws.


 


5.10                        Insurance. 
The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates.


 


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5.11                        Taxes. 
The Borrower 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 Borrower 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 other than customary tax allocation
provisions in the Organization Documents of any Person in which Borrower or any
of its Subsidiaries has an Investment.


 


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 the Borrower, 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 the Borrower, 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 the 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 Borrower 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 the 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) neither the 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) neither
the 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)                                 With respect to each scheme or
arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and with respect to 


 


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each employee benefit
plan maintained or contributed to by any Loan Party or any Subsidiary of any
Loan Party that is not subject to United States law (a “Foreign Plan”):


 


(i)                                     any employer and employee contributions
required by law or by the terms of any Foreign Government Scheme or Arrangement
or any Foreign Plan have been made, or, if applicable, accrued, in accordance
with normal accounting practices;


 


(ii)                                  the fair market value of the assets of
each funded Foreign Plan, the liability of each insurer for any Foreign Plan
funded through insurance or the book reserve established for any Foreign Plan,
together with any accrued contributions, is sufficient to procure or provide
for the accrued benefit obligations, as of the date hereof, with respect to all
current and former participants in such Foreign Plan according to the actuarial
assumptions and valuations most recently used to account for such obligations
in accordance with applicable generally accepted accounting principles; and


 


(iii)                               each Foreign Plan required to be
registered has been registered and has been maintained in good standing with
applicable regulatory authorities.


 


5.13                        Subsidiaries; Equity Interests;
Loan Parties.  As of
the Closing Date, the Borrower has
no  Subsidiaries other than
those specifically disclosed in Part (a) of Schedule 5.13, and
all of the outstanding Equity Interests in such Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by a Loan Party or a
Subsidiary of a Loan Party in the amounts specified on Part (a) of Schedule 5.13
free and clear of all Liens except those created under the Collateral Documents.  As of the Closing Date, the Borrower has no  equity investments in any other corporation or entity
other than those specifically disclosed in Part (b) of Schedule
5.13.  Set forth on Part (c) of
Schedule 5.13 is a complete and accurate list of all Loan Parties,
showing as of the Closing Date (as to each Loan Party) the jurisdiction of its
incorporation, the address of its principal place of business and its U.S.
taxpayer identification number or, in the case of any non-U.S. Loan Party that
does not have a U.S. taxpayer identification number, its unique identification
number issued to it by the jurisdiction of its incorporation.  As of the Closing Date, the Borrower has no
Material Foreign Subsidiaries other than Global Geophysical Services, Ltd.


 


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


 


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


 


5.15                        Disclosure. 
The Borrower has disclosed to the Administrative Agent and the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.  No report,
financial statement, certificate or other information furnished (whether in
writing or orally) by or on 


 


71

















 


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


 


5.17                        Intellectual Property; Licenses,
Etc.  The Borrower  and
each of its Subsidiaries own, or possess the right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person,
and Schedule 5.17 sets forth a complete and accurate list of all such IP
Rights owned or used by the Borrower  and each of
its Subsidiaries as of the Closing Date. 
No slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Borrower  or any of its
Subsidiaries infringes upon any rights held by any other Person, and no claim
or litigation regarding any of the foregoing is pending or, to the best
knowledge of the Borrower, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.


 


5.18                        Solvency. 
Each Loan Party is, individually and together with its Subsidiaries on a
consolidated basis, Solvent.


 


5.19                        Casualty, Etc. 
Neither the businesses nor the properties of any Loan Party or any of its
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or
other labor dispute, drought, storm, hail, earthquake, embargo, act of God or
of the public enemy or other casualty (whether or not covered by insurance)
that, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.


 


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


 


5.21                        Sanctioned Persons. 
None of the Loan Parties nor, to the knowledge of the Borrower, any
director, officer, agent, employee or Affiliate of any Loan Party is currently
subject to any sanctions administered by the Office of Foreign Assets Control
of the U.S.


 


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Treasury Department (“OFAC”);
and no Loan Party will directly or indirectly use the proceeds of the Loans or
the Letters of Credit or otherwise make available such proceeds to any person,
for the purpose of financing the activities of any person currently subject to
any U.S. sanctions administered by OFAC.


 


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 Borrower shall, and shall (except in the case of the covenants set forth in
Sections 6.01, 6.02, 6.03 and 6.11) 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 90 days after the end of each fiscal year of the Borrower (or, if
earlier, 15 days after the date required to be filed with the SEC), a
consolidated balance sheet of the Borrower  and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, changes in shareholders’ equity, and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion of UHY,
LLC or another independent certified public accountant of nationally recognized
standing reasonably acceptable to the Administrrative Agent, 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;


 


(b)                                 as soon as available, but in any event
within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower (or, if
earlier, 5 days after the date required to be filed with the SEC), a
consolidated  balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal quarter,
and the related consolidated statements of income or operations, changes in
shareholders’ equity, and cash flows for such fiscal quarter and for the
portion of the Borrower’s  fiscal year then ended, setting
forth in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, certified by the chief
executive officer, chief financial officer, treasurer or controller of the Borrower
as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of the Borrower  and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes; and


 


(c)                                  as soon as available, but in any event at
least 30 days after the commencement of each fiscal year of the Borrower, an annual business plan
and budget of the Borrower and
its Subsidiaries on a consolidated basis, including forecasts prepared by
management of the Borrower, in a form reasonably satisfactory to the
Administrative Agent, of consolidated balance sheets and statements of income
or operations and cash flows of the
Borrower and its 


 


73

















 


Subsidiaries on a quarterly basis for such fiscal year
(including the fiscal year in which the Maturity Date occurs).


 


As to any information
contained in materials furnished pursuant to Section 6.02(d), the
Borrower shall not be separately required to furnish such information under Section 6.01(a) or
(b) above, but the foregoing shall not be in derogation of the
obligation of the Borrower to furnish the information and materials described
in Sections 6.01(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 its independent certified public accountants certifying such financial
statements and stating that in making the examination necessary therefor no
knowledge was obtained of any Default under the financial covenants set forth
herein or, if any such Default shall exist, stating the nature and status of
such event;


 


(b)                                 concurrently with the delivery of the
financial statements referred to in Sections 6.01(a) and (b),
commencing with the delivery of the financial statements for the fiscal quarter
ending June 30, 2010, (i) a duly completed Compliance Certificate
signed by the chief executive officer, chief financial officer, treasurer or
controller of the Borrower, and in the
event of any change in generally accepted accounting principles used in the
preparation of such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 7.11, a
statement of reconciliation conforming such financial statements to GAAP  , (ii) a copy of the report prepared
by the Borrower consistent with past practice, showing the projected usage of
any and all seismic crews owned or operated by the Loan Parties for the ensuing
three calendar months and (iii) a copy of the backlog reports and summary
of the location of each seismic crew and the status of each ongoing project for
such crews prepared by the Borrower consistent with past practice (which
delivery may be by electronic communication including fax or email and shall be
deemed to be an original authentic counterpart thereof for all purposes);


 


(c)                                  promptly after any request by the
Administrative Agent or any Lender, copies of any material detailed audit
reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of any Loan Party
by independent accountants in connection with the accounts or books of any Loan
Party or any of its Subsidiaries, 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 material
report or communication sent to the stockholders of the Borrower, and copies of
all material annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the SEC
under Section 13 or 15(d) of the Securities Exchange Act of 1934, or
with any national securities exchange, and in any case not otherwise required
to be delivered to the Administrative Agent pursuant hereto;


 


74

















 


(e)                                  promptly after the furnishing thereof,
copies of any default notice or other material statement or report furnished to
any holder of debt securities of any Loan Party or of any of its Subsidiaries
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)                                    as soon as available, but in any event
within 30 days after the end of each fiscal year of the Borrower, a report summarizing the insurance coverage
(specifying type, amount and carrier) in effect for each Loan Party and its
Subsidiaries and containing such additional information as the Administrative
Agent,  may reasonably specify;


 


(g)                                 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;


 


(h)                                 not later than five Business Days after
receipt thereof by any Loan Party or any Subsidiary thereof, copies of all
material notices, requests and other documents (including amendments, waivers
and other modifications and notices of default, acceleration, or exercise of
remedial action) so received under or pursuant to any Related Document or
instrument, indenture, loan or credit or similar agreement and, from time to
time upon request by the Administrative Agent, such information and reports
regarding the Related Documents and such instruments, indentures and loan and
credit and similar agreements as the Administrative Agent may reasonably
request;


 


(i)                                     promptly after the assertion or
occurrence thereof, notice of any action or proceeding against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any material
property described in the Mortgages to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental Law;


 


(j)                                     as soon as available, but in any event
within 30 days after the end of each fiscal year of the Borrower, (i) a
report supplementing Schedules 5.08(c), 5.08(d)(i) and 5.08(d)(ii),
including an identification of all owned and leased real property disposed of
by the Borrower  or any Subsidiary thereof during
such fiscal year, a list and description (including the street address, county
or other relevant jurisdiction, state, record owner, book value thereof and, in
the case of leases of property, lessor, lessee, expiration date and annual
rental cost thereof) of all real property acquired or leased during such fiscal
year and a description of such other changes in the information included in
such Schedules as may be necessary for such Schedules to be accurate and
complete; (ii) a report
supplementing Schedules 3.4, 3.5(a), 3.5(c), 3.7 and 3.8 of the Security
Agreement, including a description of assets of the applicable type acquired
during such fiscal year and such other changes in the information included in
such Schedules as may be necessary for such Schedules to be accurate and complete;
(iii) a report supplementing Schedule 5.13 containing a
description of all changes in the information included in such Schedules as may
be necessary for such Schedules to be accurate and complete; each such report 


 


75

















 


to be signed by a
Responsible Officer of the Borrower and to be in a form reasonably satisfactory
to the Administrative Agent; and (iv) written notice of any Subsidiary
that was a Material Foreign Subsidiary as of the end of such fiscal year; and


 


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


 


Documents required to be
delivered pursuant to Section 6.01(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 Borrower posts such
documents, or provides a link thereto on the Borrower’s website on the Internet
at the website address listed on Schedule 10.02; or (ii) on which
such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: 
(i) the Borrower shall deliver paper copies of such documents to
the Administrative Agent or any Lender upon its request to the Borrower to
deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender and (ii) the
Borrower shall notify the Administrative Agent and each Lender (by telecopier
or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents.  The
Administrative Agent shall have no obligation to request the delivery of or to
maintain paper copies of the documents referred to above, and in any event
shall have no responsibility to monitor compliance by the Borrower with any
such request by a Lender for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.


 


The Borrower hereby
acknowledges that (a) the Administrative Agent and/or the Arranger will make
available to the Lenders and the L/C Issuers materials and/or information
provided by or on behalf of the Borrower 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 the Borrower or its
Affiliates, or the respective securities of any of the foregoing, and who may
be engaged in investment and other market-related activities with respect to
such Persons’ securities.  The Borrower
hereby agrees that so long as the
Borrower is the issuer of any outstanding debt or equity securities that are
registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities it will use commercially
reasonable efforts to identify that portion of the Borrower Materials that may
be distributed to the Public Lenders and that (w) all such Borrower
Materials shall be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear prominently on
the first page thereof; (x) by marking Borrower Materials “PUBLIC,”
the Borrower shall be deemed to have authorized the Administrative Agent, the
Arranger, the L/C Issuers and the Lenders to treat such Borrower Materials as
not containing any material non-public information (although it may be
sensitive and proprietary) with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 10.07); (y) all Borrower
Materials 


 


76

















 


marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public
Side Information;” and (z) the Administrative Agent and the Arranger
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not designated “Public
Side Information.”


 


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


 


(a)                                  of the occurrence of any Default;


 


(b)                                 of any condition, event, or matter that
has resulted or could reasonably be expected to result in a Material Adverse
Effect;


 


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


 


(d)                                 of any material change in accounting
policies or financial reporting practices by any Loan Party or any Subsidiary
thereof, including any determination by
the Borrower referred to in Section 2.10(b).


 


Each notice pursuant to Section 6.03
shall be accompanied by a statement of a Responsible Officer of the Borrower
setting forth details of the occurrence referred to therein and stating what
action the Borrower has taken and proposes to take with respect thereto.  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 prior to delinquency, 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 Borrower or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property; and (c) all Indebtedness, as
and when due and payable, but subject to any subordination provisions contained
in any instrument or agreement evidencing such Indebtedness.


 


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.


 


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


 


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


 


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


 


6.10                        Inspection Rights. 
Permit representatives and independent contractors of the Administrative
Agent and each Lender to visit and inspect any of its properties, to examine
its corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants, all at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Borrower. 
Subject to the following sentence, only one such visit by the
Administrative Agent (together with any of its representatives and/or
independent contractors and any accompanying Lenders) shall be at the expense
of the Borrower, with any other such visits by the Administrative Agent or any
Lender being at the sole cost and expense of the Administrative Agent or such
Lender.  Notwithstanding the foregoing,
when an Event of Default exists the Administrative Agent or any Lender (or any
of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice.


 


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


 


6.12                        Covenant to Guarantee Obligations
and Give Security.  (a) Upon the formation or acquisition of
any new direct or indirect Subsidiary (other
than any CFC or a Subsidiary that is held directly or indirectly by a CFC)
by any Loan Party, then the Borrower shall, at the Borrower’s expense:


 


(i)                                     within 30 days (or such longer
period as the Administrative Agent may consent to in its sole discretion) after
such formation or acquisition, cause such Subsidiary, and cause each direct and
indirect parent of such Subsidiary (if it has not already done so), to duly
execute and deliver to the Administrative Agent a guaranty or 


 


78

















 


guaranty supplement, in form and substance
satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’
obligations under the Loan Documents,


 


(ii)                                  within 30 days (or such longer period as
the Administrative Agent may consent to in its sole discretion) after such
formation or acquisition, furnish to the Administrative Agent a description of
the real and personal properties of such Subsidiary, in detail satisfactory to
the Administrative Agent,


 


(iii)                               within 45 days (or such longer period as
the Administrative Agent may consent to in its sole discretion) after such
formation or acquisition, cause such Subsidiary and each direct and indirect
parent of such Subsidiary (if it has not already done so) to duly execute and
deliver to the Administrative Agent deeds of trust, trust deeds, deeds to
secure debt, mortgages, vessel mortgages, Security Agreement Supplements, other
supplements, control agreements and other security and pledge agreements, as
specified by and in form and substance satisfactory to the Administrative Agent
(including delivery of all Pledged Interests in and of such Subsidiary, and
other instruments of the type specified in Section 4.01(a)(iii) as
required by the Administrative Agent), securing payment of all the Obligations
of such Subsidiary or such parent, as the case may be, under the Loan Documents
and constituting Liens on all such real and personal properties; provided
that mortgages, and deeds of trust, as applicable, shall be required to be
delivered only with respect to owned real property with a fair market value of
at least $5,000,000, and no such mortgages or deeds of trust shall be required
with respect to any leasehold interest of Borrower in any real property,


 


(iv)                              within 30 days (or such longer period as
the Administrative Agent may consent to in its sole discretion) after such
formation or acquisition, cause such Subsidiary and each direct and indirect
parent of such Subsidiary (if it has not already done so) to take whatever
action (including the recording of mortgages and vessel mortgages, the filing
of Uniform Commercial Code financing statements, the giving of notices and the endorsement
of notices on title documents) may be necessary or reasonably requested by the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the deeds of
trust, trust deeds, deeds to secure debt, mortgages, Security Agreement
Supplements, other supplements and security and pledge agreements delivered
pursuant to this Section 6.12, enforceable against all third
parties in accordance with their terms, and


 


(v)                                 within 60 days (or such longer period as
the Administrative Agent may consent to in its sole discretion) after such
formation or acquisition, deliver to the Administrative Agent, upon the request
of the Administrative Agent in its sole discretion, a signed copy of a
favorable opinion, addressed to the Administrative Agent and the other Secured
Parties, of counsel for the Loan Parties acceptable to the Administrative Agent
as to the matters contained in clauses (i), (iii) and (iv) above,
and as to such other matters as the Administrative Agent may reasonably
request.


 


(b)                                 Upon the acquisition of any property by
any Loan Party, if such property, in the judgment of the Administrative Agent,
is required to be but shall not already be subject to a 


 


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perfected first priority
security interest in favor of the Administrative Agent for the benefit of the
Secured Parties under the terms of the Loan Documents, then the Borrower shall,
at the Borrower’s expense:


 


(i)                                     within 30 days (or such longer period as
the Administrative Agent may consent to in its sole discretion) after such
acquisition, furnish to the Administrative Agent a description of the property
so acquired in detail satisfactory to the Administrative Agent,


 


(ii)                                  within 30 days (or such longer period as
the Administrative Agent may consent to in its sole discretion) after such
acquisition, cause the applicable Loan Party to duly execute and deliver to the
Administrative Agent deeds of trust, trust deeds, deeds to secure debt,
mortgages, vessel mortgages, Security Agreement Supplements, other supplements,
control agreements and other security and pledge agreements, as specified by
and in form and substance reasonably satisfactory to the Administrative Agent,
securing payment of all the Obligations of the applicable Loan Party under the
Loan Documents and constituting Liens on all such properties; provided
that mortgages and deeds of trust, as applicable, shall be required to be
delivered only with respect to owned real property with a fair market value of
at least $5,000,000, and no such mortgages or deeds of trust shall be required
with respect to any leasehold interest of Borrower in any real property,


 


(iii)                               within 30 days (or such longer period as
the Administrative Agent may consent to in its sole discretion) after such
acquisition, cause the applicable Loan Party to take whatever action (including
the recording of mortgages and vessel mortgages, the filing of Uniform
Commercial Code financing statements, the giving of notices and the endorsement
of notices on title documents) may be necessary or reasonably requested by the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on such property, enforceable against all third parties, and


 


(iv)                              within 60 days (or such longer period as
the Administrative Agent may consent to in its sole discretion) after such acquisition,
deliver to the Administrative Agent, upon the request of the Administrative
Agent in its sole discretion, a signed copy of a favorable opinion, addressed
to the Administrative Agent and the other Secured Parties, of counsel for the
Loan Parties acceptable to the Administrative Agent as to the matters contained
in clauses (ii) and (iii) above and as to such
other matters as the Administrative Agent may reasonably request.


 


(c)                                  Upon the formation or acquisition after
the Closing Date of any CFC that is a Material Foreign Subsidiary or if any CFC
that did not previously constitute a Material Foreign Subsidiary becomes one
after the Closing Date, notify the Administrative Agent thereof within 30 days
(or such longer period as the Administrative Agent may consent to in its sole
discretion) after such acquisition, formation, or determination of materiality
and promptly (A) execute and deliver to the Administrative Agent such
amendments or addendums to the Security Agreement or such other documents as
the Administrative Agent deems necessary and requests in order to grant to the
Administrative Agent a perfected first priority security interest (subject only
to 


 


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applicable Permitted
Liens) in the Equity Interests of such Material Foreign Subsidiary that is
owned by the applicable Loan Party, (provided that in no event shall more than
66% of the total outstanding Equity Interests of any such Material Foreign
Subsidiary be required to be so pledged), and (B) deliver to the
Administrative Agent the certificates (if any) representing such Equity
Interests, together with undated stock powers or share transfer forms, in
blank, executed and delivered by a duly authorized officer of the applicable
Loan Party, and take such other action as may be necessary or reasonably
requested by the Administrative Agent to perfect the Lien of the Administrative
Agent thereon, (C) take such other actions as necessary under applicable
law (including foreign law) or reasonably requested by the Administrative Agent
to ensure the granting, perfection, and priority of such security interest, and
(D) deliver to the Administrative Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent, in each case
within a reasonable time following the applicable requests of the
Administrative Agent and the receipt of any applicable documents


 


(d)                                 Upon the request of the Administrative
Agent following the occurrence and during the continuance of a Default, the
Borrower shall, at the Borrower’s expense:


 


(i)                                     within 10 days after such request (or
such longer period as the Administrative Agent may consent to in its sole
discretion), furnish to the Administrative Agent a description of the real and
personal properties of the Loan Parties and their respective Subsidiaries in
detail satisfactory to the Administrative Agent,


 


(ii)                                  within 15 days after such request (or
such longer period as the Administrative Agent may consent to in its sole
discretion), duly execute and deliver, and cause each Subsidiary (other than any CFC or a Subsidiary that is held directly or
indirectly by a CFC) of the Borrower (if it has not already done so) to
duly execute and deliver, to the Administrative Agent deeds of trust, trust
deeds, deeds to secure debt, mortgages, leasehold mortgages, leasehold deeds of
trust, vessel mortgages, Security Agreement Supplements, other supplements,
control agreements and other security and pledge agreements, as specified by
and in form and substance satisfactory to the Administrative Agent (including
delivery of all Pledged Securities and Pledged Debt in and of such Subsidiary,
and other instruments of the type specified in Section 4.01(a)(iii) and
all title policies, surveys, and other items specified in Section 4.01(a)(iv) as
required by the Administrative Agent), securing payment of all the Obligations
of such Subsidiary under the
Loan Documents and constituting Liens on all such properties,


 


(iii)                               within 30 days after such request (or
such longer period as the Administrative Agent may consent to in its sole
discretion), take, and cause each Subsidiary (other than any CFC or a
Subsidiary that is held directly or indirectly by a CFC) of the Borrower to
take, whatever action (including the recording of mortgages and vessel
mortgages, the filing of Uniform Commercial Code financing statements, the
giving of notices and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Administrative Agent to vest in
the Administrative Agent (or in any representative of the Administrative Agent
designated by it) valid and subsisting Liens on the properties purported to be
subject to the deeds of trust, trust deeds, deeds to secure debt, mortgages,
leasehold mortgages, leasehold deeds of trust, 


 


81

















 


Security Agreement Supplements, other supplements and
security and pledge agreements delivered pursuant to this Section 6.12,
enforceable against all third parties in accordance with their terms,


 


(iv)                              within 60 days after such request (or
such longer period as the Administrative Agent may consent to in its sole
discretion), deliver to the Administrative Agent, upon the request of the
Administrative Agent in its sole discretion, a signed copy of a favorable
opinion, addressed to the Administrative Agent and the other Secured Parties,
of counsel for the Loan Parties acceptable to the Administrative Agent as to
the matters contained in clauses (ii) and (iii) above,
and as to such other matters as the Administrative Agent may reasonably
request, and


 


(v)                                 within 30 days after such request (or
such longer period as the Administrative Agent may consent to in its sole
discretion), take and cause each Subsidiary (other than any CFC or a Subsidiary
that is held directly or indirectly by a CFC) to take the actions specified in clause
(c) of this Section 6.12.


 


(e)                                  By September 30, 2010, all deposit
accounts of the Borrower and its Subsidiaries maintained in the United States
(other than those containing average collected balances which do not exceed,
for any such account, $250,000 and which in the ordinary course of business are
required to be established within a reasonable area of where any seismic crews
of Borrower or its Subsidiaries are located and no branch of any Lender is
located within such area) must be, and shall thereafter be at all times
maintained, with depositories that are Lenders.


 


(f)                                    By June 30, 2010 (or such later date
as the Administrative Agent may consent to in its sole discretion), Borrower
shall, at the Borrower’s expense:


 


(i)                                     deliver to the Administrative Agent (A) such
documents as the Administrative Agent deems necessary and requests in order to
grant to the Administrative Agent a perfected first priority security interest
(subject only to applicable Permitted Liens) in the Equity Interests of each
Material Foreign Subsidiary existing as of the Closing Date (provided that in
no event shall more than 66% of the total outstanding Equity Interests of any
such Material Foreign Subsidiary be required to be so pledged) and (B) the
certificates (if any) representing such Equity Interests, together with undated
stock powers or share transfer forms, in blank, executed and delivered by a
duly authorized officer of the applicable Loan Party,


 


(ii)                                  take such other action as may be
necessary or, in the reasonable opinion of the Administrative Agent, desirable
to perfect the Lien of the Administrative Agent thereon, and such other actions
as necessary under applicable law (including foreign law) or reasonably
requested by the Administrative Agent to ensure the granting, perfection, and
priority of such security interest, and


 


(iii)                               deliver to the Administrative Agent a favorable
opinion of appropriate local counsel to the Loan Parties in connection with the
items described in Section 6.12(f)(i) and (ii) above,
addressed to the Administrative Agent and each Lender,


 


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as to the matters concerning the Loan Parties and the
Loan Documents as the Administrative Agent may reasonably request.


 


(g)           At any time upon request of the Administrative Agent,
promptly execute and deliver any and all further instruments and documents and
take all such other action as the Administrative Agent may deem necessary or
reasonably request in obtaining the full benefits of, or (as applicable) in
perfecting and preserving the Liens of, such guaranties, deeds of trust, trust
deeds, deeds to secure debt, mortgages, leasehold mortgages, leasehold deeds of
trust, Security Agreement Supplements, other supplements and other security and
pledge agreements.


 


6.13        Compliance with Environmental Laws.  Comply, and
cause all lessees and other Persons operating or occupying its properties to
comply, in all material respects, with all applicable Environmental Laws and
Environmental Permits; timely obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct any investigation,
study, sampling and testing, and undertake any cleanup, removal, remedial or
other action necessary to remove and clean up all Hazardous Materials from any
of its properties, in accordance in all material respects with the requirements
of all Environmental Laws; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such circumstances in
accordance with GAAP.


 


6.14        Preparation of Environmental Reports.  At the
request of the Required Lenders from time to time, but not more often than once
per year per property, provide to the Lenders within 60 days after such
request, at the expense of the Borrower, a Phase I environmental site
assessment report for any of its properties described in such request, prepared
by an environmental consulting firm acceptable to the Administrative Agent,
indicating the presence or absence of Hazardous Materials and the estimated
cost of any compliance, removal or remedial action in connection with any
Hazardous Materials on such properties, and if any such report indicates the
presence of Hazardous Materials not in compliance with Environmental Laws, such
Phase II environmental site assessment report(s) as may be reasonably
requested by the Administrative Agent.


 


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


 


83

















 


connection with any Loan
Document to which any Loan Party or any of its Subsidiaries is or is to be a
party, and cause each of its Subsidiaries to do so.


 


6.16        Material Contracts.  Perform and
observe all the terms and provisions of each Material Contract to be performed
or observed by it, , enforce each such Material Contract in accordance with its
terms, take all such action to such end as may be from time to time requested
by the Administrative Agent and, upon request of the Administrative Agent, make
to each other party to each such Material Contract such demands and requests
for information and reports or for action as any Loan Party or any of its
Subsidiaries is entitled to make under such Material Contract, and cause each
of its Subsidiaries to do so, except,
in any case, where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.


 


6.17        Designation
as Senior Debt.  Designate all Obligations as “Designated
Senior Indebtedness” under any subordinated Indebtedness of any Loan Party.


 


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 Borrower shall not, nor shall it permit any Subsidiary to, directly or
indirectly:


 


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


 


(a)           Liens pursuant to any Loan Document;


 


(b)           Liens existing on the date hereof and listed on Schedule
5.08(b) and any renewals or extensions thereof, provided that (i) the
property covered thereby is not changed, (ii) the amount secured or
benefited thereby is not increased except as contemplated by Section 7.02(d),
(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 7.02(d);


 


(c)           Liens for taxes not yet due or as to which the period
of grace (not to exceed 90 days), if any, related thereto has not expired, 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;


 


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(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 leases constituting 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);


 


(i)            Liens securing Indebtedness permitted under Section 7.02(f);
provided that (i) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and (ii) the
Indebtedness secured thereby does not exceed the cost or fair market value, whichever
is lower, of the property being acquired on the date of acquisition;


 


(j)            Liens on cash or Cash Equivalents securing
reimbursement obligations under letters of credit outstanding on the Closing
Date so long as such letters of credit are permitted by Section 7.02(d)(ii);


 


(k)           Liens on amounts held in escrow accounts pursuant to
the terms of acquisition agreements in connection with Permitted Acquisitions;


 


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


 


(m)          non-exclusive licenses of patents, trademarks and
other intellectual property rights granted by Borrower or any of its
Subsidiaries in the ordinary course of business and not interfering in any
respect with the ordinary conduct of the business of Borrower or such
Subsidiary;


 


(n)           Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection with
the importation of goods in the ordinary course of business;


 


(o)           Liens on cash or Cash Equivalents in an aggregate
amount not to exceed $15,000,000 at any time securing Indebtedness permitted by
Section 7.02(h);


 


(p)           Liens for salvage or general average for amounts which
are not delinquent 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;


 


85

















 


(q)           Liens incurred in the ordinary course of business of
the Borrower or any Subsidiary arising from vessel chartering, operations,
drydocking, maintenance, the furnishing of supplies or fuel to vessels and
crews wages, in each case (i) of a maritime lien nature and (ii)  for
amounts which are not delinquent 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; and


 


(r)            other Liens securing Indebtedness or other obligations
outstanding in an aggregate principal amount not to exceed $10,000,000, provided
that no such Lien shall extend to or cover any Collateral (other than cash
proceeds of Collateral).


 


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


 


(a)           obligations (contingent or otherwise) 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 fluctuations in
interest rates or foreign exchange rates 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;


 


(b)           Indebtedness of a Subsidiary of the Borrower or the
Borrower owed to the Borrower or a Wholly
Owned Subsidiary of the Borrower, which Indebtedness shall (i) in
the case of Indebtedness owed to a Loan Party by a Subsidiary that is not a
Loan Party, be evidenced by a promissory note and be delivered to the
Administrative Agent as Collateral in accordance with the Security Agreement, (ii) be
on terms (including subordination terms) acceptable to the Administrative Agent
and (iii) be otherwise permitted under the provisions of Section 7.03;


 


(c)           Indebtedness under the Loan Documents;


 


(d)           (i) Indebtedness outstanding on the date hereof
and listed on Schedule 7.02 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 and the direct or any contingent obligor with
respect thereto is not changed, as a result of or in connection with such
refinancing, refunding, renewal or extension; and provided, still  further, that the terms
relating to principal amount, amortization, maturity, collateral (if any) and
subordination (if any), and other material terms taken as a whole, of any such
refinancing, refunding, renewing or extending Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith,
are no less favorable in any material respect to the Loan Parties or the
Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest
rate applicable to any such refinancing, refunding, renewing or extending Indebtedness
does not exceed the then applicable market interest rate, and (ii) letters
of credit outstanding on the date hereof and listed on Schedule 7.02 but
not any renewals, extensions or replacements thereof;


 


86

















 


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


 


(f)            Indebtedness in respect of Capitalized 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 Indebtedness at any one
time outstanding shall not exceed $25,000,000;


 


(g)           Indebtedness in an aggregate principal amount not to
exceed $25,000,000 at any time
outstanding;


 


(h)           Indebtedness in respect of letters of credit in an
aggregate face amount not to exceed $15,000,000 at any time outstanding
supporting payment obligations incurred in the ordinary course of business of
the Borrower and its Subsidiaries;


 


(i)            subordinated Indebtedness (including Indebtedness
issued to a seller in connection with a Permitted Acquisition); provided
that (i) such subordinated Indebtedness (including interest thereon) is
expressly subordinated to the Obligations on terms (including payment and
remedies/standstill provisions) acceptable to the Administrative Agent in its
sole discretion, (ii) such subordinated Indebtedness does not mature, and
is not subject to repurchase, repayment, redemption, sinking fund obligation or
amortization, in each case, prior to the date that is six months after the
Maturity Date, (iii) such subordinated Indebtedness is not secured by any
assets of the Borrower or its Subsidiaries, (iv) such subordinated Indebtedness
contains no financial maintenance covenants and otherwise contains covenants
and events of default and are benefited by guarantees, if any, which are no
less favorable to the Borrower and its Subsidiaries than the covenants and
events of default and guarantees contained in this Agreement and the other
applicable Loan Documents, (v) such subordinated Indebtedness is not
exchangeable or convertible into any other Indebtedness of the Borrower or its
Subsidiaries or any preferred stock or other Equity Interests (other than
common equity of the Borrower) that is not otherwise permitted under the terms
of this Agreement, (vi) after giving effect to the incurrence of such
subordinated Indebtedness, the Consolidated Leverage Ratio would be less than
or equal to 2.75:1.00 and (vii) no Default or Event of Default shall have
occurred and be continuing at the time of incurrence thereof or would result
therefrom;


 


(j)            Indebtedness not yet due that arises pursuant to
customary provisions in acquisition agreements relating to indemnification, “earn-out”
payments, payments under non-competition agreements, purchase price adjustments
or similar adjustments in connection with Permitted Acquisitions or
dispositions of assets permitted hereunder;


 


(k)           Indebtedness of the Loan Parties arising under
insurance premium financing arrangements entered into in the ordinary course of
business in an aggregate principal amount not to exceed $5,000,000 at any time
outstanding;


 


(l)            Debt in an aggregate principal amount not to exceed
$1,250,000 at any time outstanding consisting of promissory notes issued by one
or more Loan Parties to current or former officers, directors, and employees,
or their spouses or estates to purchase or redeem capital stock or options of
the Borrower; provided that any such promissory note is subordinated 


 


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to the Obligations under
this Agreement on terms and conditions reasonably acceptable to the
Administrative Agent;


 


(m)          obligations in respect of performance, stay, customs,
appeal and surety bonds and performance and completion guarantees and similar
obligations or obligations in respect of letters of credit related thereto (to
the extent permitted hereunder), in each case arising in the ordinary course of
business; and


 


(n)           Indebtedness in respect of netting services, overdraft
protections and similar arrangements, in each case in connection with cash
management and deposit accounts.


 


7.03        Investments.  Make or hold any Investments, except:


 


(a)           Investments held by the Borrower and its Subsidiaries
in the form of Cash Equivalents;


 


(b)           advances to officers, directors and employees of the
Borrower and Subsidiaries in an aggregate amount not to exceed $500,000 at any time outstanding, for
travel, entertainment, relocation and analogous ordinary business purposes;


 


(c)           (i) Investments by the Borrower and its
Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional
Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional
Investments by Subsidiaries of the Borrower that are not Loan Parties in other
Subsidiaries that are not Loan Parties and (iv) so long as no Default has
occurred and is continuing or would result from such Investment, additional
Investments by the Loan Parties in Wholly
Owned Subsidiaries that are not Loan Parties in an aggregate outstanding
amount not to exceed $25,000,000;


 


(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 7.02;


 


(f)            Investments existing on the date hereof (other than
those referred to in Section 7.03(c)(i)) and set forth on Schedule
5.08(e);


 


(g)           the purchase or other acquisition of all of the Equity
Interests in, or all or substantially all of the property of, any Person; provided
that, with respect to each purchase or other acquisition made pursuant to this Section 7.03(g):


 


(i)            the Borrower or applicable Subsidiary shall comply
with the requirements of Section 6.12;


 


(ii)           the Borrower or any Subsidiary (or if any Loan Party
is a party thereto, such Loan Party) shall be the surviving Person and no
Change in Control shall have been effected thereby;


 


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(iii)          the lines of business of the Person to be (or the
property of which is to be) so purchased or otherwise acquired shall be
substantially  similar to the lines of
business as one or more of the principal businesses of the Borrower and its
Subsidiaries in the ordinary course;


 


(iv)          such purchase or acquisition shall not be opposed by
the board of directors or similar governing body of the Person or assets being
acquired;


 


(v)           such purchase or other acquisition shall not include
or result in any contingent liabilities that could reasonably be expected to
have a Material Adverse Effect (as determined in good faith by the board of
directors (or the persons performing similar functions) of the Borrower or such
Subsidiary if the board of directors is otherwise approving such transaction
and, in each other case, by a Responsible Officer);


 


(vi)          (A) the total cash and noncash consideration
(including the fair market value of all Equity Interests issued or transferred
to the sellers thereof, all indemnities, earnouts and other contingent payment
obligations to, and the aggregate amounts paid or to be paid under noncompete,
consulting and other affiliated agreements with, the sellers thereof and all
assumptions of debt, liabilities and other obligations in connection therewith)
paid by or on behalf of the Borrower and its Subsidiaries for any such purchase
or other acquisition, when aggregated with the total cash and noncash
consideration paid by or on behalf of the Borrower and its Subsidiaries for all
other purchases and other acquisitions made by the Borrower and its
Subsidiaries pursuant to this Section 7.03(g), shall not exceed
$100,000,000 in any twelve month period and (B) the total cash
consideration paid by or on behalf of the Borrower and its Subsidiaries for any
such purchase or other acquisition, when aggregated with the total cash
consideration paid by or on behalf of the Borrower and its Subsidiaries for all
other purchases and other acquisitions made by the Borrower and its
Subsidiaries pursuant to this Section 7.03(g), shall not exceed
$35,000,000 in any twelve month period;


 


(vii)         (A) immediately before and immediately after
giving pro forma effect to any such purchase or other acquisition, no Default
shall have occurred and be continuing and (B) immediately after giving
effect to such purchase or other acquisition, the Borrower and its Subsidiaries shall be in pro forma compliance
with all of the covenants set forth in Section 7.11, such compliance to
be determined on the basis of the financial information most recently delivered
to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or
(b) as though such purchase or other acquisition had been
consummated as of the first day of the fiscal period covered thereby; and


 


(viii)        the Borrower shall have delivered to the
Administrative Agent and each Lender, at least five Business Days prior to the
date on which any such purchase or other acquisition is to be consummated, a
certificate of a Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in clauses (ii) through (vi) of
this clause (g) have been satisfied or will be satisfied on or
prior to the consummation of such purchase or other acquisition;


 


(h)           Swap Contracts permitted under Section 7.02(a);
and


 


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(i)            other Investments not exceeding $15,000,000 in the aggregate in any
fiscal year of the Borrower.


 


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


 


(a)           Any Subsidiary may merge with (i) the Borrower, provided
that the Borrower shall be the continuing or surviving Person, or (ii) any
one or more other Subsidiaries, provided that when any Wholly Owned
Subsidiary is merging with another Subsidiary, such Wholly Owned Subsidiary
shall be the continuing or surviving Person, and when any Loan Party is merging with another
Subsidiary, such Loan Party shall
be the continuing or surviving Person;


 


(b)           any Loan Party may Dispose of
all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower
or to another Loan Party;


 


(c)           any Subsidiary that is not a Loan Party may dispose of
all or substantially all its assets (including any Disposition that is in the
nature of a liquidation) to (i) another Subsidiary that is not a Loan
Party, so long as such other Subsidiary is a Wholly Owned Subsidiary or (ii) to
a Loan Party; and


 


(d)           in connection with any acquisition permitted under Section 7.03,
the Borrower or any Subsidiary of the Borrower may merge into or consolidate
with any other Person or permit any other Person to merge into or consolidate
with it; provided that (i) the Person surviving such merger shall be the
Borrower or a Wholly Owned Subsidiary of the Borrower and (ii) in the case
of any such merger to which the Borrower or any other Loan Party is a party,
the Borrower or such other Loan Party is the surviving Person.


 


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 provided that the lease by any Loan Party as lessor of equipment to
any third party that is not an Affiliate of such Loan Party shall be permitted
hereunder only so long as such Loan Party retains title to and ownership of
such equipment at all times and the book value of all such equipment subject to
such leases does not exceed, in the aggregate, $25,000,000;


 


(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)           (i) Dispositions of property by any Subsidiary to
the Borrower or to a Wholly Owned Subsidiary; provided that if the
transferor of such property is a Guarantor, the transferee 


 


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thereof must either be
the Borrower or a Guarantor; (ii) intercompany leases of equipment and
related assets by a Loan Party to a Subsidiary that is not a Loan Party in the
ordinary course of business so long as such Loan Party retains title to and
ownership of such equipment and related assets at all times, and (iii) intercompany
leases of equipment and related assets by a Subsidiary that is not a Loan Party
to any other Subsidiary in the ordinary course of business;


 


(e)           Dispositions permitted by Section 7.04;


 


(f)            non-exclusive licenses of IP Rights in the ordinary
course of business and substantially consistent with past practice;


 


(g)           Dispositions by the Borrower and its Subsidiaries not
otherwise permitted under this Section 7.05; provided that (i)
at the time of such Disposition, no Default shall exist or would result from
such Disposition, and (ii) the aggregate book value of all property
Disposed of in reliance on this clause (g) in shall not exceed (A) $2,000,000
for any Disposition or series of related Dispositions or (B) $10,000,000
for all Dispositions on a cumulative basis since the Closing Date;


 


(h)           the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection with the
compromise or collection thereof; and


 


(i)            the sale of non-strategic assets acquired as part of a
Permitted Acquisition that the Borrower or such Subsidiary intended to sell at
the time of such Permitted Acquisition; provided that such assets are
identified in writing to the Administrative Agent within 60 days after the date
of such Permitted Acquisition and, if the fair market value of such assets with
respect to any Permitted Acquisition is greater than $25,000,000, the
Administrative Agent shall have consented to such sale;


 


provided, however,
that any Disposition pursuant to Section 7.05(a) through Section 7.05(c),
Section 7.05(d)(ii) and (iii),  and
Section 7.05(f) through Section 7.05(i) 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, or issue or sell any Equity Interests or
accept any capital contributions, except that, so long as no Default shall have
occurred and be continuing at the time of any action described below or would
result therefrom:


 


(a)           each Subsidiary may make Restricted Payments to the
Borrower, any Subsidiaries of the Borrower that are Guarantors and any other
Person that owns a direct 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 Borrower and each Subsidiary may declare and make
dividend payments or other distributions payable solely in the common stock or
other common Equity Interests of such Person;


 


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(c)           the Borrower and each Subsidiary may purchase, redeem
or otherwise acquire its common Equity Interests with the proceeds received
from the substantially concurrent issue of new common Equity Interests;


 


(d)           so long as no Default or Event of Default shall exist
or be continuing, the Borrower may purchase capital stock or options from
present or former employees, officers, directors or consultants of the Loan
Parties or their respective estates, spouses or family members upon the death,
disability or termination of employment of such employee, officer, director or
consultant (provided that the aggregate amount of payments under this clause
shall not exceed $1,250,000 in any fiscal year plus proceeds of key-man life
insurance maintained by the Borrower on the life of the Person with respect to
whom such repurchase is made; provided further that the consideration for the
purchase of capital stock or options pursuant to this clause may include the
issuance of another equity security); and


 


(e)           so long as no Default or Event of Default shall exist
or be continuing, the Borrower may make customary payments of cash in lieu of
fractional shares in connection with any transactions otherwise permitted
hereunder.


 


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


 


7.08        Transactions with Affiliates.  Enter into
any transaction of any kind with any Affiliate of the Borrower, whether or not
in the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate; provided that
the foregoing restriction shall not apply to (a) transactions between or
among the Loan Parties, (b) the payment of reasonable and customary
directors fees and indemnities to members of the board of directors (or similar
governing body) of the Borrower and its Subsidiaries in the ordinary course of
business, (c) reimbursement of reasonable and customary out-of-pocket
expenses of the members of the board of directors (or similar governing body)
of the Borrower and its Subsidiaries in the ordinary course of business, (d) any
employment agreements entered into by the Borrower or any of its Subsidiaries
in the ordinary course of business, any subscription agreement or similar
agreement pertaining to the repurchase of Equity Interests pursuant to put/call
rights or similar rights with employees, officers or directors, and any
employee compensation, benefit plan or arrangement, any health, disability or
similar insurance plan which covers employees, and any reasonable employment
contract and transaction pursuant thereto; (e) transactions between or
among Subsidiaries not involving any Loan Party, and (f) out-of-pocket
costs and expenses due to the Permitted Investors under the Kelso Agreement (as
in effect on the Closing Date).


 


7.09        Burdensome Agreements.  Enter into or
permit to exist any Contractual Obligation (other than this Agreement or any
other Loan Document) that (a) limits the ability (i) of any
Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to
otherwise transfer property to or invest in the Borrower or any Guarantor,
except for any agreement in effect (A) on the date hereof and set forth on
Schedule 7.09 or (B) at the time any Subsidiary becomes a
Subsidiary of the Borrower, so long as such agreement was not entered into
solely in


 


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contemplation of such
Person becoming a Subsidiary of the Borrower, (ii) of any Subsidiary to
Guarantee the Indebtedness of the Borrower or (iii) of the Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on property of
such Person; provided, however, that this clause (iii) shall
not prohibit (A) any negative pledge incurred or provided in favor of any
holder of Indebtedness permitted under Section 7.02(f) solely
to the extent any such negative pledge relates to the property financed by or
the subject of such Indebtedness, (B) any restrictions by reason of
customary provisions restricting assignments, subletting or other transfers
contained in leases, licenses, joint venture agreements and similar agreements
entered into in the ordinary course of business, (C) any restrictions in
agreements entered into in the ordinary course of business in accordance with
customary industry practice; provided further that any such restrictions
contained therein relate only to such agreements and that any such
restrictions, individually or in the aggregate, shall not materially affect any
Loan Party’s ability to pay the Obligations, and (D) any restrictions on
net worth imposed by customers or suppliers under contracts entered into in the
ordinary course of business with customary industry practice; or (b) requires
the grant of a Lien to secure an obligation of such Person if a Lien is granted
to secure the Obligations.


 


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


 


7.11        Financial Covenants.  (a) Consolidated
Interest Coverage Ratio.  Permit the
Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the
Borrower to be less than 2.50 to 1.00.


 


(b)           Consolidated Senior Secured Leverage Ratio. 
Permit the Consolidated Senior Secured Leverage Ratio at any time during
any period of four fiscal quarters of the Borrower to be greater than
2.00:1.00.


 


(c)           Pro-Forma Adjustments.  For purposes
of calculating the Consolidated Interest Coverage Ratio and/or the Consolidated
Leverage Ratio and/or the Consolidated Senior Secured Leverage Ratio as of any
date, Consolidated EBITDA and Consolidated Interest Charges shall be calculated
on a pro forma basis assuming that (without duplication) all Permitted
Acquisitions made and (without duplication) all Dispositions completed, and any
Indebtedness incurred or repaid in connection therewith, and any Indebtedness
incurred or repaid in connection with the Transaction, during the four
consecutive fiscal quarters then most recently ended have been made or incurred
or repaid on the first day of such period, with such adjustments thereto as are
required to reflect nonrecurring items (both positive and negative) that are
permitted to be adjusted in accordance with Regulation S-X under the Securities
Act of 1933 or as approved by the Administrative Agent.


 


7.12        Amendments of Organization Documents.  Amend any of
its Organization Documents in any manner adverse in any material respects to
the rights or interests of the Lenders.


 


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7.13        Accounting Changes.  Make any
change in (a) accounting policies or reporting practices, except as
required by GAAP, or (b) fiscal year.


 


7.14        Prepayments, Etc. of Indebtedness.  Prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any subordination
terms of, any Indebtedness, except (a) the prepayment of the Credit
Extensions in accordance with the terms of this Agreement, (b) regularly
scheduled or required repayments or redemptions of Indebtedness set forth in Schedule
7.02 and refinancings and refundings of such Indebtedness in compliance
with Section 7.02(d), and (c) conversion to common stock of the
Borrower of any convertible debt instrument permitted hereunder and, so long as
no Event of Default shall exist or be continuing, customary payments of cash in
lieu of fractional shares in connection therewith.


 


7.15        Amendment, Etc. of Senior Notes Documents and Indebtedness.  (a) Amend,
modify or change in any manner any term or condition of any Senior Notes
Document, except for any refinancing, refunding, renewals or extensions thereof
permitted by Section 7.02(d) or give any consent, waiver or
approval thereunder, in each case in any manner that would modify or affect the
Senior Notes in a manner that would not be permitted by this Section if
accomplished via an amendment or that is materially adverse to the Lenders, (b) waive
any default under or any breach of any term or condition of any Senior Notes
Document in each case in any manner that is materially adverse to the Lenders, (c) take
any other action in connection with any Senior Notes Document that would impair
the rights or interests of the Administrative Agent or any Lender or (d) amend,
modify or change in any manner any term or condition of any other Indebtedness
set forth in Schedule 7.02, except for any refinancing, refunding,
renewal or extension thereof permitted by Section 7.02(d).


 


7.16        Assets of Non-Loan Parties.  Permit the
aggregate book value of assets (other than (i) any prepaid expenses or
similar amounts required to capitalized in accordance with GAAP and (ii) any
accounts receivable that are invoiced in the ordinary course of business and in
a manner consistent with industry practices and not outstanding for more than
60 days from the applicable invoice due date) of all Subsidiaries that are not
Loan Parties to exceed, in the aggregate, $50,000,000.


 


ARTICLE
VIII


EVENTS
OF DEFAULT AND REMEDIES


 


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


 


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


 


(b)           Specific Covenants.  (i) The Borrower fails to perform
or observe any term, covenant or agreement contained in either Section 6.11
or Article VII or (ii) the
Borrower fails to 


 


94

















 


perform
or observe any term, covenant or agreement contained in any of Section 6.01, 6.02(a) and (b), 6.05,
6.10 or 6.12, and such
failure continues for 5 Business Days; or


 


(c)           Other Defaults.  Any Loan
Party fails to perform or observe any other covenant or agreement (not
specified in Section 8.01(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


 


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


 


(e)           Cross-Default.  (i) Any
Loan Party or any Subsidiary thereof (A) fails to make any payment when
due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to
observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or
a trustee or agent on behalf of such holder or holders or 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 a Loan Party or any
Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract)
or (B) any Termination Event (as so defined) under such Swap Contract as to
which a Loan Party or any Subsidiary thereof is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by such Loan Party
or such Subsidiary as a result thereof is greater than the Threshold Amount; or


 


(f)            Insolvency Proceedings, Etc. 
Any Loan Party or any Subsidiary thereof 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


 


95

















 


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


 


(h)           Judgments.  There is
entered against any Loan Party or any Subsidiary thereof (i) one or more
final judgments or orders for the payment of money in an aggregate amount (as
to all such judgments and orders) exceeding the Threshold Amount (to the extent
not covered by independent third-party insurance as to which the insurer has
been notified of the potential claim and does not dispute coverage), or (ii) any
one or more non-monetary final judgments that 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
Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan
or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the
Borrower or any ERISA Affiliate fails to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in
an aggregate amount in excess of the Threshold Amount; or


 


(j)            Invalidity of Loan Documents. 
Any provision of any Loan Document, at any time after its execution and
delivery and for any reason other than 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
provision of any Loan Document, or purports to revoke, terminate or rescind any
provision of any Loan Document; or


 


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


 


(l)            Collateral Documents.  Any
Collateral Document after delivery thereof pursuant to Section 4.01
or 6.12 shall for any reason (other than pursuant to the terms thereof)
cease to create a valid and perfected first priority Lien (subject to Liens
permitted by Section 7.01) on any material portion of the Collateral
purported to be covered thereby; or


 


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


 


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


 


96

















 


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


 


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


 


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


 


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


 


8.03        Application of Funds.  After the
exercise of remedies provided for in Section 8.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 8.02), any amounts received on
account of the Obligations shall, subject to the provisions of Section 2.15
and 2.16, 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 Issuers (including fees, charges and disbursements of
counsel to the respective Lenders and the L/C Issuers (including fees and time
charges for attorneys who may be employees of any Lender or any L/C Issuer)
arising under the Loan Documents and amounts payable under Article III,
ratably among them in proportion to the respective amounts described in this clause Second
payable to them;


 


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


 


Fourth, to payment of
that portion of the Obligations constituting unpaid principal of the Loans, L/C
Borrowings and Obligations then owing under Secured Hedge Agreements and
Secured Cash Management Agreements, ratably among the Lenders, the L/C Issuers,
the Hedge Banks 


 


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and the Cash Management
Banks 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 Issuers, 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 by the
Borrower pursuant to Sections 2.03 and 2.15; and


 


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


 


Subject to Section 2.03(c) and
2.15, 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.


 


Notwithstanding the
foregoing, Obligations arising under Secured Cash Management Agreements and
Secured Hedge Agreements shall be excluded from the application described above
if the Administrative Agent has not received written notice thereof, together
with such supporting documentation as the Administrative Agent may request,
from the applicable Cash Management Bank or Hedge Bank, as the case may be.  Each Cash Management Bank or Hedge Bank not a
party to the Credit Agreement that has given the notice contemplated by the
preceding sentence shall, by such notice, be deemed to have acknowledged and
accepted the appointment of the Administrative Agent pursuant to the terms of Article IX
hereof for itself and its Affiliates as if a “Lender” party hereto.


 


ARTICLE
IX


ADMINISTRATIVE
AGENT


 


9.01        Appointment and Authority.  (a) Each
of the Lenders and the L/C Issuers hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto.  The
provisions of this Article are solely for the benefit of the Administrative
Agent, the Lenders and the L/C Issuers, and the Borrower shall not  have
rights as a third party beneficiary of any of such provisions.


 


(b)           The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (including in its capacities as a potential
Hedge Bank and a potential Cash Management Bank) and the L/C Issuers hereby
irrevocably appoints and authorizes the Administrative Agent to act as the
agent of such Lender and such L/C Issuer for purposes of acquiring, holding and
enforcing any and all Liens on Collateral granted by any of the Loan Parties to
secure any of the Obligations, together with such powers and discretion as are
reasonably incidental thereto.  In this
connection, the Administrative Agent, as “collateral agent” and any
co-agents, sub-agents and attorneys-in-fact appointed by the Administrative
Agent 


 


98

















 


pursuant to Section 9.05
for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this Article IX and Article X
(including Section 10.04(c), as though such co-agents, sub-agents
and attorneys-in-fact were the “collateral agent” under the Loan
Documents) as if set forth in full herein with respect thereto.


 


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 Borrower or any Subsidiary or
other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.


 


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


 


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


 


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


 


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


 


(d)           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 unless and until
notice describing such Default is given to the Administrative Agent by the
Borrower, a Lender or an L/C Issuer.


 


99

















 


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


 


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


 


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


 


9.06        Resignation of Administrative Agent.  The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuers and the Borrower. 
Upon receipt of any such notice of resignation, the Required Lenders
shall have the right to appoint a successor subject, so long as no Default
exists, to the consent of the Borrower (not to be unreasonably withheld,
conditioned, or delayed), 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, shall have been consented to (if
applicable) by the Borrower, and shall have accepted such appointment within
30 days after the 


 


100

















 


retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may on behalf of the Lenders and the L/C Issuers, and without consent of the
Borrower, appoint a successor Administrative Agent 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; provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (a) 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 Issuers 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 (b) 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 applicable L/C Issuer directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this
Section.  Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). 
The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. 
After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 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 Administrative Agent.


 


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


 


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


 


101

















 


based upon this
Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.


 


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


 


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


 


(a)           to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the L/C Issuers and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, the L/C Issuers and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders, the L/C
Issuers and the Administrative Agent under Sections 2.03(h) and (i),
2.09 and 10.04) allowed in such judicial proceeding; and


 


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


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender and the L/C
Issuers to make such payments to the Administrative Agent and, if the
Administrative Agent shall consent to the making of such payments directly to
the Lenders and the L/C Issuers, 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.


 


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


 


9.10        Collateral and Guaranty Matters.  Each of the
Lenders (including in its capacities as a potential Cash Management Bank and a
potential Hedge Bank) and the L/C Issuers irrevocably authorize the Administrative
Agent, at its option and in its discretion,


 


(a)           to release any Lien on any property granted to or held
by the Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and


 


102






 












 


payment in full of all
Obligations (other than (A) contingent indemnification obligations and (B) obligations
and liabilities under Secured Cash Management Agreements and Secured Hedge
Agreements as to which arrangements satisfactory to the applicable Cash
Management Bank of Hedge Bank shall have been made) and the expiration or
termination of all Letters of Credit (other than Letters of Credit as to which
other arrangements satisfactory to the Administrative Agent and the L/C Issuers
shall have been made), (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan Document,
or (iii) if approved, authorized or ratified in writing in accordance with
Section 10.01;


 


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


 


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


 


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


 


9.11        Secured Cash Management Agreements and Secured Hedge Agreements. 
No Cash Management Bank or Hedge Bank that obtains the benefits of Section 8.03,
any Guaranty or any Collateral by virtue of the provisions hereof or of any
Guaranty or any Collateral Document shall have any right to notice of any
action or to consent to, direct or object to any action hereunder or under any
other Loan Document or otherwise in respect of the Collateral (including the
release or impairment of any Collateral) other than in its capacity as a Lender
and, in such case, only to the extent expressly provided in the Loan
Documents.  Notwithstanding any other
provision of this Article IX to the contrary, the Administrative
Agent shall not be required to verify the payment of, or that other
satisfactory arrangements have been made with respect to, Obligations arising under
Secured Cash Management Agreements and Secured Hedge Agreements unless the
Administrative Agent has received written notice of such Obligations, together
with such supporting documentation as the Administrative Agent may request,
from the applicable Cash Management Bank or Hedge Bank, as the case may be.


 


ARTICLE
X


MISCELLANENOUS


 


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 Borrower or any other Loan Party therefrom, shall be effective
unless in writing signed by the Required Lenders and the 


 


103

















 


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


 


(a)           waive any condition set forth in Section 4.01
(other than Section 4.01(d) or (e)), or, in the case of
the initial Credit Extension, Section 4.01, without the written
consent of each Lender;


 


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


 


(c)           postpone any date fixed by this Agreement or any other
Loan Document for any payment
(excluding mandatory prepayments) of principal, interest, fees or other
amounts due to the Lenders (or any of them);


 


(d)           reduce the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees
or other amounts payable hereunder or under any other Loan Document without the
written consent of each Lender entitled to such amount; provided, however,
that only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default
Rate” or to waive any obligation of the Borrower to pay interest or Letter
of Credit Fees at the Default Rate or (ii) to
amend any financial covenant hereunder (or any defined term used therein) even
if the effect of such amendment would be to reduce the rate of interest on any
Loan or L/C Borrowing or to reduce any fee payable hereunder;


 


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


 


(f)            change any provision of this Section 10.01
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;


 


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


 


(h)           release all or substantially all of the value of the
Guaranty, without the written consent of each Lender, except to the extent the
release of any Subsidiary from the Guaranty is permitted pursuant to Section 9.10
(in which case such release may be made by the Administrative Agent acting
alone);


 


and provided, further,
that (i) no amendment, waiver or consent shall, unless in writing and
signed by the applicable L/C Issuer in addition to the Lenders required above,
affect the rights or duties of such L/C Issuer under this Agreement or any
Issuer Document relating to any Letter of Credit issued or to be issued by it, amend
Section 1.08 or the definition of “Alternative Currency”; (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 


 


104

















 


Swing Line Lender under this
Agreement; (iii) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required
above, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document;  and (iv) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto.  Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, (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.


 


If any Lender does not
consent to a proposed amendment, waiver, consent or release with respect to any
Loan Document that requires the consent of each Lender and that has been
approved by the Required Lenders, the Borrower may replace such non-consenting
Lender in accordance with Section 10.13; provided that such
amendment, waiver, consent or release can be effected as a result of the
assignment contemplated by such Section (together with all other such
assignments required by the Borrower to be made pursuant to this paragraph).


 


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


 


(i)            if to the Borrower, the Administrative Agent, an 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).


 


105

















 


(b)           Electronic Communications. 
Notices and other communications to the Lenders and the L/C Issuers
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 any L/C Issuer pursuant to Article II if
such Lender or such L/C Issuer, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by
electronic communication.  The
Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.


 


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


 


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


 


(d)           Change of Address, Etc.  Each of the
Borrower, the Administrative Agent, each 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 


 


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communications hereunder
by notice to the Borrower, the Administrative Agent, each other 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 Law,
including United States Federal and state securities Laws, to make reference to
Borrower Materials that are not made available through the “Public Side
Information” portion of the Platform and that may contain material non-public
information with respect to the Borrower or its securities for purposes of
United States Federal or state securities laws.


 


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


 


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


 


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 L/C
Issuers; provided, however, that the foregoing shall not prohibit
(a) the Administrative Agent from exercising on its own behalf the rights
and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan Documents, (b) the
L/C Issuers or the Swing Line Lender from exercising the rights and remedies
that inure to their benefit (solely in their 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 


 


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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 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 Borrower shall pay
(i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the L/C Issuers 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 any L/C Issuer (including the fees, charges
and disbursements of any counsel for the Administrative Agent, any Lender or
any L/C Issuer), and shall pay all fees and time charges for attorneys who may
be employees of the Administrative Agent, any Lender or any 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 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 Borrower. 
The Borrower shall indemnify the Administrative Agent (and any sub-agent
thereof), each Lender and each L/C Issuer, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold
harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower or any
other Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, or, in the
case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Agreement and the other Loan Documents,
(ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by an 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 


 


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owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party or any of the Borrower’s or such Loan Party’s
directors, shareholders or creditors, and regardless of whether any
Indemnitee is a party thereto, IN ALL CASES, WHETHER OR
NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE,
CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrower or any
other Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if the
Borrower or such Loan Party has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction.


 


(c)           Reimbursement by Lenders. 
To the extent that the Borrower for any reason fails to indefeasibly pay
any amount required under subsection (a) or (b) of
this Section to be paid by it to the Administrative Agent (or any
sub-agent thereof), any 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), such 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 such
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 such
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 law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or
thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed 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.


 


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(f)            Survival.  The
agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuers
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 the Borrower is made to the Administrative
Agent, any L/C Issuer or any Lender, or the Administrative Agent, any 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, such 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 each 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 Issuers 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 the Borrower may
not 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 Section 10.06(b), (ii) by way of participation
in accordance with the provisions of Section 10.06(d), or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of Section 10.06(f) (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 Issuers 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(s) and
the Loans (including for purposes of this Section 10.06(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.


 


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(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 $2,500,000, unless each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single 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 Borrower shall be required unless (1) an
Event of Default has occurred and is continuing at the time of such assignment
or (2) such assignment is to an Eligible Assignee.  The consent of the Borrower will also, unless
an Event of Default has occurred and is continuing at the time of such
assignment, be required in the event of an assignment to an Eligible Assignee
that is not an Affiliate of the assigning Lender or an Approved Fund of such
Lender if such assignment would result in the assigning Lender retaining a
Commitment (which for this purpose includes Loans outstanding thereunder) of
less than $7,500,000 provided that the Borrower shall be deemed to have
consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within five (5) 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 a Lender or an
Approved Fund with respect to a Lender;


 


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(C)           the consent of the L/C Issuers (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 the Borrower or any of the
Borrower’s 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 Borrower 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 Law 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


 


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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, the Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with Section 10.06(d).


 


(c)           Register.  The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower (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 Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.  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 Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.


 


(d)           Participations.  Any Lender
may at any time, without the consent of, or notice to, the Borrower or the
Administrative Agent, sell participations to any Person (other than a natural
person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates
or Subsidiaries) (each, a “Participant”) in all or a portion of
such Lender’s rights and/or obligations under this Agreement (including all or
a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent, the Lenders and the L/C Issuers 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, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05  to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to Section 10.06(b).  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.


 


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


 


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


 


(g)           Resignation as L/C Issuer or Swing Line Lender after
Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitment
and Revolving Credit Loans pursuant to Section 10.06(b), Bank of America
may, (i) upon 30 days’
notice to the Borrower and the Lenders, resign as an L/C Issuer and/or (ii) upon
30 days’ notice to the Borrower,
resign as Swing Line Lender.  In the
event of any such resignation as an L/C Issuer or Swing Line Lender, the Borrower
shall be entitled to appoint from among the Lenders a successor L/C Issuer or
Swing Line Lender hereunder; provided, however, that no failure
by the Borrower to appoint any such successor shall affect the resignation of
Bank of America as an L/C Issuer or the Swing Line Lender, as the case may
be.  If Bank of America resigns as an L/C
Issuer, it shall retain all the rights, powers, privileges and duties of an L/C
Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as an L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). 
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender,
(a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, as the case may be, and (b) the successor L/C Issuer shall issue
letters of credit in substitution for the applicable Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank
of America with respect to such Letters of Credit.


 


10.07      Treatment of Certain Information; Confidentiality. 
Each of the Administrative Agent, the Lenders and the L/C Issuers agree
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,
trustees, 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 


 


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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 any Eligible Assignee invited to be a Lender pursuant to Section 2.14(c) or
(ii) any actual or prospective counterparty (or its advisors) to any swap
or derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, any Lender, any L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than
the Borrower.  For purposes of this
Section, “Information” means all information received from the Borrower
or any Subsidiary relating to the 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 any 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 the 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 Issuers acknowledges that (a) the
Information may include material non-public information concerning the Borrower
or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with applicable
Law, including United States Federal and state securities Laws.


 


10.08      Right of Setoff.  If an Event of Default shall
have occurred and be continuing, each Lender, each L/C Issuer and each of their
respective Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, such L/C Issuer or any such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement or any other Loan Document to such Lender or such L/C Issuer,
irrespective of whether or not such Lender or such L/C Issuer shall have made
any demand under this Agreement or any other Loan Document and although such
obligations of the Borrower may
be contingent or unmatured or are owed to a branch or office of such Lender or
such 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 2.16 and,
pending such payment, shall 


 


115

















 


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, each 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, such L/C Issuer or their
respective Affiliates may have.  Each
Lender and each L/C Issuer agrees to notify the Borrower and the Administrative
Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.


 


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 Law
(the “Maximum
Rate”).  If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the
Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate,
and spread in equal or unequal parts the total amount of interest throughout
the contemplated term of the Obligations hereunder.  To the extent that the Laws of the State of
Texas are applicable for purposes of determining the Maximum Rate applicable to
any Lender, such Lender elects to determine the applicable rate ceiling under
Chapter 303 of the Texas Finance Code by the weekly ceiling from time to time
in effect.


 


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 at the time
of any Credit Extension, and shall continue in full force and effect as long as
any Loan or 


 


116

















 


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 Issuers 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 the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting
Lender or if any other circumstance
exists hereunder that gives the Borrower the right to replace a Lender as a
party hereto, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 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 Borrower shall have paid 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 Borrower (in the case of all other amounts);


 


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


 


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


 


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


 


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10.14      Governing Law; Jurisdiction; Etc.  (a) GOVERNING
LAW.  THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF  NEW
YORK.


 


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


 


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


 


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


 


10.15      Waiver of Jury Trial.  EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY 


 


118

















 


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), the
Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the
Administrative Agent and the
Arranger, are arm’s-length commercial transactions between the Borrower and its  Affiliates,
on the one hand, and the Administrative Agent and  the Arranger, on
the other hand, (B) the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
Borrower is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (ii) (A) the Administrative Agent and the Arranger each is and has been
acting solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an advisor,
agent or fiduciary for the Borrower  or
any of its  Affiliates, or any other Person and (B) neither
the Administrative Agent nor  the Arranger has any obligation to
the Borrower  or any of its  Affiliates
with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent and the
Arranger and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower and its Affiliates, and neither the
Administrative Agent nor the
Arranger has any obligation to disclose any of such interests to the Borrower
or its Affiliates.  To the fullest extent
permitted by law, the Borrower
hereby waives and releases any claims that it may have against the
Administrative Agent and the
Arranger 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, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.


 


10.18      USA PATRIOT Act.  Each Lender that is subject to
the Act (as hereinafter defined) and the Administrative Agent (for itself and
not on behalf of any Lender) hereby 


 


119

















 


notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), it is required
to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Loan Party in accordance with the Act.  The Borrower shall, promptly following a
request by the Administrative Agent or any Lender, provide all documentation
and other information that the Administrative Agent or such Lender requests in
order to comply with its ongoing obligations under applicable “know your
customer” an anti-money laundering rules and regulations, including
the Act.


 


10.19      ENTIRE AGREEMENT.  THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.  THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.


 


120






 












 


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


 


	
   

  	
  GLOBAL
  GEOPHYSICAL SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  P. Mathew Verghese

  
	
   

  	
  P.
  Mathew Verghese

  
	
   

  	
  Senior
  Vice President and Chief Financial Officer

  



 


Signature
Page to Credit Agreement


 

















 


	
   

  	
  BANK
  OF AMERICA, N.A., as

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Antonikia L. Thomas

  
	
   

  	
   

  	
  Antonikia
  L. Thomas

  
	
   

  	
   

  	
  Assistant Vice President

  



 


Signature
Page to Credit Agreement


 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Julie Castano

  
	
   

  	
   

  	
  Julie
  Castano

  
	
   

  	
   

  	
  Vice
  President

  



 


Signature
Page to Credit Agreement


 

















 


	
   

  	
  CREDIT
  SUISSE AG, CAYMAN ISLANDS BRANCH, as Syndication Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Judy Smith

  
	
   

  	
   

  	
  Judy
  Smith

  
	
   

  	
   

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Ilya Ivashkov

  
	
   

  	
   

  	
  Ilya
  Ivashkov

  
	
   

  	
   

  	
  Associate

  



 


Signature
Page to Credit Agreement


 

















 


	
   

  	
  BARCLAYS
  BANK PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Nicholas Bell

  
	
   

  	
   

  	
  Nicholas
  Bell

  
	
   

  	
   

  	
  Director

  



 


Signature
Page to Credit Agreement


 

















 


	
   

  	
  CITIBANK,
  N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Arthur B. Pryde

  
	
   

  	
   

  	
  Arthur
  B. Pryde

  
	
   

  	
   

  	
  Vice
  President

  



 


Signature
Page to Credit Agreement