EX-10.1






Exhibit 10.1

Conformed Copy




JP MORGAN




CREDIT AGREEMENT




dated as of




December 20, 2006




among




ARBITRON INC.




The Lenders Party Hereto




CITIZENS BANK OF PENNSYLVANIA




as Documentation Agent




CITIBANK, N.A. and WACHOVIA BANK, NATIONAL ASSOCIATION




as Co-Syndication Agents




and




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION




as Administrative Agent




J.P. MORGAN SECURITIES INC.




as Sole Bookrunner and Sole Lead Arranger






1









2






TABLE OF CONTENTS




Page




ARTICLE I Definitions



	 	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	17	 
	SECTION 1.03. Terms Generally
	 	 	17	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	18	 
	ARTICLE II The Credits
	 	 	18	 
	SECTION 2.01. Commitments
	 	 	18	 
	SECTION 2.02. Loans and Borrowings
	 	 	18	 
	SECTION 2.03. Requests for Revolving Borrowings
	 	 	19	 
	SECTION 2.04. Intentionally Omitted.
	 	 	20	 
	SECTION 2.05. Swingline Loans
	 	 	20	 
	SECTION 2.06. Letters of Credit
	 	 	21	 
	SECTION 2.07. Funding of Borrowings
	 	 	26	 
	SECTION 2.08. Interest Elections
	 	 	26	 
	SECTION 2.09. Termination and Reduction of Commitments
	 	 	27	 
	SECTION 2.10. Repayment of Loans; Evidence of Debt
	 	 	28	 
	SECTION 2.11. Prepayment of Loans.
	 	 	29	 
	SECTION 2.12. Fees
	 	 	29	 
	SECTION 2.13. Interest
	 	 	30	 
	SECTION 2.14. Alternate Rate of Interest
	 	 	31	 
	SECTION 2.15. Increased Costs
	 	 	32	 
	SECTION 2.16. Break Funding Payments
	 	 	33	 
	SECTION 2.17. Taxes
	 	 	33	 
	SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	34	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 	 	36	 
	SECTION 2.20. Expansion Option
	 	 	37	 
	ARTICLE III Representations and Warranties
	 	 	38	 
	SECTION 3.01. Organization; Powers; Subsidiaries
	 	 	38	 
	SECTION 3.02. Authorization; Enforceability
	 	 	38	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	38	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	38	 
	SECTION 3.05. Properties
	 	 	39	 
	SECTION 3.06. Litigation and Environmental Matters
	 	 	39	 
	SECTION 3.07. Compliance with Laws and Agreements
	 	 	40	 
	SECTION 3.08. Investment and Holding Company Status
	 	 	40	 
	SECTION 3.09. Taxes
	 	 	40	 
	SECTION 3.10. ERISA
	 	 	40	 
	SECTION 3.11. Disclosure
	 	 	40	 
	SECTION 3.12. Federal Reserve Regulations
	 	 	40	 
	SECTION 3.13. No Default
	 	 	41	 
	ARTICLE IV Conditions
	 	 	41	 
	SECTION 4.01. Effective Date
	 	 	41	 
	SECTION 4.02. Each Credit Event
	 	 	42	 
	ARTICLE V Affirmative Covenants
	 	 	42	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	42	 
	SECTION 5.02. Notices of Material Events
	 	 	44	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	45	 
	SECTION 5.04. Payment of Obligations
	 	 	45	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	45	 
	SECTION 5.06. Books and Records; Inspection Rights
	 	 	45	 
	SECTION 5.07. Compliance with Laws; Compliance with Agreements
	 	 	46	 
	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	46	 
	SECTION 5.09. Subsidiary Guaranty
	 	 	46	 
	ARTICLE VI Negative Covenants
	 	 	46	 
	SECTION 6.01. Indebtedness
	 	 	46	 
	SECTION 6.02. Liens
	 	 	47	 
	SECTION 6.03. Fundamental Changes
	 	 	48	 
	SECTION 6.04. Loans, Advances, Guarantees and Acquisitions
	 	 	50	 
	SECTION 6.05. Swap Agreements
	 	 	50	 
	SECTION 6.06. Transactions with Affiliates
	 	 	51	 
	SECTION 6.07. Restricted Payments
	 	 	51	 






	 	 	 	 	 
	SECTION 6.08. Subordinated Indebtedness and Amendments to Subordinated Indebtedness
Documents
	 	 	51	 
	SECTION 6.09. Changes in Fiscal Year
	 	 	51	 
	SECTION 6.10. Sale and Leaseback Transactions
	 	 	51	 
	SECTION 6.11. Financial Covenants.
	 	 	52	 
	ARTICLE VII Events of Default
	 	 	52	 
	ARTICLE VIII The Administrative Agent
	 	 	54	 
	ARTICLE IX Miscellaneous
	 	 	56	 
	SECTION 9.01. Notices
	 	 	56	 
	SECTION 9.02. Waivers; Amendments
	 	 	57	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	59	 
	SECTION 9.04. Successors and Assigns
	 	 	60	 
	SECTION 9.05. Survival
	 	 	63	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	63	 
	SECTION 9.07. Severability
	 	 	63	 
	SECTION 9.08. Right of Setoff
	 	 	64	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	64	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	64	 
	SECTION 9.11. Headings.
	 	 	65	 
	SECTION 9.12. Confidentiality
	 	 	65	 
	SECTION 9.13. USA PATRIOT Act.
	 	 	66	 






3




4




	 
	SCHEDULES:
	 

	Schedule 2.01 – Commitments

	 

	Schedule 2.06 – Existing Letters of Credit

	 

	Schedule 3.01 – Subsidiaries

	 

	Schedule 3.06 – Disclosed Matters

	 

	Schedule 6.01 – Existing Indebtedness

	 

	Schedule 6.02 – Existing Liens

	 

	EXHIBITS:

	 

	 

	Exhibit A – Form of Assignment and Assumption

	 

	Exhibit B-1 – Form of Opinion of Borrower’s In-House Counsel

	 

	Exhibit B-2 – Form of Opinion of Borrower’s Outside Counsel

	 

	Exhibit C – Form of Increasing Lender Supplement

	 

	Exhibit D – Form of Augmenting Lender Supplement

	 

	Exhibit E – List of Closing Documents

	 

	Exhibit F – Form of Subsidiary Guaranty

	 

	Exhibit G – Form of Compliance Certificate







5




CREDIT AGREEMENT (this “Agreement”) dated as of December 20, 2006 among
ARBITRON INC., the LENDERS party hereto, CITIZENS BANK OF PENNSYLVANIA, as Documentation Agent,
CITIBANK, N.A. and WACHOVIA BANK, NATIONAL ASSOCIATION, as Co-Syndication Agents and JPMORGAN CHASE
BANK, NATIONAL ASSOCIATION, as Administrative Agent.



The parties hereto agree as follows:



ARTICLE I




Definitions




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



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



“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal
to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.



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



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



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



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



“Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.



“Applicable Rate” means, for any day, with respect to any Eurodollar Revolving Loan or
ABR Revolving Loan, or with respect to the facility fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption “Eurodollar Spread”, “ABR Spread” or
“Facility Fee Rate”, as the case may be, based upon the Pricing Ratio applicable on such date:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pricing Ratio:

	 	Eurodollar
	 	ABR Spread
	 	Facility Fee

	 

	 	 	 	 	 	 	 	 	 	


	
 
	 	Spread
	 	 	 	 	 	Rate

	
 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 1: = 0.75 to 1.00

	 	 	0.575	%	 	 	0	%	 	 	0.175	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 2: > 0.75 to 1.00

but

= 1.50 to 1.00

	 	



0.80%
	 	



0%
	 	



0.20%

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 3: > 1.50 to 1.00

but

= 2.25 to 1.00

	 	



1.025%
	 	



0.025%
	 	



0.225%

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 4: > 2.25 to 1.00

	 	 	1.25	%	 	 	0.25	%	 	 	0.25	%






For purposes of the foregoing,




(i) if at any time the Borrower fails to deliver the Financials on or before the date
the Financials are due pursuant to Section 5.01, Category 4 shall be deemed applicable for
the period commencing five (5) Business Days after such required date of delivery and ending
on the date which is five (5) Business Days after the Financials are actually delivered,
after which the Category shall be determined in accordance with the table above as
applicable;




(ii) adjustments, if any, to the Category then in effect shall be effective five (5)
Business Days after the Administrative Agent has received the applicable Financials (it
being understood and agreed that each change in Category shall apply during the period
commencing on the effective date of such change and ending on the date immediately preceding
the effective date of the next such change); and




(iii) notwithstanding the foregoing, Category 1 shall be deemed to be applicable until
the Administrative Agent’s receipt of the applicable Financials for the Borrower’s fiscal
quarter ending on or about December 31, 2006 (unless such Financials demonstrate that
Category 2, 3 or 4 should have been applicable during such period, in which case such other
Category shall be deemed to be applicable during such period) and adjustments to the
Category then in effect shall thereafter be effected in accordance with the preceding
paragraphs.




In the event that, at any time during which the Commitments are in effect or any of the
Obligations remain unpaid (other than contingent indemnity obligations expressly surviving
termination hereof), any Financial or Compliance Certificate delivered pursuant to Section
5.01 is shown to be inaccurate and such inaccuracy, if corrected, would have caused the
application of a higher Applicable Rate for any period than the Applicable Rate actually
applied for such period, then (i) the Borrower shall within five (5) Business Days thereof
deliver to the Administrative Agent (for distribution to the Lenders) a corrected Compliance
Certificate for such period, (ii) the Applicable Rate for such period shall be recalculated
and applied as if the higher Applicable Rate were applicable and (iii) the Borrower shall
within five (5) Business Days pay to the Administrative Agent the additional amount of
interest and fees owing as a result of such increased Applicable Rate for such period to the
extent accrued through the last Interest Payment Date (and any subsequent payments required
to be made on any subsequent Interest Payment Date shall also be adjusted accordingly).
Nothing contained in this paragraph shall limit or otherwise prejudice the rights and
remedies of the Administrative Agent and the Lenders under Section 2.13(c) and Article VII.



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



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



“Augmenting Lender” has the meaning assigned to such term in Section 2.20.



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



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



“Borrower” means Arbitron Inc., a Delaware corporation.



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



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



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



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



“Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of Equity Interests representing more than 33% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower; or (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed
by directors so nominated.



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



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



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



“Co-Syndication Agent” means each of Citibank, N.A. and Wachovia Bank, National
Association in its capacity as co-syndication agent for the credit facility evidenced by this
Agreement.



“Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced or terminated from time to time pursuant
to Section 2.09, (b) increased from time to time pursuant to Section 2.20 and (c) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as
applicable. The initial aggregate amount of the Lenders’ Commitments is $150,000,000.



“Compliance Certificate” means a certificate of a Financial Officer in the form of
Exhibit G.



“Consolidated EBITDA” means Consolidated Net Income plus, to the extent deducted from
revenues in determining Consolidated Net Income, (i) Consolidated Interest Expense, (ii) expense
for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v) extraordinary non-cash
losses, (vi) non-cash losses, charges or expenses arising from director and employee stock-based
compensation minus, (a) to the extent included in Consolidated Net Income, extraordinary non-cash
gains and (b) the amount of any subsequent cash payments in respect of any non-cash losses, charges
or expenses described in the foregoing clause (v) or (vi), all calculated for the Borrower and its
Subsidiaries in accordance with GAAP on a consolidated basis; provided that Consolidated EBITDA
shall not include or give effect to the income (or loss) of any Person that is not a Subsidiary (i)
in which any Person other than the Borrower or any of the Borrower’s Subsidiaries has a joint
interest or a partnership interest or other ownership interest or (ii) to the extent the Borrower
or any of the Borrower’s Subsidiaries does not control the Board of Directors or other governing
body of such Person or otherwise does not control the declaration of a dividend or other
distribution by such Person, except Consolidated EBITDA shall include the income of such Person in
each case to the extent of the amount of cash dividends or other cash distributions actually paid
to the Borrower or any of its Subsidiaries by such Person during such period. For purposes of the
computation of the Leverage Ratio or the Pricing Ratio for any period during which a Permitted
Acquisition occurred, EBITDA shall be calculated on a pro forma basis reasonably acceptable to the
Administrative Agent as if such Permitted Acquisition had occurred (and any related Indebtedness
incurred) on the first day of such computation period.



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



“Consolidated Net Income” means, with reference to any period, the net income (or
loss) of the Borrower and its Subsidiaries calculated in accordance with GAAP on a consolidated
basis (without duplication) for such period.



“Consolidated Tangible Assets” means Consolidated Total Assets minus the aggregate
amount, for the Borrower and its Subsidiaries on a consolidated basis, of all assets classified as
intangible assets under GAAP, including, without limitation, goodwill, trademarks, patents,
copyrights, organization expenses, franchises, licenses, trade names, brand names, mailing lists,
catalogs, excess of cost over book value of assets acquired, and bond discount and underwriting
expenses.



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



“Consolidated Total Indebtedness” means at any time the sum, without duplication, of
the aggregate Indebtedness of the Borrower and its Subsidiaries calculated on a consolidated basis
as of such time in accordance with GAAP.



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



“Credit Event” means a Borrowing, the issuance of a Letter of Credit, an LC
Disbursement or any of the foregoing.



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



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



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



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



“Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction
located in the United States of America.



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



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



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



“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.



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



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



“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.



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



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



“Evergreen LC” means a Letter of Credit which includes a provision which automatically
extends the expiry date thereof for a specified period unless, within some period of time in
advance of the then applicable expiry date thereof, the Administrative Agent gives notice to the
beneficiary to the effect that such Letter of Credit will not be so extended.



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income excise, stamp or franchise taxes and other similar taxes, fees,
duties, withholdings or other charges imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
lending office is located or otherwise as a result of a present or former connection between the
applicable lending office and the jurisdiction of the Governmental Authority imposing such tax, (b)
any branch profits taxes imposed by the United States of America or any similar tax imposed by any
other jurisdiction in which the Borrower is located or in which its principal office is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.17(e),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.17(a).



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



“Financial Officer” means the chief financial officer, principal accounting officer,
treasurer, controller, Vice President Accounting Services or Treasury Manager of the Borrower.



“Financials” means the annual or quarterly financial statements, and accompanying
certificates and other documents, of the Borrower required to be delivered pursuant to Section
5.01(a) or 5.01(b).



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



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



“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.



“Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business. The amount of any Guarantee made by any guarantor shall be
deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee is made and (b) the maximum amount for which such
guarantor may be liable pursuant to the terms of the instrument embodying such Guarantee, unless
(in the case of a primary obligation that is not Indebtedness) such primary obligation and the
maximum amount for which such guarantor may be liable are not stated or determinable, in which case
the amount of such Guarantee shall be such guarantor’s maximum reasonably anticipated liability in
respect thereof as reasonably determined by the Borrower in good faith.



“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.



“Increasing Lender” has the meaning assigned to such term in Section 2.20.



“Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances and (k) all Swap Obligations of such Person. The Indebtedness of
any Person shall include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.



“Indemnified Taxes” means Taxes other than Excluded Taxes.



“Information Memorandum” means the Confidential Information Memorandum dated November
2006 relating to the Borrower and the Transactions.



“Interest Coverage Ratio” has the meaning assigned to such term in Section 6.11(b).



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



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



“Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter (or with the consent of each
Lender, nine or twelve months), as the Borrower may elect; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a Eurodollar Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be the effective date
of the most recent conversion or continuation of such Borrowing.



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



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



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



“Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment
and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline
Lender.



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



“Leverage Ratio” has the meaning assigned to such term in Section 6.11(a).



“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to deposits in Dollars in the London interbank market) at approximately 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such Interest Period, as the rate
for deposits in Dollars with a maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the “LIBO Rate” with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which deposits in Dollars
of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of
such Interest Period.



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



“Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.



“Loan Documents” means this Agreement, the Subsidiary Guaranty, any promissory notes
executed and delivered pursuant to Section 2.10(e) and any and all other instruments and documents
executed and delivered in connection with any of the foregoing.



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



“Material Adverse Effect” means a material adverse effect on (a) the business, assets,
property, condition (financial or otherwise) or prospects of the Borrower and the Subsidiaries
taken as a whole or (b) the validity or enforceability of this Agreement any or any and all other
Loan Documents or the rights or remedies of the Administrative Agent and the Lenders thereunder.



“Material Domestic Subsidiaries” means each Domestic Subsidiary (i) which, as of the
most recent fiscal quarter of the Borrower, for the period of four consecutive fiscal quarters then
ended, for which financial statements have been delivered pursuant to Section 5.01, contributed
greater than ten percent (10%) of the Borrower’s Consolidated EBITDA for such period or (ii) which
contributed greater than ten percent (10%) of the Borrower’s Consolidated Total Assets as of such
date; provided that, if at any time the aggregate amount of the EBITDA or consolidated total assets
of all Domestic Subsidiaries that are not Material Domestic Subsidiaries exceeds ten percent (10%)
of the Borrower’s Consolidated EBITDA for any such period or ten percent (10%) of the Borrower’s
Consolidated Total Assets as of the end of any such fiscal quarter, the Borrower (or, in the event
the Borrower has failed to do so within ten (10) days, the Administrative Agent) shall designate
sufficient Domestic Subsidiaries as “Material Domestic Subsidiaries” to eliminate such excess, and
such designated Subsidiaries shall for all purposes of this Agreement constitute Material Domestic
Subsidiaries.



“Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding $10,000,000. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or
any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.



“Maturity Date” means December 20, 2011.



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



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



“Non-Extension Date” means, with respect to any Evergreen LC, the date by which the
Issuing Bank must give notice to the beneficiary thereof of the non-renewal of such Evergreen LC in
order to avoid the automatic extension of the expiry date thereof.



“Obligations” means all indebtedness (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), obligations and liabilities of any of the Borrower and
its Subsidiaries to any of the Lenders and the Administrative Agent, individually or collectively,
existing on the Effective Date or arising thereafter, direct or indirect, joint or several,
absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured,
arising by contract, operation of law or otherwise, arising or incurred under this Credit Agreement
or any of the other Loan Documents or any Swap Agreement or in respect of any of the Loans made or
reimbursement or other obligations incurred or any of the Letters of Credit or other instruments at
any time evidencing any thereof.



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



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



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



“Permitted Acquisition” means any acquisition (whether by purchase, merger,
consolidation or otherwise) or series of related acquisitions by the Borrower or any Subsidiary of
(i) all or substantially all the assets of, (ii) all the Equity Interests in, a Person or division
or line of business of a Person or (iii) if clauses (i) and (ii) above are inapplicable, the rights
of any licensee (including by means of the termination of such licensee’s rights under such
license) under a trademark license to such licensee from the Borrower or any Subsidiary, if, at the
time of and immediately after giving effect thereto, (a) no Default has occurred and is continuing
or would arise after giving effect thereto, (b) such Person or division or line of business is
engaged in the same or a similar line of business as the Borrower and the Subsidiaries or business
reasonably related thereto, (c) the Borrower and the Subsidiaries are in compliance, on a pro forma
basis reasonably acceptable to the Administrative Agent after giving effect to such acquisition
(without giving effect to any cost savings), with the covenants contained in Section 6.11
recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which
financial statements are available, as if such acquisition had occurred on the first day of each
relevant period for testing such compliance and (d) in the case of an acquisition or merger
involving the Borrower or a Subsidiary, the Borrower or such Subsidiary is the surviving entity of
such merger and/or consolidation.



“Permitted Encumbrances” means:



(a) Liens imposed by law for taxes that are not yet due or are being contested in compliance
with Section 5.04;



(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are not
overdue by more than thirty (30) days or are being contested in compliance with Section 5.04;



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



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



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



(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Borrower or any Subsidiary; and



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



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



“Permitted Investments” means:



(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America, in each case maturing within 36 months
from the date of acquisition thereof;



(b) obligations issued by any Federal agency of the United States of America, in each case
maturing within 36 months from the date of acquisition thereof;



(c) municipal investments and direct obligations of any State of the United States of America,
in each case with a rating of A or higher by S&P and/or A2 or higher by Moody’s and a maximum
maturity of 36 months (for securities where the interest rate is adjusted periodically (e.g.
floating rate securities), the reset date will be used to determine the maturity date);



(d) investments in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, a rating of A-2 from S&P or P-2 from Moody’s;



(e) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within 36 months from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;



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



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



(h) investments in auction rate securities with a rating of A or higher by S&P and/or A2 or
higher by Moody’s and a maximum maturity of one year, for which the reset date will be used to
determine the maturity date;



(i) investments in variable rate demand notes with a rating of A or higher by S&P and/or A2 or
higher by Moody’s and a maximum maturity of one year, for which the reset date will be used to
determine the maturity date;



(j) investments in corporate and bank debt including, but not limited to, corporate bonds and
loan participations. The minimum rating for such investments must be rated “A-2” and/or “P-2” or
have a long term rating of BBB by S&P and/or Baa2 by Moody’s respectively; and



(k) other investments made in accordance with the Borrower’s investment policy as in effect on
the Effective Date in the form previously provided to the Administrative Agent and the Lenders and
other immaterial changes thereto.



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



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



“Pricing Ratio” means the ratio, determined as of the end of each of the Borrower’s
fiscal quarters ending on and after December 31, 2006, of (i) Consolidated Total Indebtedness
minus, to the extent the sum of cash, cash equivalents (as reflected in the Borrower’s then
most recent consolidated balance sheet) and Permitted Investments maintained by the Borrower as of
the end of such fiscal quarter exceeds $30,000,000, the amount of such excess to (ii) Consolidated
EBITDA for the period of four (4) consecutive fiscal quarters ending with the end of such fiscal
quarter, all calculated for the Borrower and its Subsidiaries on a consolidated basis.



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



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



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



“Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time.



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



“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.



“Revolving Loan” means a Loan made pursuant to Section 2.03.



“S&P” means Standard & Poor’s.



“Sale and Leaseback Transaction” means any sale or other transfer of any property or
asset by any Person with the intent to lease such property or asset as lessee.



“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.



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



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



“subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50.5% of the equity or more
than 50.5% of the ordinary voting power or, in the case of a partnership, more than 50.5% of the
general partnership interests are, as of such date, owned, controlled or held.



“Subsidiary” means any subsidiary of the Borrower.



“Subsidiary Guarantor” means each Material Domestic Subsidiary. The Subsidiary
Guarantors on the Effective Date are identified as such in Schedule 3.01 hereto.



“Subsidiary Guaranty” means that certain Guaranty in the form of Exhibit F
(including any and all supplements thereto) and executed by each Subsidiary Guarantor, as amended,
restated, supplemented or otherwise modified from time to time.



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



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



“Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.



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



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



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



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



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



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



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



SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, restatements supplements or modifications set forth herein), (b)
any reference herein to any Person shall be construed to include such Person’s successors and
assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer
to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
“asset” and “property” shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.



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



ARTICLE II




The Credits




SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees to make Revolving Loans to the Borrower in Dollars from time to time during the
Availability Period in an aggregate principal amount that will not result in (a) such Lender’s
Revolving Credit Exposure exceeding such Lender’s Commitment or (b) the sum of the total Revolving
Credit Exposures exceeding the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving
Loans.



SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part
of a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required to be made by it shall
not relieve any other Lender of its obligations hereunder; provided that the Commitments of
the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make
Loans as required.



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



(c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less
than $5,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $250,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.06(e). Each Swingline Loan shall be in an amount
that is an integral multiple of $250,000 and not less than $500,000. Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of six (6) Eurodollar Revolving Borrowings outstanding.



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



SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of
a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three (3) Business Days
before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
1:00 p.m., New York City time, one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.06(e) may be given not later than 1:00 p.m., New
York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:




(i) the aggregate amount of the requested Borrowing;




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




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




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




(v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.07.



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



SECTION 2.04. Intentionally Omitted.



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



(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means
of a disbursement by wire transfer to a deposit account of the Borrower at such financial
institution as is designated by the Borrower in its request for such Swingline Loan (or, in the
case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in
Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.



(c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such
Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph
is absolute and unconditional and shall not be affected by any circumstance whatsoever, including
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.07 with respect to Loans
made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and
not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or
other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to
the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to
this paragraph and to the Swingline Lender, as their interests may appear; provided that any such
payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as
applicable, if and to the extent such payment is required to be refunded to the Borrower for any
reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Borrower of any default in the payment thereof.



SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit denominated
in Dollars for its own account, in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank, at any time and from time to time during the Availability Period. In the event of
any inconsistency between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control. The letters of credit identified on Schedule
2.06 shall be deemed to be “Letters of Credit” issued on the Effective Date for all purposes of
the Loan Documents.



(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal
or extension but in any case, notice given not later than 1:00 p.m. New York City time, three
Business Days prior to such date shall be deemed sufficient) a notice requesting the issuance of a
Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day),
the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare, amend, renew or extend such Letter of
Credit. If requested by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank’s standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment, renewal or extension
(i) the LC Exposure shall not exceed $15,000,000 and (ii) the total Revolving Credit Exposures
shall not exceed the total Commitments.



(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five (5) Business Days prior to the Maturity Date;
provided that with the prior consent of the Administrative Agent and the Issuing Bank, such
Issuing Bank may issue or extend Evergreen Letters of Credit with a later expiration date so long
as on the Maturity Date, whether or not an Event of Default exists, the Borrower shall deposit in
an account with the Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to 105% of the undrawn amount of all outstanding
Evergreen Letters of Credit with an expiration date later than five Business Days prior to the
Maturity Date. If the Borrower is required to provide an amount of cash collateral hereunder as a
result of an approaching Maturity Date, such amount (to the extent not applied as aforesaid) shall
be returned (net of any fees and other customary charges and expenses) to the Borrower within three
(3) Business Days after all Letters of Credit have expired and all related reimbursement and
payment obligations satisfied in full.



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



(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent in Dollars the amount equal to such LC Disbursement, calculated as of the date the Issuing
Bank made such LC Disbursement not later than 12:00 noon, New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior
to 10:00 a.m., New York City time, on such date, or, if such notice has not been received by the
Borrower prior to such time on such date, then not later than 12:00 noon, New York City time, on
(i) the Business Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day immediately
following the day that the Borrower receives such notice, if such notice is not received prior to
such time on the day of receipt; provided that, if such LC Disbursement is not less than
$500,000, the Borrower may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 or 2.05 that such payment be financed with an ABR Revolving Borrowing
or Swingline Loan in an equivalent amount of such LC Disbursement and, to the extent so financed,
the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting
ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to make such payment when due,
the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment
then due from the Borrower in respect thereof and such Lender’s Applicable Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in
Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the
Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as their interests may appear. Any payment
made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.



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



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



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



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



(j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent,
in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal
to the amount of the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Article VII. Such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held
for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders
with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3)
Business Days after all Events of Default have been cured or waived.



(k) Evergreen Letters of Credit. The Lenders agree that, while an Evergreen LC is
outstanding and prior to the Maturity Date, at the option of the Borrower and upon the written
request of the Borrower received by the Issuing Bank (with a copy to the Administrative Agent) no
more than fifty (50) days and at least twenty (20) days (or such shorter time as the Issuing Bank
may agree in a particular instance) prior to the effective Non-Extension Date thereof, the Issuing
Bank shall be entitled to authorize or permit the automatic extension of such Evergreen LC. Each
such request from the Borrower for extension of an Evergreen LC shall be in writing and shall
specify: (i) the Evergreen LC to be extended; (ii) the proposed effective date of extension of the
Evergreen LC (which shall be a Business Day except to the extent it is the expiry date of the
applicable Evergreen LC and no action of the Issuing Bank is required on such date); (iii) the
revised expiry date of the Evergreen LC (which, subject to Section 2.06(c), shall not be later than
the earlier of (A) the date that is one year after the then effective expiry date of such Evergreen
LC and (B) the date that is five Business Days prior to the Maturity Date); and (iv) such other
matters as the Issuing Bank may reasonably require. The Issuing Bank shall be under no obligation
to so extend or permit the extension of any Evergreen LC if the Issuing Bank would have no
obligation as of the proposed effective date of extension to issue or amend such Evergreen LC in
its extended form under the terms of this Agreement (including Section 4.02). If as of the date
twenty (20) days prior to the Non-Extension Date of any Evergreen LC the Issuing Bank would be
entitled to authorize the extension of such Evergreen LC in accordance with this Section 2.06(k)
upon the request of the Borrower but the Issuing Bank shall not have received a request from the
Borrower to cause or permit such extension or a written direction from the Borrower to not cause or
permit such extension, the Borrower shall be deemed to have delivered a request to cause the
extension of such Letter of Credit. In addition, upon the direction of the Borrower for any
Evergreen LC, the Issuing Bank shall give such notice as is necessary to prevent an automatic
extension of the expiry date of such Evergreen LC; provided, however, that in no
event shall the Issuing Bank have liability to any party thereto for its failure to give such
notice if written direction to give such notice is received by the Issuing Bank less than twenty
(20) days prior to the Non-Extension Date for such Evergreen LC. The Issuing Bank will provide to
the Administrative Agent and the Borrower a copy of any notice of non-extension given to an
Evergreen LC beneficiary pursuant to this Section.



SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 12:00 noon, New York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided that Swingline Loans
shall be made as provided in Section 2.05. The Administrative Agent will make such Loans available
to the Borrower by promptly making a disbursement by wire transfer to a deposit account of the
Borrower at such financial institution as is designated by the Borrower in the applicable Borrowing
Request; provided that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the
Issuing Bank.



(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans; provided, that any payment made by the Borrower shall be made
without prejudice to any claim the Borrower may have against the Lender failing to make such
payment to the Administrative Agent. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender’s Loan included in such Borrowing.



SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar
Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.



(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower. Notwithstanding any contrary provision herein,
this Section shall not be construed to permit the Borrower to elect an Interest Period for
Eurodollar Loans that does not comply with Section 2.02(d).



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




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




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




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




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



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



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



(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative Agent, at the request
of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.



SECTION 2.09. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Commitments shall terminate on the Maturity Date.



(b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.11, the sum of the Revolving Credit Exposures would exceed the
total Commitments.



(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three (3) Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities or other receipt of funds, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such condition
is not satisfied. Any termination or reduction of the Commitments shall be permanent. Each
reduction of the Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.



SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date
and the first date after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least two (2) Business Days after such Swingline Loan is made; provided
that on each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans
then outstanding.



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



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



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



(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).



SECTION 2.11. Prepayment of Loans.



(a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in accordance with paragraph (b) of this
Section.



(b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 1:00
p.m., New York City time, three (3) Business Days before the date of prepayment, (ii) in the case
of prepayment of an ABR Revolving Borrowing, not later than 1:00 p.m., New York City time, one
Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan,
not later than 1:00 p.m., New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as contemplated by Section
2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.
Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in
the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in such prepaid
Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by
Section 2.13 and (ii) break funding payments pursuant to Section 2.16.



SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee, which shall accrue at the Applicable Rate on the daily
amount of the Commitment of such Lender (whether used or unused) during the period from and
including the Effective Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then such facility fee shall continue to accrue on the daily amount of such
Lender’s Revolving Credit Exposure from and including the date on which its Commitment terminates
to but excluding the date on which such Lender ceases to have any Revolving Credit Exposure.
Accrued facility fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate, commencing on the first
such date to occur after the date hereof; provided that any facility fees accruing after
the date on which the Commitments terminate shall be payable on demand. All facility fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).



(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date on which such Lender’s Commitment terminates and the
date on which such Lender ceases to have any LC Exposure and (ii) to the Issuing Bank a fronting
fee, which shall accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable
to Letters of Credit issued by the Issuing Bank during the period from and including the Effective
Date to but excluding the later of the date of termination of the Commitments and the date on which
there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees and commissions
with respect to the issuance, amendment, cancellation, negotiation, transfer, presentment, renewal
or extension of any Letter of Credit or processing of drawings thereunder. Unless otherwise
specified above, participation fees and fronting fees accrued through and including the last day of
March, June, September and December of each year shall be payable on the third (3rd)
Business Day following such last day, commencing on the first such date to occur after the
Effective Date; provided that all such fees shall be payable on the date on which the
Commitments terminate and any such fees accruing after the date on which the Commitments terminate
shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within ten (10) days after demand. All participation fees and fronting fees shall
be computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).



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



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



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



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



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



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



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



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




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




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



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective and
(ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be
made as an ABR Borrowing. The Administrative Agent shall promptly advise the Borrower of any such
alternate interest rate and shall provide a calculation and explanation of the circumstances
described in the foregoing clauses (a) and (b).



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




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




(ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or participation therein;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan or of maintaining its obligation to make any such Loan or to
increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Bank hereunder, whether of principal, interest or otherwise, then the Borrower will pay
to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred
or reduction suffered.



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



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



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



SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to
Section 2.11), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar
Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.11(b) and is revoked in accordance therewith) or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense attributable to such
event. Such loss, cost or expense to any Lender shall be deemed to include an amount determined by
such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such event to the last day of
the then current Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period, for deposits in
Dollars of a comparable amount and period from other banks in the eurodollar market. A certificate
of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant
to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10)
days after receipt thereof.



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



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



(c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.



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



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



(f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.17, it
shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.17 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower or any other Person.



SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.



(a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.15, 2.16 or 2.17, or otherwise) prior to 1:00 p.m., New York City time on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New York, New York
10017, except payments to be made directly to the Issuing Bank or Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be
made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the period of such
extension. All payments hereunder shall be made in Dollars.



(b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards 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, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.



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



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



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



SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or
2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. Each Lender also agrees
to use its commercially reasonable efforts to make such designation or assignment prior to the
occurrence of any circumstance described in Section 2.15 or 2.17 in the event it has knowledge of
such circumstance prior to its occurrence or as soon thereafter as it becomes aware thereof. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.



(b) If any Lender requests compensation under Section 2.15, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, or if any Lender defaults in its obligation to fund Loans hereunder, 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 Section 9.04), all its interests, rights and obligations under the
Loan Documents to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have
received the prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (iii) in the case of any such assignment resulting
from a claim for compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.



SECTION 2.20. Expansion Option. The Borrower may from time to time elect to increase
the Commitments in minimum increments of $10,000,000 so long as, after giving effect thereto, the
aggregate amount of the Commitments does not exceed $200,000,000. The Borrower may arrange for any
such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its
Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or
other entities (each such new bank, financial institution or other entity, an “Augmenting
Lender”), to increase their existing Commitments, or extend Commitments, as the case may be;
provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower
and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and
such Increasing Lender execute an agreement substantially in the form of Exhibit C hereto,
and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an
agreement substantially in the form of Exhibit D hereto. Increases and new Commitments
created pursuant to this Section 2.20 shall become effective on the date agreed by the Borrower,
the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders and the
Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase
in the Commitments (or in the Commitment of any Lender), shall become effective under this
paragraph unless, (i) on the proposed date of the effectiveness of such increase, the conditions
set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied or waived by the Required
Lenders and the Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Financial Officer of the Borrower and (ii) the Administrative Agent shall
have received documents consistent with those delivered on the Effective Date as to the corporate
power and authority of the Borrower to borrow hereunder after giving effect to such increase. On
the effective date of any increase in the Commitments, (i) each relevant Increasing Lender and
Augmenting Lender shall make available to the Administrative Agent such amounts in immediately
available funds as the Administrative Agent shall determine, for the benefit of the other Lenders,
as being required in order to cause, after giving effect to such increase and the use of such
amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving
Loans of all the Lenders to equal its Applicable Percentage of such outstanding Revolving Loans,
and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans
as of the date of any increase in the Commitments (with such reborrowing to consist of the Types of
Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by
the Borrower in accordance with the requirements of Section 2.03). The deemed payments made
pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of
all accrued interest on the amount prepaid and, in respect of each Eurodollar Loan, shall be
subject to indemnification by the Borrower pursuant to the provisions of Section 2.16 if the deemed
payment occurs other than on the last day of the related Interest Periods.



ARTICLE III




Representations and Warranties




The Borrower represents and warrants to the Lenders that:



SECTION 3.01. Organization; Powers; Subsidiaries. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and, to the extent such concept applies to such
entity, in good standing under the laws of the jurisdiction of its organization, has all requisite
power and authority to carry on its business as now conducted and, except where the failure to do
so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required. Schedule 3.01 hereto (as supplemented from time to
time) identifies each Subsidiary, the jurisdiction of its incorporation or organization, as the
case may be, the percentage of issued and outstanding shares of each class of its capital stock or
other equity interests owned by the Borrower and the other Subsidiaries and, if such percentage is
not 100% (excluding directors’ qualifying shares as required by law), a description of each class
issued and outstanding. All of the outstanding shares of capital stock and other equity interests
of each Subsidiary are validly issued and outstanding and fully paid and nonassessable and all such
shares and other equity interests indicated on Schedule 3.01 as owned by the Borrower or
another Subsidiary are owned, beneficially and of record, by the Borrower or any Subsidiary free
and clear of all Liens.



SECTION 3.02. Authorization; Enforceability. The Transactions are within the
Borrower’s corporate powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement has been duly executed and delivered by the Borrower
and constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer or conveyance,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.



SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect,
(b) will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any indenture, agreement
or other instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give
rise to a right thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.



SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower
has heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2005
reported on by KPMG LLP, independent public accountants, and (ii) as of and for the fiscal quarter
and the portion of the fiscal year ended September 30, 2006, certified by its chief financial
officer. Such financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries
as of such dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred to in clause (ii)
above.



(b) Since December 31, 2005, there has been no material adverse change in the business,
assets, operations or condition, financial or otherwise, of the Borrower and its Subsidiaries,
taken as a whole.



SECTION 3.05. Properties. (a) Each of the Borrower and its Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended purposes. There
are no Liens on any of the real or personal properties of the Borrower or any Subsidiary except for
Liens permitted by Section 6.02.



(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and the
use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



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



(b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.



(c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or could reasonably be expected to
result in a Material Adverse Effect. Neither the Borrower nor any Subsidiary is party or subject
to any law, regulation, rule or order, or any obligation under any agreement or instrument, that
has a Material Adverse Effect.



SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. The parties hereto acknowledge and
agree that any failure to file financial statements with the Securities and Exchange Commission
when required under applicable law and regulation will not, by itself, be deemed to be a breach of
this Section 3.07 if the Borrower files such financial statements within the time periods described
in Sections 5.01 and 5.01 (b), as applicable.



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



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



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



SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other information furnished by or on behalf of
the Borrower to the Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (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.



SECTION 3.12. Federal Reserve Regulations. No part of the proceeds of any Loan have
been used or will be used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and X.



SECTION 3.13. No Default. The Borrower is in compliance with this Agreement and no
Default or Event of Default has occurred and is continuing.



ARTICLE IV




Conditions




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




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




(b) The Administrative Agent shall have received favorable written opinions (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of Timothy T.
Smith, Executive Vice President and Chief Legal Officer of the Borrower, and Oppenheimer
Wolff & Donnelly LLP, counsels for the Borrower, substantially in the forms of Exhibits
B-1 and B-2 respectively, and covering such other matters relating to the Loan Parties,
the Loan Documents or the Transactions as the Required Lenders shall reasonably request.
The Borrower hereby requests such counsels to deliver such opinion.




(c) The Lenders shall have received (i) satisfactory audited consolidated financial
statements of the Borrower for the two most recent fiscal years ended prior to the Effective
Date as to which such financial statements are available, (ii) satisfactory unaudited
interim consolidated financial statements of the Borrower for each quarterly period ended
subsequent to the date of the latest financial statements delivered pursuant to clause (i)
of this paragraph as to which such financial statements are publicly available and (iii)
satisfactory financial statement projections through and including the Borrower’s 2011
fiscal year, together with such information as the Administrative Agent and the Lenders
shall reasonably request (including, without limitation, a detailed description of the
assumptions used in preparing such projections).




(d) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the initial Loan Parties, the authorization of the
Transactions and any other legal matters relating to such Loan Parties, the Loan Documents
or the Transactions, all in form and substance satisfactory to the Administrative Agent and
its counsel and as further described in the list of closing documents attached as
Exhibit E.




(e) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement
or payment of all expenses required to be reimbursed or paid by the Borrower hereunder.



The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02)
at or prior to 3:00 p.m., New York City time, on December 20, 2006 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at such time).



SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing (other than the conversion or continuation of any Loan), and of the
Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction
of the following conditions:




(a) The representations and warranties of the Borrower set forth in this Agreement
shall be true and correct on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable (except any such
representation or warranty that expressly relates to or is made expressly as of a specific
earlier date, in which case such representation or warranty shall be true and correct with
respect to or as of such specific earlier date).




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



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



ARTICLE V




Affirmative Covenants




Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:



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




(a) within the earlier of (x) the date on which such financial statements are delivered
by the Borrower to the Securities and Exchange Commission and (y) one hundred twenty (120)
days after the end of each fiscal year of the Borrower, its audited consolidated balance
sheet and related statements of operations, stockholders’ equity and cash flows as of the
end of and for such year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by KPMG LLP or other independent public accountants of
recognized national standing (without a “going concern” or like qualification or exception
and without any qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;




(b) within the earlier of (x) the date on which such financial statements are delivered
by the Borrower to the Securities and Exchange Commission and (y) sixty (60) days after the
end of each of the first three fiscal quarters of each fiscal year of the Borrower, its
consolidated balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year;




(c) (x) with respect to any delivery of financial statements under clause (a) above, on
the earlier of (i) 15 days following the date on which the Borrower delivers such financial
statements to the Securities and Exchange Commission and (ii) one hundred twenty (120) days
after the end of each fiscal year of the Borrower and (y) with respect to any delivery of
financial statements under clause (b) above, on the earlier of (i) 15 days following the
date on which the Borrower delivers such financial statements to the Securities and Exchange
Commission and (ii) sixty (60) days after the end of each of the first three fiscal quarters
of each fiscal year of the Borrower, a Compliance Certificate: (A) certifying (1) such
quarterly financial statements as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes and (2) as to whether a Default has occurred
and, if a Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (B) setting forth reasonably detailed
calculations demonstrating compliance with Sections 6.01, 6.02 and 6.11 and (C) stating
whether any change in GAAP or in the application thereof has occurred since the date of the
audited financial statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements accompanying such
certificate;




(d) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any Subsidiary with
the Securities and Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission other than Forms 3 and 4 and responses to inquiries
of said commission, or with any national securities exchange, or distributed by the Borrower
to its shareholders generally, as the case may be;




(e) as soon as available, but in any event not more than thirty (30) days after the end
of each fiscal year of the Borrower, a copy of a budget (including a projected consolidated
balance sheet, income statement and statement of cash flows) of the Borrower for the
upcoming fiscal year in form reasonably satisfactory to the Administrative Agent; and




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



The parties hereto acknowledge and agree that the forms of the financial statements filed by the
Borrower with the Securities and Exchange Commission as part of its annual 10-K or quarterly 10-Q
filings shall be satisfactory forms for purposes of complying with financial statement delivery
requirements under Sections 5.01(a) and 5.01(b) respectively.



Documents required to be delivered pursuant to Section 5.01(a) or (b) 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; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or
any Lender that requests the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and, to the extent requested by the Administrative Agent, provide to
the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance the Borrower shall be
required to provide paper copies of the certificates required by Section 5.01(c) to the
Administrative Agent. Except for such certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents referred to above, and in
any event shall have no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.



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



(a) the occurrence of any Default;




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




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




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



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



SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.



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



SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.



SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records, and
to discuss its affairs, finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested; provided, that as long as no
Event of Default is then in effect and notwithstanding anything to the contrary herein, all of the
Lenders and the Administrative Agent shall be limited to one (1) such on-site inspection in the
aggregate among all of them, and so long as no Event of Default is then in effect, the Borrower
will have no obligations to reimburse any expense incurred in connection with any of the foregoing.



SECTION 5.07. Compliance with Laws; Compliance with Agreements. The Borrower will,
and will cause each of its Subsidiaries to, (i) comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property (including without limitation
Environmental Laws) and (ii) perform in all material respects its obligations under material
agreements to which it is a party, in each case except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The
parties hereto acknowledge and agree that any failure to file financial statements with the
Securities and Exchange Commission when required under applicable law and regulation will not, by
itself, be deemed to be a breach of this Section 5.07 if the Borrower files such financial
statements within the time periods described in Sections 5.01 and 5.01 (b), as applicable.



SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the Loans will
be used only to finance the working capital needs, and for general corporate purposes, including
Permitted Acquisitions of the Borrower and its Subsidiaries. No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose that entails a violation of any of
the regulations of the Board, including Regulations T, U and X.



SECTION 5.09. Subsidiary Guaranty. As promptly as possible but in any event within
thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) after any
Person becomes a Subsidiary or any Subsidiary qualifies independently as, or is designated by the
Borrower or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definitions of
“Material Domestic Subsidiary” and “Subsidiary Guarantor”, the Borrower shall provide the
Administrative Agent with written notice thereof setting forth information in reasonable detail
describing the material assets of such Person and shall cause each such Subsidiary which also
qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent the Subsidiary Guaranty
pursuant to which such Subsidiary agrees to be bound by the terms and provisions of thereof, such
Subsidiary Guaranty to be accompanied by appropriate corporate resolutions, other corporate
documentation and legal opinions in form and substance reasonably satisfactory to the
Administrative Agent and its counsel. If any Domestic Subsidiary acting as a Subsidiary Guarantor
ceases to be a Material Subsidiary and/or is no longer required to act as a Subsidiary Guarantor
pursuant to paragraph (b) above (as demonstrated in each case to the reasonable satisfaction of the
Administrative Agent), then such Subsidiary shall be released from the Subsidiary Guaranty promptly
following the request of the Borrower.



ARTICLE VI




Negative Covenants




Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:



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



(a) Indebtedness created under the Loan Documents;




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




(c) Indebtedness of (i) any Loan Party to any other Loan Party, (ii) any Subsidiary to
any Loan Party and (iii) any Subsidiary this is not a Loan Party to any other Subsidiary
that is not a Loan Party;




(d) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary
of Indebtedness of the Borrower or any other Subsidiary;




(e) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition thereof (including
the acquisition of such assets through the purchase of capital stock or other equity
interests of a Person holding such assets), and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal amount thereof;
provided that (i) such Indebtedness is incurred prior to or within ninety (90) days
after such acquisition or the completion of such construction or improvement and (ii) the
aggregate principal amount of Indebtedness permitted by this clause (e) shall not exceed
$20,000,000 at any time outstanding;




(f) Indebtedness of the Borrower or any Subsidiary as an account party in respect of
trade letters of credit;




(g) Indebtedness of the Borrower or any Subsidiary Guarantor secured by a Lien on any
asset of the Borrower or any Subsidiary; provided that the aggregate outstanding
principal amount of Indebtedness permitted by this clause (g) shall not in the aggregate
exceed $15,000,000 at any time;




(h) Swap Obligations of the Borrower or any Subsidiary arising under any Swap Agreement
permitted under Section 6.05.




(i) Indebtedness of any Subsidiary of the Borrower which is not a Subsidiary Guarantor;
provided that the aggregate outstanding principal amount of Indebtedness permitted
by this clause (i) shall not in the aggregate exceed $10,000,000 at any time; and




(j) other unsecured Indebtedness (including unsecured Subordinated Indebtedness) of the
Borrower or any Subsidiary Guarantor not otherwise permitted by this Section 6.01 so long as
the Borrower is in compliance, on a pro forma basis acceptable to the Administrative Agent
after giving effect to the incurrence of such Indebtedness, with the financial covenants
contained in Section 6.11.



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



(a) Permitted Encumbrances;




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




(c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall
not apply to any other property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date of such acquisition or
the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount thereof;




(d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower
or any Subsidiary; provided that (i) such security interests secure Indebtedness
permitted by clause (e) of Section 6.01, (ii) such security interests and the Indebtedness
secured thereby are incurred prior to or within ninety (90) days after such acquisition or
the completion of such construction or improvement and (iii) such security interests shall
not apply to any other property or assets of the Borrower or any Subsidiary;




(e) Liens in connection with Indebtedness permitted by clauses (g) or (i) of Section
6.01;



(f) Liens securing Indebtedness owed to the Borrower or any Subsidiary Guarantor by any
Subsidiary that is not a Domestic Subsidiary;



(g) rights of holders of notes or debentures issued by the Borrower or any Subsidiary in
deposits placed in trust to legally or “in substance” defease such notes or debentures; and



(h) Liens consisting of pledges of cash collateral or government securities to secure, on a
mark-to-market basis, obligations under Swap Agreements, so long as the aggregate value of such
collateral does not exceed $5,000,000 at any one time outstanding.



SECTION 6.03. Fundamental Changes. (a) The Borrower will not, and will not permit
any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or any of its assets, or any of the Equity
Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing:




(i) any Subsidiary or other Person may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation;




(ii) any Subsidiary or Person may merge into any Subsidiary in a transaction in which
the surviving entity is a Subsidiary (provided that any such merger involving a Subsidiary
Guarantor must result in a Subsidiary Guarantor as the surviving entity); provided
that any such merger involving a Person that is not a wholly owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section 6.04;




(iii) the Borrower or any Subsidiary may sell, transfer, lease or otherwise dispose of
its assets to the Borrower or to another Loan Party;




(iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith
that such liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders;




(v) the Borrower and its Subsidiaries may (A) sell inventory and excess damaged,
obsolete or worn out assets, in each case in the ordinary course of business (B) make
payments for property and services used by the Borrower or any Subsidiary in the ordinary
course of business, (C) sell Permitted Investments, (D) make any disposition resulting from
a casualty or condemnation of property or assets and (E) make any disposition of overdue
accounts receivable in the ordinary course of business in connection with the compromise or
collection thereof;




(vi) the Borrower and its Subsidiaries may enter into Sale and Leaseback Transactions
permitted under Section 6.10;




(vii) the Borrower or any Subsidiary may sell, transfer, lease or otherwise dispose of
its assets so long as the assets sold or disposed of pursuant to this clause (vii) in any
fiscal year of the Borrower do not exceed, in the aggregate, ten percent (10%) of
Consolidated Tangible Assets as of the beginning of such fiscal year;




(viii) loans, advances, guarantees and investments in joint ventures to the extent any
such joint venture is engaged in a business satisfying the requirements of Section 6.03(b);
and




(ix) dispositions of assets expressly permitted by Sections 6.02, 6.04, 6.06 or 6.07.



(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.



SECTION 6.04. Loans, Advances, Guarantees and Acquisitions. The Borrower will not,
and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to
any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any
evidences of indebtedness of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except



(a) Permitted Acquisitions;



(b) loans or advances made by the Borrower to any Subsidiary Guarantor and made by any
Subsidiary Guarantor to the Borrower or any other Subsidiary Guarantor;



(c) Guarantees constituting Indebtedness permitted by Section 6.01;



(d) loans and advances made by the Borrower and its Subsidiaries to their officers and
employees for moving, relocation and travel expenses and other similar expenditures, in each case
in the ordinary course of business, so long as the aggregate outstanding principal amount thereof
does not exceed $1,000,000 at any time;



(e) Swap Obligations arising under Swap Agreements permitted under Section 6.05;



(f) Permitted Investments;



(g) investments (including debt obligations) received in connection with (i) the bankruptcy or
reorganization of suppliers and customers and in good faith settlement of delinquent obligations
of, and other disputes with, customers and suppliers arising in the ordinary course of business and
(ii) the disposition of assets permitted under Section 6.03;



(h) loans by the Borrower to officers, directors and employees of the Borrower and its
Subsidiaries in connection with their purchase of capital stock of the Borrower, so long as no cash
is paid by the Borrower to any such Persons in connection with such purchase;



(i) transactions permitted under Section 6.03(viii);



(j) so long as no Default exists or would occur after giving effect thereto, other investments
not otherwise permitted by clauses (a) through (i) above in an aggregate outstanding principal
amount not to exceed $25,000,000 at any time;



(k) other loans, advances and guarantees not otherwise permitted by this Section 6.04 so long
as the aggregate outstanding principal amount thereof does not exceed $25,000,000 at any time.



SECTION 6.05. Swap Agreements. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in
respect of Equity Interests of the Borrower or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary.



SECTION 6.06. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among
the Borrower and its wholly owned Subsidiaries not involving any other Affiliate, (c) transactions
permitted under Sections 6.01, 6.02 and 6.04, (d) any transaction with any joint venture described
in Section 6.03(viii) to the extent the Borrower or Subsidiary in good faith believes that such
transaction is reasonably advisable to facilitate the operations of such joint venture and the
financial returns to the Borrower and its Subsidiaries and (e) any Restricted Payment permitted by
Section 6.07.



SECTION 6.07. Restricted Payments. The Borrower will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Borrower may declare and pay dividends with respect to its
Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may
declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make
Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans
for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its
Subsidiaries may make any other Restricted Payment so long as (i) no Default or Event of Default
has occurred and is continuing or would arise after giving effect thereto and (ii) the Borrower and
the Subsidiaries are in compliance on a pro forma basis, both before and immediately after giving
effect to such Restricted Payment, with the covenants contained in Section 6.11.



SECTION 6.08. Subordinated Indebtedness and Amendments to Subordinated Indebtedness
Documents. The Borrower will not, and will not permit any Subsidiary to, directly or
indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or
otherwise acquire, any Subordinated Indebtedness, or any Indebtedness from time to time outstanding
under the Subordinated Indebtedness Documents, at any time prior to the Maturity Date.
Furthermore, the Borrower will not, and will not permit any Subsidiary to, amend the Subordinated
Indebtedness Documents or any document, agreement or instrument evidencing any Indebtedness
incurred pursuant to the Subordinated Indebtedness Documents (or any replacements, substitutions,
extensions or renewals thereof) or pursuant to which such Indebtedness is issued, without the prior
written consent of the Administrative Agent.



SECTION 6.09. Changes in Fiscal Year. The Borrower will not, nor will it permit any
of its Subsidiaries to, change its fiscal year from the basis in effect on the Effective Date.



SECTION 6.10. Sale and Leaseback Transactions. The Borrower shall not, nor shall it
permit any Subsidiary to, enter into any Sale and Leaseback Transaction, other than Sale and
Leaseback Transactions (a) in respect of which the net cash proceeds received in connection
therewith does not exceed $15,000,000 in the aggregate during any fiscal year of the Borrower,
determined on a consolidated basis for the Borrower and its Subsidiaries or (b) relating to
property (i) owned by the Borrower or a Subsidiary for less then 180 days prior to the consummation
of such Sale and Leaseback Transaction or (ii) otherwise acquired with the intention of making it
subject to a Sale and Leaseback Transaction.



SECTION 6.11. Financial Covenants.



(a) Maximum Leverage Ratio. The Borrower will not permit the ratio (the
“Leverage Ratio”), determined as of the end of each of its fiscal quarters ending on and
after December 31, 2006, of (i) Consolidated Total Indebtedness to (ii) Consolidated EBITDA for the
period of four (4) consecutive fiscal quarters ending with the end of such fiscal quarter, all
calculated for the Borrower and its Subsidiaries on a consolidated basis, to be greater than 3.0 to
1.0.



(b) Minimum Interest Coverage Ratio. The Borrower will not permit the ratio (the
“Interest Coverage Ratio”), determined as of the end of each of its fiscal quarters ending
on and after December 31, 2006, of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense
for the period of four (4) consecutive fiscal quarters ending with the end of such fiscal quarter,
all calculated for the Borrower and its Subsidiaries on a consolidated basis, to be less than 3.0
to 1.0.



ARTICLE VII




Events of Default




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



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



(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this Agreement, when
and as the same shall become due and payable, and such failure shall continue unremedied for a
period of three (3) Business Days;



(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary in or in connection with this Agreement or any other Loan Document or any amendment or
modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection with this Agreement or
any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove
to have been incorrect in any material respect when made or deemed made;



(d) (i) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 or in
Article VI or (ii) any Loan Document shall for any reason not be or shall cease to be in full force
and effect or is declared to be null and void, or any party thereto takes any action for the
purpose of terminating, repudiating or rescinding any Loan Document or any of its obligations
thereunder;



(e) the Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or perform
any covenant, condition or agreement contained in this Agreement (other than those specified in
clause (a), (b) or (d) of this Article) or any other Loan Document, and such failure shall continue
unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to
the Borrower (which notice will be given at the request of any Lender);



(f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness (other than Indebtedness
incurred under this Agreement), when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of five (5) Business Days;



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



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



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



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



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



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



(m) a Change in Control shall occur;



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



ARTICLE VIII




The Administrative Agent




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



The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.



The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof
is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or
any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.



The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.



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



Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the
right subject, at any time at which no Default is in effect, to the prior written consent of the
Borrower (which shall not be unreasonably withheld or delayed), in consultation with the Borrower,
to appoint a successor. If no successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty (30) days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with
an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article
and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Administrative Agent.



Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.



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



ARTICLE IX




Miscellaneous




SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:




(i) if to the Borrower, to it at 9705 Patuxent Woods Drive, Columbia, Maryland 21046,
Attention of Sean R. Creamer, Chief Financial Officer (Telecopy No. (410) 312-8613;
Telephone No. (410) 312-8000);




(ii) if to the Administrative Agent, to JPMorgan Chase Bank, National Association, Loan
and Agency Services Group, 10 South Dearborn Street, Floor 19, Attention of Marlene Zanoria
(Telecopy No. (312) 385-7096), with a copy to JPMorgan Chase Bank, National Association, 277
Park Avenue, Floor 14, New York, New York 10017, Attention of Susan Atha (Telecopy No. (646)
534-3078);




(iii) if to the Issuing Bank, to it at JPMorgan Chase Bank, National Association, Loan
and Agency Services Group, 10 South Dearborn Street, Floor 19, Attention of Marlene Zanoria
(Telecopy No. (312) 385-7096), with a copy to JPMorgan Chase Bank, National Association, 277
Park Avenue, Floor 14, New York, New York 10017, Attention of Susan Atha (Telecopy No. (646)
534-3078);




(iv) if to the Swingline Lender, to it at JPMorgan Chase Bank, National Association,
Loan and Agency Services Group, 10 South Dearborn Street, Floor 19, Attention of Marlene
Zanoria (Telecopy No. (312) 385-7096), with a copy to JPMorgan Chase Bank, National
Association, 277 Park Avenue, Floor 14, New York, New York 10017, Attention of Susan Atha
(Telecopy No. (646) 534-3078); and




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



(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in
its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.



(c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.



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



(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement
or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any of the provisions of
this Section or the definition of “Required Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder or (vi) release all or substantially all of the
Subsidiary Guarantors from their obligations under the Subsidiary Guaranty, without the written
consent of each Lender; provided further that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent, the Issuing Bank or the
Swingline Lender hereunder without the prior written consent of the Administrative Agent, the
Issuing Bank or the Swingline Lender, as the case may be.



(c) If, in connection with any proposed waiver, amendment or modification of any of the
provisions of this Agreement as contemplated by clauses (i) through (vi) of Section 9.02(b), the
consent of the Required Lenders is obtained but the consent of one or more of such other Lenders
whose consent is required is not obtained, 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
Section 9.04), all its interests, rights and obligations under this Agreement to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment) and shall grant its consent to the proposed waiver, amendment or
modification; provided, that (i) the Borrower shall have received the prior written consent
of the Administrative Agent (and if a Commitment is being assigned, the Issuing Bank), which
consent shall not unreasonably be withheld, and (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts).



SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i)
all reasonable and documented 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 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 Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in connection with the
Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.



(b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement
or instrument contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses 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.



(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount
(it being understood that the Borrower’s failure to pay any such amount shall not relieve the
Borrower of any default in the payment thereof); 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, the Issuing Bank or the Swingline Lender in its
capacity as such.



(d) To the 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 or thereby, the Transactions, any Loan or Letter of Credit or the
use of the proceeds thereof.



(e) All amounts due under this Section shall be payable not later than fifteen (15) days after
written demand therefor.



SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and
the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.




(b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at the time owing
to it) with the prior written consent (such consent not to be unreasonably withheld, it
being understood and agreed that it shall be reasonable for the Borrower to withhold consent
for an assignment to an assignee if such assignee is a Foreign Lender which would require
the Borrower to withhold amounts in respect of interest payments to such Foreign Lender) of:




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




(B) the Administrative Agent; and




(C) the Issuing Bank.




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




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




(B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement,
provided that this clause shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender’s rights and obligations in respect
of one Class of Commitments or Loans;




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




(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.



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



“Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.



(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Bank and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.



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



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



(ii) A Participant shall not be entitled to receive any greater payment under Section 2.15 or
2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.17(e) and be subject to Section 2.7(f) as though it were a
Lender.



(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.



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



SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.



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



SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Lender may have.



SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.



(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the Borrower or its properties
in the courts of any jurisdiction.



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



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



SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED 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 PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.



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



SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the consent of the Borrower or
(h) to the extent such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative Agent, the Issuing Bank or
any Lender on a non-confidential basis from a source other than the Borrower. For the purposes of
this Section, “Information” means all information received from the Borrower relating to the
Borrower or its business, other than any such information that is available to the Administrative
Agent, the Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the Borrower 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 LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT TO
THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS
SUBSIDIARIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.



ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE
ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND THE OTHER LOAN PARTIES OR THEIR RESPECTIVE SECURITIES) AND ITS SECURITIES. ACCORDINGLY, EACH
LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW



SECTION 9.13. USA PATRIOT Act. Each Lender that is subject to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”) hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Act.



[Signature Pages Follow]

6


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



ARBITRON INC.


as the Borrower



By /s/ Sean R. Creamer


Name: Sean R. Creamer

Title: EVP & CFO



7



JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,





individually as a Lender, as the Swingline Lender, as the Issuing


Bank and as Administrative Agent



By /s/ Susan H. Atha


Name: Susan H. Atha

Title: Vice President



8




CITIBANK, N.A.,



individually as a Lender and as Co-Syndication Agent



By /s/ JaHan Wang


Name: JaHan Wang

Title: Vice President



9



WACHOVIA BANK, NATIONAL ASSOCIATION,



individually as a Lender and as Co-Syndication Agent



By /s/ Daniel W. O’Donnell


Name: Daniel W. O’Donnell

Title: Senior Vice President





10





CITIZENS BANK OF PENNSYLVANIA,



individually as a Lender and as Documentation Agent



By /s/ Devon L. Starks


Name: Devon L. Starks

Title: Senior Vice President





11





U.S. BANK NATIONAL ASSOCIATION,



as a Lender



By /s/ Michael P. Dickman


Name: Michael P. Dickman

Title: Vice President U.S. Bank, N.A.

12





THE BANK OF NEW YORK,



as a Lender



By /s/ Steven J. Correll


Name: Steven J. Correll

Title: Vice President




13